J. S. Strafford Publishing Co. v. N. Stetson & Co.

41 Pa. Super. 560 | Pa. Super. Ct. | 1910

Opinion by

Orlady, J.,

The plaintiff was a publisher of theatrical programmes, and secured an order from the defendant in writing, the substance of which is: “ Insert our advertisement in'the Keith’s Chestnut Street Theatre program for the theatrical season of 1902 and 1903,” and the sole controversy in this case turns on the interpretation to be given to the expression “theatrical season of 1902 and 1903.”

On the trial the defendant offered to prove, as shown by contracts made by him with advertisers in theatrical programmes, the duration of the theatrical season for 1902 and 1903, in the Broad street, Chestnut street, Park, Walnut street, Garrick and other theaters, and had the offer been coupled with the proposition that they were similar in kind or class to the new Keith’s Chestnut Street theater, the testimony should have been received, but lacking this, the objection thereto was properly sustained. Nor was the contract void for uncertainty, as urged by appellant, the effect to be given the term “theatrical season for 1902 and 1903” having been properly submitted to the jury as follows: “They made a contract with reference to Keith’s new Chestnut Street Theater, and they made a contract which had in it a latent ambiguity, that is, they did not specify, as they might have done, the number of weeks during which the contract was to be performed, but that must be explained by outside evidence. What is the common understanding of the term theatrical season in the business, looked at from the point of view of the parties at the time they made the contract in relation to Keith’s new Chestnut Street Theater.”

In the interpretation of a contract words are to be given their plain, ordinary and popular meaning, unless they have acquired a peculiar sense in respect to the particular subject-matter, or unless the contract shows that the parties used them in some other and peculiar sense. While the new Keith’s theater had been opened for but a few days at the time of making this contract, it was not pretended by the defendant that the general character of the théater was not known to him, nor is it claimed that it was not properly designated as a vaudeville theater, nor that the theatrical season for this particular theater was any different from that of the usual vaudeville theater. It appears from the evidence that the term “theatrical season,” has no general significance in the profession, but it has a special meaning when applied to different grades of amusement places, and that the word “theater” may refer to what is popularly known as standard or legitimate, to the opera, or to vaudeville entertainments. It is practically conceded by the defendant that there is a marked difference among the theaters in regard to the duration of their season, and that the “theatrical season” as applied to vaudeville theaters consists of continuous performances for the whole year, while the length of the season of grand opera and some standard theaters may and frequently does depend- upon whether there is a stock or permanent company, whether a particular building is used by companies staying for a period of time longer or shorter as may depend upon the popularity of the performance, or upon the particular time the exhibition is given, such as the holiday season, the spring season, the fall season. While the proof is not as satisfactory as it might have been made, there was sufficient in the record for the court below to submit to the jury the one controlling question. The meaning of the terms of art and technical phrases when employed in a contract may be proved by extrinsic evidence, and in so doing the rule which prohibits the introduction of evidence to alter, vary or explain a written contract is not violated. In receiving such evidence the court does no more than when it refers to a lexicon to ascertain the meaning of a word. It is the only means of ascertaining the intention of the parties when they enter into the agreement and use an ambiguous expression, and when its meaning can be thus ascertained it must control: Hostetter v. Park, 137 U. S. 30; 34 L. Ed. 568. In McWilliams v. Martin, 12 S. & R. 269, the words were held to be doubtful, and the point to be inquired into was to ascertain the intent of the parties. The court held that if the intent be as doubtful as the words, inquiry will not aid in the matter; but if inquiry will make it plain, we ought to put the construction on it which will best answer the intention even though the words be doubtful. In Lovering v. Miller, 218 Pa. 212, a theatrical contract in writing provided for an engagement for the regular season, but the contract did not disclose what was intended by the words “regular season,” it was held to be proper to receive parol evidence to show the common understanding in the theatrical business as to what that term included, and that with this evidence, the case should go to a jury to find the exact terms of the contract. See also Yost v. Anchor Fire Ins. Co., 38 Pa. Superior Ct. 594.

The length of the season at other theaters in the city was not material, unless they were of the same class as this particular theater, it being clearly shown that the theaters differ so radically in regard to their season that what was a custom in one, did not bind a person contracting in relation to another theater of an entirely different class or type. The case was fully and carefully tried in the court below, and we find no reversible error in the record presented to us.

The judgment is affirmed.