43 F. 821 | U.S. Circuit Court for the District of Southern Ohio | 1890
(orally.) The bill was filed yesterday, and a motion for a preliminary injunction argued. The complainants aver that on the 25th day of August, 1890, they entered into a contract in writing with the defendant Louis Ballenberg, who signed it by the hand of Paul F. Nicholson, agent, and who, although contracting in his own name, was acting for himself and his co-defendant, Powell Crosley, whereby it was agreed that the complainants, being proprietors and managers of an opera company known as the “Boston Ideal Opera Company,” should, on November 3, 1890, begin the rendition of the opera of “Fauvette” in the hall of the opera-house in Cincinnati known as “Pike’s Opera-House,” of which the defendants Crosley and Ballenberg were in possession as lessees or otherwise, having full control thereof, and power to let the same for the purposes contemplated by the said contract. The hill avers that by the terms of the contract said performances should begin on the 3d day of November, 1890, and continue until Saturday, November 8, inclusive; there being one performance each day, and one matinee. After setting forth the details of the contract, which provided, among other things, that the complainants should receive 70 per centum and the defendants 30 per centum of the gross proceeds of said performances, the complainants aver that said opera-house has not for several years been used as an opera-house or theater, that it was being remodeled and refitted, and that it was to be reopened as an opera-house on the date aforesaid of said first performance, and that it was stipulated in the contract that the rendition of the opera of “Fauvette” by the complainants, with their company, should he the first performance to be given
I have given to the examination of this case such care and attention as has been possible in the short time afforded me. It appears from the affidavits upon file that the defendant Ballenberg was, at the date of the contract set forth in the bill, in the employ of the defendant Crosley, but that he had no interest whatever in the lease of the opera-house. It appears from the affidavits of Ballenberg and of Crosley that Ballenberg had in fact no authority to make contracts for the services of theatrical or operatic troupes. He was authorized to receive propositions, and communicate them to Crosley; but no contract was to be made wdfhout the express approval of Crosley. It is not claimed that the contract in this case was so approved, and it is claimed that it must fall, so far as Mr. Crosley is concerned, because not within the áuthority conferred upon Ballenberg. Upon this point, it seems to me that the manager of a theater or opera-house occupies the position of a general agent, and therefore that a special limitation of his authority not communicated to or known by the manager-of a troupe with which he in fact makes a contract in the.
But I am not disposed to put the decision of this case upon that ground, nor am I disposed to enter upon the consideration of the controverted questions of fact respecting the condition of the Boston Ideal Opera Company, and its qualifications to render the opera in style requisite for successful performances. It is claimed on behalf of the defendants that, by reason of a change of conductors, and the retirement from the troupe of certain leading singers and of members of the chorus, the troupe was so weakened as not to he in condition to give performances that would draw paving houses. It is true that it is not claimed that these deficiencies are anything more than temporary, hut it is insisted that they are of so recent date that the troupe could not be restored to its own proper standard in time for these performances. On the other hand, it is insisted that the defendants are bound by the contract to accept the services of the troupe, even if the complaints made were well founded in fact, which they deny. I do not agree to this proposition. I think such a contract calls for a full troupe, up to its ordinary standard, just as the contract for the .services of a physician is a contract for the exercise, not only of the ordinary skill of the profession, but of the skill which he possesses, although he may be far above the average. But if the contract is for the services of a troupe, it cannot he avoided by averring that the performances of the troupe are not up to the standard of exi-ellonee recognized as necessary at the theater where the services were to be rendered. The person engaging the troupe is bound, in the absence of misrepresentation or fraud, to accept its performances if they arc up to its own standard. The affidavits as to the condition of the complainants’ troupe are conflicting. It is denied on their behalf that any changes have been made excepting for the better, and it is claimed that, as to the conductor, the leading singers, and the chorus, the troupe is as good as it ever has been, if not better. I shall not undertake to settle the dispute upon this feature of the case. It seems to me that other considerations, to which I shall now advert, are decisive.
I suppose that this practically disposes of the case, and that the bill might as well be dismissed; but, as counsel for the complainants is not present, I will not now make an order to that effect. ,