Gartlan v. Searle

1 N.Y. City Ct. Rep. 349

• Court: New York Marine Court
• Decided: February 15, 1881
• Status: Published

Opinion

MoAdam, J.

The plaintiff was the advance agent of the defendant’s theatrical combination, in filling dates in the various cities of the United States. The employment was for twelve weeks, at $30 per week. The contract uses the expressive term “a season of twelve weeks.” The words ‘1 or more if mutually agreeable,” mean that the contract terminates in twelve weeks unless continued by mutual agreement. That this was the true intention of the parties is evident from the peculiar nature of the employment. It is unreasonable to suppose that either contemplated that the service might be abruptly terminated at„the end of any week. Such a construction, if enforced, might have entailed disastrous results to the defendant on the one hand, and, on the other, have left the plaintiff without employment many miles from home. It is too unreasonable to be accepted as part of the contract, which, as I take it, was, as before suggested, unconditional for “a season of twelve weeks.” The plaintiff performed his contract until discharged by the defendant in December, 1878, on account of the illness of Rose Eytinge, the attractive feature and star of the combination, which prevented a continuance of its successful tour. The plaintiff was in no way responsible for this misfortune.

Upon the conflicting evidence, I find that there was due to the plaintiff, at the time of his discharge, $70, of which $39 was afterwards paid, leaving $31 due, to which must be added $30 per week for the succeeding four weeks (during which the plaintiff was unable to procure other employment). This, with the $31, makes a total of $151, for which sum judgment is awarded, with costs.