150 N.Y.S. 376 | N.Y. App. Div. | 1914
Lead Opinion
At the close of the evidence offered by the plaintiff with respect to the contract upon which he predicates his action, but before the close of his evidence relating to damages,. the court dismissed the complaint, and announced that the ground upon which it was dismissed was that the plaintiff had failed to show an enforcible contract. Before the complaint was dismissed the plaintiff presented some evidence tending to show a basis for the award of damages, provided he established a contract liability, and from the rulings of the court with respect to the evidence bearing on the question of damages it is evident that the court considered that plaintiff had established a prima facie case for the jury on the question of damages, and if not, that he could have sufficiently supplemented the evidence on that point if it would have been of any avail to him. The only question, therefore, presented by the appeal is whether the plaintiff proved a contract sufficiently definite to entitle him to recover.
The plaintiff and the defendant, who had been acquainted for a number of years, had an interview at the Lambs’ Club in the city of New York about the middle of September, 1906, and upon that interview and a subsequent conversation between them over the telephone this action principally depends. The plaintiff had been an actor for twenty-two years and had successfully played in many important roles, and the defendant had long been a playwright, and several of his productions had met with success. The testimony of the plaintiff stands uncontroverted and must be accepted on this review. He says that the defendant came to him on the occasion in question and related an interesting story, which pleased him, and he advised that it be dramatized; that defendant said that it had been dramatized; that he then said he would like to read it and would “like to get hold of it. I think I could place it for you; ” that defendant asked him why he thought so, and he replied: “I have no doubt of it by reason of the knowledge I have of certain managers’ requirements and I should be very glad to take it up and see if I could not locate it for you; ” that defendant asked, “ Have you ever done anything of this sort,” to
The evidence further shows that the plaintiff met the defend
The original agreement as shown by the testimony of plaintiff did not contemplate the payment of any commissions by defendant for the services to be rendered by plaintiff in placing the play; but the plaintiff was, nevertheless, to be compensated for his services by being employed to perform the leading part in the play. If, after the plaintiff had devoted time and energy in an endeavor to place the play according to the original agreement, the defendant had, without his consent, refused to be bound by the original agreement and had placed the play in disregard thereof, there can be no doubt but that the plaintiff would have had a cause of action against him
Iam of opinion, therefore, that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.
McLaughlin, Clarke and Scott, JJ., concurred.
Concurrence Opinion
I concur in the reversal of this judgment, as I think the plaintiff had established a cause of action which would entitle him to recover for the reasonable value of the services rendered by bim in presenting the play to Brady who afterwards made the contract with the defendant and produced the play. Under the original agreement, plaintiff was to have, as compensation for the services that he rendered, the right to appear, as the actor taking the part of the principal character in the play. Plaintiff, however, never produced a manager who would consent to the condition of the plaintiff acting the principal part and, therefore, he did not perform his part of the contract. The objection to the plaintiff performing in the play was made by the manager to whom the play was presented and the evidence is uncontradicted that the defendant did all he could to induce the manager to accept the play upon the conditions upon which it was first presented to him. At
Judgment reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.