231 Pa. 56 | Pa. | 1911
Opinion by
We do not agree with the learned court below that the affidavit sets up a prima facie defense in averring that by virtue of certain acts of assembly of the state of New York and their construction by the courts of that state the contract of the parties “was unlawful and void in that it was an agreement to perform in the state of New York any opera, or any parts of opera, or other dramatic performance, upon the first day of the week, commonly called Sunday, in violation of said statutes.” A copy of the contract on which the suit was brought is attached to and made part of the statement. It was executed in New York and provides, inter alia, as follows: “The artist (Giovanni Zenatello) binds himself to sing in his capacity
The statement avers that the plaintiff was ready and willing at all times and offered to perform his engagements under the contract. This is denied by the affidavit of defense, and it is averred that after the fourteen performances, the “defendant desired and requested plaintiff to sing the tenor part in the opera 'The Prophet/ which was a part the plaintiff was well fitted to sing, but said plaintiff, without reason or excuse, declined and refused to sing the part.” The contract bound the plaintiff to sing “the operas of his repertory and those which will be indicated to him.” Another part of the contract specifies the operas of the plaintiff’s repertory and provides that he shall sing those operas, “and some other operas which may be indicated, so long as they are fit for him, and they are arranged on mutual agreement.” The plaintiff contends that he was justified in refusing to sing the tenor part in “The Prophet” as it was not one of those specified as part of his repertory and was not agreed upon by mutual consent between the parties. This question was clearly for the jury under proper instructions by the court. We must assume the truth of the averment in the affidavit that the defendant requested the plaintiff to sing in “The Prophet,” that he was fitted to sing in it, and that he, “without reason or excuse, declined and refused to sing the part.” If this be true, the plaintiff violated his contract. He was, by the terms of the agreement, to sing such operas outside of those specified in his repertory as the defendant “indicated to him,” and were “fit for him” when they were “arranged on mutual agreement.” It was, therefore, the duty of the plaintiff to sing the tenor part in “The Prophet” when requested by defendant unless he had a sufficient legal reason for refusing to do so, and whether he did so “without reason or excuse,” as averred in the affidavit, is necessarily for the jury. Being fitted to sing in the opera and being requested to do so by the defendant, the plaintiff could not arbitrarily decline to
We need not determine the questions of law suggested in argument other than those necessary to the disposition of this rule, as they can be better considered and decided in the light of all the facts developed on the trial of the cause before a jury.
The order discharging the rule for judgment for want of a sufficient affidavit of defense is affirmed.