54 F. 439 | 8th Cir. | 1893
(after stating the facts.) The contract between the parties, in legal effect, is a contract of partnership. By its terms one party contributes to the business of the partnership the use of the theater building, and is to pay certain expenses incident to the use thereof, and the other party contributes his time and skill in the management and conduct of the business, and is to pay a fixed sum per month for lighting and heating the building,
*‘If that were the rule of the court, if a Mil would In no case lie to compel a man to observe the covenants of a partnership deed unless the bill seeks a dissolution of the partnership, it is obvious that a person fraudulently inclined might, of his own mere will and pleasure, compel bis copartner to submit to the alternative of dissolving a partnership, or ruin him by a continued violation of the partnership contract.”
This doctrine is well settled. High, Inj. § 1330, and cases cited.
It is not controverted that the defendants in the original bill ejected .the complainant’s manager and employes,"and took possession of the leased premises, if not forcibly, certainly against their will and vehement protest. The contract gives the lessor the right to re-enter without process of law for a breach of any of its covenants by the lessee; and the material question, and the one upon which the case hinges, is, did the lessee fail to perform any of his covenants contained in the lease, for the breach of which the lessor was entitled to re-enter? The right to re-enter is rested chiefly on alleged breadles of the following clause of the contract:
“The party of the first pare further agrees to maintain and operate the theater as a staidly first-class place of amusement, and that no attractions shall be booked at (he said theater of a questionable character, or such as would not be regarded as first-class by the managers of the foliowin-g theaters: The Mew Broadway or Wallaek's, A. M. Palmer’s or the Byeeuin, of New York; McVTcker’s, Hooley’s Chicago Opera House, or the Columbia, Theater, of Chicago; the Olympic or Grand Opera House of St. Louis.”
The proper construction of this clause of the contract is not entirely free from difficulty; but, in the light of the testimony in the case, we have had no difficuliy in arriving at a satisfactory conclusion. We have read the testimony very carefully, and are not satisfied that the complainant did not “maintain and operate the theater as a strictly first-class place of amusement,” or that he booked for the theater attractions “of a questionable character,” as these phras
“I think you have done a very good thing in securing the ‘Clemenceau Case,’ Margaret Mather, and Sullivan, [John L. Sullivan, the prize fighter.] While some people may say that the Sullivan attraction is not just the right thing, still I am satisfied that it cannot hurt the house, and it will certainly draw a large amount of money. * ⅜ * I helieve the ‘Clemenceau*445 Case’ attraction will be a tremendous liit. The fact of its haying been advertised as it lias been in New York will certainly draw tremendous houses for a few nights, pique Oie curiosity of the vulgar, and even the educated, and you are sure of drawing money out of their pockets.”
It is quite clear from the testimony that no attractions were booked for this theater which did not, in point of dramatic excellence and moral tone, equal the attractions which Mr. Bush, in his letter, specially approved and indorsed. Assuming, as we must, that both parties "to this contract regarded these attractions as first-class, and not of a questionable character, then it is apparent that no attraction was produced at the Broadway Theater by the complainant which was an infraction of the contract, according to the standard erected by the parties themselves. Mr. Bush is not the only' witness who makes the box receipts, and not the moral tone and dramatic excellence of the play, the test of its being a first-class attraction. But, undoubtedly, this test cannot be accepted as the best and only one. An attraction of the highest dramatic excellence may be played at a loss, and one of a highly questionable character at a profit. Plays which unite the highest dramatic excellence with large profits are, in the opinion of theatrical managers, ideal first-class attractions. Yet they all agree that plays which fall below this ideal standard are nevertheless ranked as first-class attractions. But it is said that the contract commits the decision of this question to the managers of certain named theaters.- If this is true, in the sense that their determination of the question is to he binding upon the parties and the court, it is because the parties have by their contract constituted them arbitrators for that purpose. Assuming, but not deciding, that this fluctuating body of managers are constituted arbitrators, and that under the contract they are the sole arbiters of this question, then it, is very clear the defendants have failed to establish the alleged breach of the covenant by the complainant, upon which the right to re-enter is rested. At common law, all those named as arbitrators must act, and they must all act together, and they must all concur in the award, unless the parties have agreed that it ma,y be made by less than all. The authorities to this effect are uniform in England and in this country. Buss. Arb. 216; Morse, Arb. 151,162. The defendants have produced no award of the arbitrators, and have not shown, in any mode, a concurrence of opinion among them, that a single attraction produced at the Broadway Theater under the complainant’s management was not first-class, or was of a questionable character. The Colorado Code has not made any change in the common-law rule on this subject which affects this case. The Civil Code of that state of 1887 (section 285, p. 180), provides that “any arbitrator may administer oaths to witnesses, and, when there are three arbitrators, two of them may do any act which might be done by all.” This clause has no application to the case- at bar, because under this contract there must be at least four arbitrators, and may possibly be ten, depending upon the construction placed upon the clause of the contract under consideration.
Whether the contract constitutes the managers of the named theaters arbitrators, or whether the case is to be determined on the
The complainant’s employes, upon one occasion, did not open the box office for an hour after the usual and advertised time, and this action seems to have been the immediate cause of the re-entry; but it is plain that it did not justify it. The contract expressly provides that the lessor “shall have-no control, authority, or voice in the conduct, management, or affairs of said theater business, but this shall be exclusively under the control of the” lessee. Under this clause ■the complainant had the undoubted right to open the box office at such hours of the day as he deemed best, and a failure to open it on a single morning, at the hour advertised, did not work a forfeiture of the lease, or give the lessor a right to re-enter.
Upon the occasion of the Bernhardt attraction, the complainant’s employes, without his knowledge or consent, speculated in the seats by selling tickets, or causing them to be sold, outside of the box office. This was done by employes whose appointment had been recommended by Mr. Bush, and for one of whom he was surety, and both of whom he retained in their positions, with full knowledge of the facts, after his re-entry. The partnership lost nothing by the speculation, because every ticket sold was accounted for at the price fixed by the manager for that attraction. It is needless to say that upon these facts that transaction afforded no ground for re-entry. The conclusion reached upon the original bill makes it unnecessary to consider the cross bill.
The decree of the circuit court is reversed, and the cause remanded, with direction to dismiss the cross bill for want of equity, and to enter a decree on the original bill to the effect that the complainant is entitled to the occupation and possession of the leased premises, under the terms and conditions of the lease, so long as he observes the covenants thereof, and enjoining the defendants from taking possession of the leased premises, or in any manner interfering with the complainant’s possession thereof, for any alleged breaches of the covenante of said lease by the complainant which happened prior to the filing of the cross bill in this case.