41 N.Y.S. 909 | N.Y. App. Div. | 1896
This action was brought to recover damages for a breach of a contract, whereby the plaintiff was to perform certain work, labor
The plaintiff, to prove his case, introduced three letters written by the defendant Ryer, with secondary evidence of the contents of the letters written by plaintiff in answer thereto, the original letters written by plaintiff not being produced, evidence having been given that the same had been lost or destroyed. The making of "the contract sued on depended upon the answer by plaintiff to the defendants’ letter of March 1, 1888. The contents of this letter were proved by the evidence of plaintiff. The substance of that answer was, “ I would accept the terms. He said in his letter that $75 was the limit, and, joking, I wrote that ‘ I will play the limit.’ I accepted the terms.” The plaintiff further testified that he did not add any condition; and it is this letter written by the plaintiff in answer to the defendants’ letter of March 1,1888, which the plaintiff alleges made the contract sued on, and which is alleged to he a contract for a specified time, viz., for a theatrical season, a period of forty weeks beginning in August, 1888.
In looking through the letters which have been produced and the testimony of the contents of letters not produced, we look in vain for any statement as to the period for which the plaintiff was to be employed. The first letter of defendant Ryer to the plaintiff, dated February 20, 1888, was a proposition to the plaintiff to take part in a venture of the defendants in the production of a new play which was to commence in August in the neighborhood of New York city.
The plaintiff also produced a letter from the defendant Byer, dated March 5, 1888, which contains this statement: “R’R’d fares, yes; Hotel Bills, nay, nay * * * $75.00 and railway fares.” To that letter it is not pretended that any reply was sent, and a question of fact was thus presented as to whether or not the plaintiff ever did accept in writing the defendant’s proposition to employ him at seventy-five dollars a week and railroad fares, whether in fact a contract was made by this correspondence between the par
The defendant having denied the receipt of the letter, as testified to by the plaintiff, and having testified that plaintiff’s letter contained anew proposition and not an acceptance of the terms of the letter of March first, the defendant was asked as to what took place between the defendant and Mr. Hart in respect to engaging Mr. Hart to take part in “ The Two Sisters.” That was objected to as incompetent, and the objection sustained. To that the defendants excepted. A series of questions was then asked the defendant as to what the final agreement was. Objections were made to most of these questions, and were sustained. The defendant, however, was finally allowed to testify that the plaintiff verbally acceded to the terms of seventy-five dollars a week and his railroad fares, and subsequently, on redirect examination, he was allowed to testify: “ At last we arranged matters that it should be for $75, his railway fares and two weeks’ notice to either side — that I could give him two weeks’ notice to quit, or he could give me two weeks’ notice that he would quit. There were other conversations, of course, but I don’t follow them up; I don’t remember them.” The testimony of the defendant as to the contract, having been made verbally between the plaintiff and the defendant Ryer after the return of the plaintiff in March, 1888, was corroborated by several witnesses as to interviews between plaintiff and Mr. Ryer at Mr. Ryer’s house.
We think that the finding of the referee upon this testimony, that any contract was finally made by these letters alone, is against the weight of evidence.- It depends entirely upon the recollection of the plaintiff as to the contents of a letter written several years before the trial. It is contradicted by the letter written by the defendant to the plaintiff, which the plaintiff produced, and from that it
In addition, we think that the referee erred in refusing to admit evidence of custom. The defendant called a witness Erlanger, who was a theatrical manager and familiar with the making of contracts in the theatrical profession. He was asked this question: “ In the making of contracts for the engagements of players to take parts in a new play, is there an established, well-understood custom or usage providing that either party shall have the right to cancel the contracts on two weeks’ notice ? ” This was objected to as irrelevant, incompetent and immaterial. That objection was sustained and defendants excepted. We think that this evidence was competent. As before stated, in none of the letters is there any statement made as to the period for which the engagement was to run. The only phrase in any of the letters that referred to any season is contained in the letter of March first, in which the defendant says: “ If you take it you will likely have as pleasant a season, or many of them, as you have ever had. That amount is our limit; surely a season at home is of some value to you.” The plaintiff was allowed to testify that a regular theatrical season was understood to mean forty or forty-one weeks, and thus the' plaintiff relied upon the custom in the theatrical business in New York to make out any.employment for any particular time. We think it was entirely competent for the defendant to prove that there is a well-established and under
There is one other question to which attention should be called. Upon cross-examination of the plaintiff he was asked: “ Had you any conversation with Mr. Ryer or with Mr. Thompson at any time in relation to the term of your engagement or as to the conditions under which you were to be engaged % ” That was objected to on the ground that the conversation was merged in the letter from the defendant Ryder to Mr. Hart, which expressly described the terms of the employment, and that objection was sustained on the ground that an agreement was made out in • the correspondence, and that, unless something happened subsequently to change its terms, the question was not proper. "We think it was error to exclude that question. As before stated, the contemporaneous construction which
There are many other exceptions to rulings of the referee upon questions of testimony. As there must be a new trial, the same questions may not be presented again, and it is not necessary that we should examine them.
The judgment should, therefore, be reversed and a new trial ordered before another referee, with costs to the appellants to abide the event.
Van Brunt, P. J., Barrett, Rumsky and O’Brien, JJ., concurred.
Judgment reversed, new trial ordered before another referee, with costs to appellants to abide event.