198 A.D. 782 | N.Y. App. Div. | 1921
The appellant, an English actor of renown, brought this action to recover damages for a breach of a contract by which he was employed by the defendant on the 2d day of November, 1918, to play the part of Coade in the play known as “ Dear Brutus ” during the theatrical season of 1918-1919. The contract was in writing and under seal. At the opening of the trial the defendant conceded that the plaintiff was neither permitted to rehearse for, nor to play, the part when he appeared for the purpose in New York pursuant to the contract. In the year 1918 and prior thereto the plaintiff was playing this part in London and while so engaged defendant’s London manager opened negotiations with him to play the part for the defendant in New York. The plaintiff manifested willingness to accept the engagement if the defendant would pay him a salary of $500 per week. The negotiations were resumed later on and resulted in plaintiff’s agreeing to accept $400 per week, and the contract was signed in duplicate and exchanged in London at the office of the defendant’s manager. Printed blank forms of contract presented in behalf of the defendant were used. The printed form recited that the artist was engaged to perform such professional services as might be required of him for the run of the play; and in a blank space following this was inserted, “ Dear Brutus in the part of Coade,” following which was printed “ during the theatrical season of,” and in the blank following this was inserted “ 1918-19 this engagement to be for not less than ten weeks; ” and after this there was printed in the duplicate contract delivered to the plaintiff, which only was offered in evidence, as the continuation of the sentence, the following: “ in such characters to which the artist may be assigned; to commence on or about the-day of-, 19—, subject to the two weeks’ clause hereinafter mentioned.” The next printed sentence of the contract provided that the manager should determine when the season should commence and terminate, and that if the play should' not be produced, the contract should terminate. The 2d paragraph of the contract provided in the printed form that the manager agreed to pay the artist “ the sum of ” and this was followed by a blank space after which was printed the following: “ for each week
We are of the opinion that the court erroneously construed the contract and that it should be construed as guaranteeing the plaintiff an engagement for ten weeks. It is to be borne in mind that the part which the defendant engaged the plaintiff to play was the plaintiff’s original part in the play as it had theretofore been presented in London, and that the defendant was calling upon the plaintiff to come from London to New York at the opening of the theatrical season, which would deprive plaintiff of any chance of obtaining another engagement at home or elsewhere. In these circumstances, and particularly in view of the plaintiff’s prominence as an actor, the reasonable construction of the contract is that the defendant guaranteed plaintiff an engagement for at least ten weeks, and, therefore, the printed provisions of the contract should give way to the express written provisions to the effect that the engagement was for not less than ten weeks. Inasmuch, however, as the guaranteed period was for only ten weeks, the defendant had the right under the 7th paragraph to terminate the contract at the expiration of that period by giving the plaintiff two weeks’ notice of its intention so to do, and although it did not give such notice, the law in this jurisdiction is that where a party refuses to proceed with a contract at the outset, the damages are to be determined and awarded as if a notice, which he had a right to give, had been given. (Watson v. Russell, 149 N. Y. 388.) Defendant’s manager in London did not assume to cancel the contract, and, therefore, the plaintiff was justified, and indeed I think he was required, for the protection of his own interests, to come to New York and tender his services. Salary under the contract for ten weeks and transportation expenses constituted the extent of the liability of the defendant. Hotel and other expenses the plaintiff would have been obliged to bear had defendant not breached the contract and the damages recoverable are limited to the loss sustained by the plaintiff in being deprived of the
Clarke, P. J., Smith, Merrell and Greenbaum, JJ., concur.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event, unless defendant consents to entry of judgment in accordance with views expressed in opinion. Settle order on notice.