Fagan v. Aborn

50 Misc. 666, 99 N.Y.S. 479

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 15, 1906
• Status: Published

Opinion

Olincii, J.

Plaintiff and his wife, whose interest in their claim against defendant was assigned to him before the commencement of this action, were vaudeville performers, playing under the stage name of Fagan & Byron. The suit was brought to recover damages for a breach of contract of employment whereby they agreed to furnish their performance for the four weeks commencing December 4, December 11, December 18, December 25, 1905, at Scranton, Wilkesbarre, Erie and Harrisburg, Penn., respectively, at the agreed price of $250 per week. One clause of the contract read as follows: “ On three weeks’ written notice by either party this contract may be canceled without any liability thereunder.” Plaintiff admits the receipt of the following letter from defendant, on or about October 81, 1905:

“ Deab Me. Fagan : “ On account of. Scranton, Harrisburg and Wilkesbarre being a failure as far as vaudeville is concerned am obliged to cancel your dates that you hold contracts for. Sorry to be obliged to do this but they wouldn’t stand for vaudeville in these towns.

“ Tours truly,

“ Milton Abobn.”

Plaintiff and his wife made no attempt to perform in Scranton, Harrisburg or Wilkesbarre and instructed their agent to secure other bookings; whether for the three or the fopr weeks does not appear from the record. There is some evidence that they proceeded to send to Erie, Penn., before December 18, 1905, which was the date of their hooking at that place, a portion of the advance material which the terms of the contract provided should be sent to each place. This material was returned to them and they made no effort to go to Erie. Subsequently this suit was broughl for $250, the contract price for one week’s performance. It further appears that the defendant engaged Fagan and Byron as two of a company comprising in all seventeen or eighteen persons, and that none of the entire troupe which was engaged to appear in these four cities with them did so appear, and that it was the custom of the defendant in the profession to make contracts of this nature for an entire circuit. In view of these facts, we are of opinion that the learned justice should have held that the defendant’s written notification of October 31, 1905, was, in effect, a cancellation of the contract, to take effect three weeks after the receipt of the letter. The language of the letter, “ to cancel your dates that you hold contracts for,” was evidently intended to include all dates after the expiration of three weeks; and the reason for the cancellation was that, in three out of the four places, vaudeville performances could not be successfully given. It does not follow that, because the letter does not say that vaudeville would be unsuccessful in Erie, the contract was to remain in force as to that town. That this is also the plaintiff’s interpretation of the letter of October thirty-first is apparent from the fact that he abandoned the entire enterprise.

Eor these reasons alone the judgment should be "reversed, with costs, and the complaint dismissed.

Gildebsleeve and Davis, JJ., concur.

Judgment reversed, with costs, and complaint dismissed.