317 Mass. 652 | Mass. | 1945
This is an action for breach of a written contract whereby the plaintiff was to furnish leased wire news reports to the defendant. The case was heard on a “statement of agreed facts” by a judge, who ordered judgment for the defendant. The plaintiff appealed.
The “statement of agreed facts” contained a letter which “may be submitted in evidence,” a computation which “may be considered by the court,” and a summary of lost profits as to which the “plaintiff will testify.” Accordingly, it is not an agreement upon “all the material ultimate facts on which the rights of the parties are to be determined by the law,” and is not a case stated but an agreement as to evidence. Frati v. Jannini, 226 Mass. 430, 431. Scaccia v. Boston Elevated Railway, 308 Mass. 310, 313, S. C., ante, 245, 249. The appeal lies, since the order appealed from was founded solely upon the “statement of agreed facts,” which is treated as part of the record, although the only “matter of law apparent on the record” is whether the order is warranted by the evidence. Pequod Realty Corp. v. Jeffries, 314 Mass. 713, 716, and cases cited. See Koshland v. Columbia Ins. Co. 237 Mass. 467, 471. The construction of the written contract set forth in the statement is treated as a question of law. Rizzo v. Cunningham, 303 Mass. 16, 20. Atwood v. Boston, 310 Mass. 70, 75. Bielanski v. Westfield Savings Bank, 313 Mass. 577, 581.
The contract, which is dated March 13, 1942, is on a printed form in which certain parts are typewritten. It provides for the sale with broadcasting privileges of daily leased wire news reports by the plaintiff (also known as International News Service) to the defendant, which is described as the owner of a radio station in West Yar-mouth, in return for weekly payments by the defendant. The contract also provides: “Seventh: . This agreement shall continue for five years from October 1st, 194% and shall thereafter renew itself continuously for periods of five years unless either party shall notify the other by registered letter received at least six months before the beginning of the first renewal period or any subsequent renewal periods, of
The question to be decided is whether the contract became effective only upon thirty days’ notice by the defendant, or whether it became effective in any event on October 1, 1942, and the thirty day provision was merely an option allowing the defendant upon such notice to make the contract effective at any earlier date. We are of opinion that the latter construction is the correct one. The contract is to be interpreted as a whole. Murray v. Edes Manuf. Co. 309 Mass. 395, 401. Bielanski v. Westfield Savings Bank, 313 Mass. 577, 581. If possible, reasonable effect, must be given to all its provisions. Weeks v. Wilhelm-Dexter Co. 220 Mass. 589, 592. Koshland v. Columbia Ins. Co. 237 Mass. 467, 471. Clark v. State Street Trust Co. 270 Mass. 140, 155. Ginsburg v. Jacobson, 276 Mass. 108, 110. Codman v. Hygrade Food Products Corp. 295 Mass. 195, 199. Crystal Concrete Corp. v. Braintree, 309 Mass. 463, 468. Its main purpose should be promoted where its language permits. Warren v. Merrifield, 8 Met. 93, 96. Eustace v. Dickey, 240 Mass. 55, 72. The same is true where the contract is partly printed and partly written or typewritten, although in case of conflict the printed part must yield to the other, which is more likely to represent the intent of the parties. Ball v. Wyeth, 8 Allen, 275, 278. Perry v. Wilson Bros. Inc. 260 Mass. 519, 521. Taber v. Beaudette & Graham Co. 262 Mass. 99, 103. Welch v. Gordon, 284 Mass. 485, 487. Malden Knitting Mills v. United
Although the judge could reject the evidence as to lost profits, breach of the contract entitled the plaintiff to nominal damages at least. Hagan v. Riley, 13 Gray, 515, 516. Todd v. Keene, 167 Mass. 157, 158-159. Damiano v. National Grange Mutual Liability Co. 316 Mass. 626, 629.
Order for judgment reversed.