The conversation between the book agent and the defendant, before the signing of the order, was rightly excluded. It was an attempt to vary the effect of a written contract which contained an express stipulation that it was un*423conditional; Faucett v. Currier, 109 Mass. 79; Mears v. Smith, 199 Mass. 319; and the excluded evidence was insufficient to sustain the defense of fraud. Knowlton v. Keenan, 146 Mass. 86. American Soda Fountain Co. v. Spring Water Carbonating Co. 207 Mass. 488.
But we are of opinion that the court should have submitted the case to the jury, instead of directing a verdict for the plaintiff for the full amount due under the contract at the date of the writ. On the issue of liability it was incumbent upon the plaintiff to prove that his assignor had complied with all the terms of its contract, which included an agreement to send to the defendant a copy of the Scientific American for one year. There was evidence from which the jury could find that the vendor did not send the paper after May 25, 1909, and that it thereby failed to perform the contract on its part.
The issue of damages also should have been submitted to the jury. The vendor’s failure to forward the paper after the defendant had returned the books tended to support the defendant’s claim that the return of the books had been accepted, and that the vendor thereby lost its right to recover the entire contract price. So far as the record shows it retained the books from May 25, 1909, to August 5,1909, without notifying the defendant that the acceptance of the books was refused, or that they were held subject to his order. And the jury might have deemed it significant on this question that the letter of April 25, 1910, was the first to claim, in terms at least, the full contract price. Barrie v. Quinby, 206 Mass. 259. Without further considering the evidence it is apparent that the ruling was erroneous.
Under the agreement of counsel the entry must be
Judgment for the defendant.