6 N.Y.S. 474 | N.Y. Sup. Ct. | 1889
The position which the plaintiff occupied and assumed towards the defendant when he prepared the second contract, and got the defendant to execute it, was one which, in equity and good conscience, demanded from, him a disclosure of any and all facts as to his management under the first contract which, if known to her, might have prevented her from signing. The relation between them was a relation of express trust and confidence. The defendant was not a good business woman, and the plaintiff knew it. She had little or no real knowledge of the condition of the accounts under the first contract when the second contract was executed, and it is evident that she had implicit faith in Mr. Hill up to that time, and relied upon him to act for her interests no less than his own. See 2 Pom. Eq. Jur. § 902. Whether any facts really existed showing that the plaintiff had failed to fulfill his part of the first contract is a question in dispute between Miss Mather—to speak of the defendant by her stage name—and Mr. Hill. It seems plain, however, that her evidence tending to prove the- existence of such facts ought to have been received by the trial court. The true purpose of this action is to enforce a specific performance of the second contract by means of an injunction restraining the defendantfrom acting under any other theatrical manager than the plaintiff. But the second contract was executed before the first one had expired, and is expressly declared to be a continuation thereof. To entitle the plaintiff to a specific performance, or to an injunction which will have the same effect, equity requires that he shall show a fulfillment of the whole agreement on his part—the first contract as well as the second contract, or continuation—up to the time of bringing suit; and this was evidently the view of his counsel, for the complaint expressly alleges a due performance of the first contract by the plaintiff. The defendant denies it, the court finds it, and yet a very large number of questions designed to prove the contrary, and admissible for that purpose, were excluded, against the defendant’s objection and exception. This was error, and, irrespective of the other questions in the case, demands a reversal of the judgment.
The recitals in the second contract, inserted by Mr. Hill, to the effect that Miss Mather was satisfied with his business ability and with the general outcome of the contract just expiring, do not preclude the defendant from insisting that he has not fulfilled his obligations thereunder. She does not seek to vary or contradict the recitals. They were true when made. She was satisfied then; but with subsequent information has come dissatisfaction. Under the circumstances of this case the principles enunciated in Cooks v. Barker, 49 N. Y. 107, and Kenney v. Aitken, 9 Daly, 502, have no application.
The plaintiff insists that if the defendant wishes to rescind the second contract on account of fraud under the first she must return the $16,000 which she received under such prior agreement. As to this suggestion, it is to be observed that the question here is not.one of rescission, but whether the case calls for the equitable interference of the court by way of injunction; and, further, that the defendant was paid, not a stipulated salary, but a percentage of the net profits of her performances under Mr. Hill’s management, and
With reference to another trial it may be well to say a few words in regard to the point made by the learned counsel for the defendant that the contract is not mutually binding upon the parties. We do not think it is bad for want of mutuality. That objection might apply to the second contract if it stood alone, but not when it is considered as a continuation of the first. In the first contract Miss Mather undertook to act under the management of Mr. Hill in such plays as he might produce, in such cities and theaters, and at such times, as he might direct, “to commence on or about June 4, 1881, and continue during the acting weeks of six years.” Mr. .Hill accepted “the above contract on the terms and conditions therein stipulated,” and bound himself to pay Miss Mather 25 per cent, of the net profits for the season commencing on •or about September 1, 1882, and 50 per cent, during each season thereafter. It seems to us that the contract fairly imports an obligation on the part of Mr. Hill to produce plays enough to give Miss Mather employment in “the acting weeks” of every year, which presumably means during the ordinary •dramatic season; but, for th.e reasons previously given, the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.