2 N.Y. St. Rep. 108 | N.Y. Sup. Ct. | 1886
Tbe complaint set forth tbe making of an agreement between tbe parties, by wbicb tbe defendants were authorized to produce and perform a dramatic composition of tbe plaintiff, entitled “ Her Last Hope.” That agreement is annexed to the complaint and forms a part of it. By its stipulations tbe right to produce and present tbe play was secured to tbe defendants. They undertook to make the disbursements necessary for that purpose not exceeding tbe sum of two thousand dollars ($2,000), and to employ tbe plaintiff in tbe principal role of one of tbe characters of tbe play. And out of the net profits resulting from tbe performance, tbe plaintiff, it was agreed, should receive fifty per cent and tbe defendants tbe same amount. They also agreed faithfully to fulfill on tlieir part all tbe duties and obligations arising under tbe contract to tbe best of their abibty, and to do and perform all things requisite for a faithful performance thereof. Tbe complaint alleges tbe failure of the defendants to fulfill their obligations under tbe agreement, and instances are repeated where, in consequence of such failure, tbe performance of tbe play proved to be unattractive and unremunera-tive. Tbe complaint also contains tbe allegations that the plaintiff, after such failure to observe and fulfill the obligations of tbe agreement on tbe part of tbe defendants, rewrote tbe play and gave it tbe name of “ Black Mail,” and was about to produce it at the Union Square Theatre, in tbe city of New York, and that be was apprehensive that tbe defendants would restrain and enjoin that production. These facts are admitted by tbe demurrer. But it does not follow from them that tbe plaintiff was entitled to an injunction restraining tbe defendants from taking legal proceedings to prevent
But from the allegations contained in the complaint, and admitted by the demurrer, it is clear that the defendants have substantially failed to perform the agreement made by them for bringing out this play. And by reason of that failure they have placed the plaintiff in a situation in which he is entitled to rescind the agreement. For it is “ the legal right of every contracting party to hold himself absolved from his obligation when the other contracting party has failed to keep some condition precedent which he is bound to perform.” (Higgins v. Del., L. and W. R. R. Co., 60 N. Y., 553-557.) And where, by reason of the misconduct of the defendants, they have failed to perform the agreement entered into, as they have according to the admitted allegations of the complaint in this case, an action may be maintained to rescind and cancel the •agreement itself. (McHenry v. Hazard, 45 N. Y., 580.)
The equitable principle upon which this jurisdiction is founded is: “ If an instrument ought not to be used or enforced it is against ■conscience for the party holding it to retain it, since he can only retain it for some sinister purpose.” * * * “ If it is a mere written agreement, solemn or otherwise, still while it exists it is always liable to be applied to improper purposes; and it may be vexatiously litigated at a distance of time when the proper evidence to repel the claim may have been lost or obscured, or when the ■other party may be disabled from contesting its validity with as much ability and force as he can contest it at the present moment.” (2 Story’s Eq. Jur. [5th ed.], § 700.)
The case, as it has been disclosed by the plaintiff, is within this equitable principle. The defendants, by their misconduct, have
The judgment should be reversed and a judgment entered overruling the demurrer, with costs, and with leave to the defendants to answer upon payment of the costs of the demurrer and the costs and disbursements of the appeal.
Judgment reversed; judgment ordered as directed in opinion.