242 Mass. 527 | Mass. | 1922
The plaintiff and the defendant executed an agree
Paragraph “Second: (a)” of the agreement is as follows: “The Artist [the plaintiff] agrees to render his exclusive services to the Producer [the defendant] for all performances in each week in which he shall be required to appear and that may be lawfully given, and the Artist stipulates that such services shall be rendered to the full and complete satisfaction of the Columbia Amusement Company in its exclusive judgment in accordance with the terms and conditions of the franchise agreement granted by said Columbia Amusement Company hereinbefore mentioned, with which conditions the Artist hereby agrees that he is familiar, and which it is agreed are to be regarded as a part hereof.” The “franchise agreement” so called, in substance provides that the defendant’s show shall at all times be produced in a manner satisfactory to the Columbia Amusement Company “in its sole and exclusive judgment,” and that the defendant will make such changes “in either the scenic production and equipment or the personnel of his show as the . . . (Columbia Amusement Company) may require from time to time, within twenty-one (21) days after written notice of such requirements shall have been sent to him or his agent . . . by registered mail or telegraph.”
The plaintiff began his employment under the contract on or about August 18,1919, and continued to render services until September 13 following, when he says he was wrongfully discharged by the defendant. The defendant testified that he never gave the plaintiff any notice and never discharged him, but that he left voluntarily. A copy of the contract is annexed to the plaintiff’s declaration.
As the plaintiff’s services were to be rendered to “the full and complete satisfaction of the Columbia Amusement Company,” the defendant’s liability is conditional. To recover the plaintiff must prove that the services rendered by him were satisfactory to the amusement company. We cannot agree with his contention that the burden rested upon the defendant to show that the company was not satisfied in order to avoid liability. Whelton v. Tompson, 121 Mass. 346. Newton Rubber Works v. Graham, 171 Mass. 352. Farmer v. Golde Clothes Shop, Inc. 225 Mass. 260.
Even if the work performed would be satisfactory to a reasonable man, if the amusement company, acting in good faith, was dissatisfied with it, the plaintiff cannot recover. Williams Manuf. Co. v. Standard Brass Co. 173 Mass. 356. Farmer v. Golde Clothes Shop, Inc., supra.
It is the contention of the plaintiff that he was wrongfully discharged by the defendant, and the jury undoubtedly so found, having returned a verdict in his favor.
The question is whether there was any evidence to warrant a finding that the plaintiff’s services were satisfactory to the amusement company. In the absence of such evidence, he would be barred from recovery for a breach of the contract, assuming that the defendant acted in good faith and was not actuated by some ulterior motive, of which there is no evidence. Williams Manuf. Co. v. Standard Brass Co., supra. Farmer v. Golde Clothes Shop, Inc., supra.
The facts which could have been found from the plaintiff’s testimony, that he worked in theatres controlled by the company and was paid therefor by the defendant until he was discharged, that his acting was well received by the audiences, that no representative of the company or of the defendant expressed any dissatisfaction with his services, that the company never gave written notice to the defendant to make any change in the personnel of the show as required by the franchise agreement, do not warrant an inference that the company was satisfied with the plaintiff’s services. Although the burden rested upon the plaintiff to prove that the services were rendered to the “full and complete satisfaction of the . . . Company in its exclusive judgment,” we are unable to find any evidence to that effect.
The rule that the burden is on the employer to allege and prove
In the opinion of a majority of the court, as the plaintiff failed to prove that he performed the services contracted for to the satisfaction of the amusement company, the motion of the defendant that a verdict be directed in his favor should have been granted.
Exceptions sustained.