Greenleaf v. GeraldGreenleaf v. Gerald
Thе defendant signed an order and contract directed to the New England Magazine, Boston, Mass., in whiсh he requested that one copy of a work entitled “Men of Progress,” consisting of one volumе of portraits and biographical sketches of
In an action by the assignee under a written assignment of a claim growing out of this contrаct, the defendant contended that the contract was void and imposed no liability upon him bеcause he was induced to execute it by means of false and material representаtions, relied upon by him, as to the character of the work which was to be published, made by the аgent of the publisher who solicited his subscription, and at the time of the execution of the cоntract.
The defendant introduced evidence tending to show that certain representations were made to him, before he signed the contract, relative to the number of persons in the town in which he lived who were to be solicited to have their biographical sketches and portraits published in this work, and also as to the whole number of persons whose sketches and pоrtraits were to be published; that these representations were false, that they were reliеd upon by him and that he was thereby induced to execute the contract.
The defendant’s counsel requested the court to instruct the jury, in effect, that if these representations were made, and were false, and were relied upon by the defendant who was thereby induced to make thе contract, the action could not be maintained; the object of these requests evidently being to obtain an instruction that the alleged false representations were material. Thе presiding judge did not give the requested instructions, nor did he in his charge instruct the jury as to whether or not the аlleged false representations, if made as claimed by the defendant, were material. But hе submitted this question as one of fact to the jury for determination.
This was erroneous. The question whethеr or not a false representation, whether it is relied upon by the plaintiff to support an аction for deceit, or by a defendant to avoid a contract, because of deсeit is material, is one of law for the court, not of fact for the jury. This was fully settled in this state in the case of Caswell v. Hunton, 87 Maine, 277.
The contention оf the defendant was, and he introduced evidence tending to prove, that the agent of the рublisher, who obtained his subscription for this work, represented to him at the time that only ■ three other rеsidents of the town, in which the defendant lived, would be solicited to become subscribers to this work and to have their biographical sketches and portraits published therein. And also that the portrаits and sketches of only three hundred persons in all would be published therein.
We think that these were material representations, and that if all of the other necessary elements were proved to exist, a contract induced thereby could not be enforced. They were representations relative to the character and contents of a book that was to be subsequently published; and while ordinarily it would be no defense to a subscriber to a book to be published thаt it contained more than it was represented it would contain, this is not true with reference to a work of this particular character. The inducement held out to a person, in order to obtain from bim such a contract as this, is not simply that the subscriber may obtain a copy of the boоk, but that he may have the pleasure of seeing, and of knowing that others will see, his own sketch and portrait published therein. Under these circumstances the greater the number of persons whosе sketches and portraits are published, the less distinction to. each. This defendant was to have his sketch published as one of the “ representative men of the State of Maine.” It very likely wаs not nearly as satisfactory to him to be included among some six hundred representative men in thе state, as it would have been to have been one of only half that number. We think, therefore, that the failure to instruct the jury that these representations were material was prejudicial to the defendant as well as erroneous.
This disposes of the case and makes it unnecessary to consider the other exception.
Exceptions sustained.