Orpheus Vaudeville Co. v. Clayton Investment Co.

140 P. 653, 44 Utah 453, 1914 Utah LEXIS 47

• Court: Utah Supreme Court
• Decided: April 13, 1914
• Docket: No. 2520
• Status: Published

Opinions

McCARTY, C. J.

(after stating the facts as above).

The first question presented by the appeal relates to the admission of evidence offered by the Vaudeville Company showing that the company was under contract and bond with a third party, which contract and bond provided for a forfeit to such party in case the company failed to open the theater in question on December 25, 1905. Counsel for appellant contend that this evidence was immaterial, as it in no way related to the contract, or to the alleged breach thereof, upon which this action is predicated, and was therefore prejudicial. It is evident that respondent pleaded the contract, bond, and forfeit it was under to a third party as matter of inducement only. Appellant, in its answer among other things, alleged that respondent, by entering into the possession of the building, thereby terminated “all prior negotiations, contracts, agreements, and obligations theretofore pending between” it and appellant. The evidence complained of tended to explain and elucidate the circumstances under which respondent accepted and went into possession of the building before it was as it contends, decorated and equipped as provided in the contract. We think the evidence was, under the circumstances, properly admitted.

The contract provided that respondent could not compel appellant to expend in erecting, completing, and equipping the building and entrance thereto more than $30,000. Appellant could, however, under the contract, expend more than $30,000 in erecting and equipping the building for use as a theater, but could not compel respondent- to pay any portion of any expenditure it might make in excess of $30,000. Nor could it increase the rent of the building to respondent because of any additional expenditure. The evidence shows that it cost appellant from $50,000 to* $'10,000 to erect and put the building in the condition it was when respondent went into possession. It is contended that, since appellant expended more than $30,000 in erecting and equipping the building for use as a theater, and since “respondent received a building worth nearly twice as much as it had expected, or that appellant was obliged to build,” respondent cannot, as matter of law, recover for any expenditure made by it in decorating or equipping the building for the uses for which it was intended. We think the provision of the contract limiting the amount that appellant was required to expend in erecting, completing, and equipping the building for use as a theater is plain and unambiguous. Under this provision of the contract, appellant, in order to limit the cost of the building and the equipment to $30,000, could have erected a much less elaborate structure t-han the one it did erect, and, as stated by counsel for respondent, it “could, to bring the cost of the theater down to the figures named, place in material and workmanship inferior to that which respondent might desire. It could . . . have decorated the theater in water colors rather than oil. It could (and did) furnish imitation rather than real leather chairs,” etc. Appellant was, however, under the contract, bound to erect, complete, and equip a building suitable for the use for which it was intended. This assignment is without merit, and is therefore overruled.

1 The contract, in general terms, provided that appellant should “completely build and equip” a theater building “in accordance with plans and specifications to be prepared by Architect O. M. Neuhausen, . . . which plans and specifications” were to be approved by respondent. Neither the contract nor the plans and specifications specified what should constitute the equipment of the theater building. It seems that the plans and specifications wei*e prepared by the architect as the work in erecting the building progressed, and that a complete set of plans and specifications were never prepared by the architect. Witnesses who were shown to be skilled in reading plans testified that the plans prepared by the architect for the construction of this building indicated that decorations were intended. Respondent called several witnesses, all of whom were shown to be qualified to testify as to what constituted equipment for a theater building. These witnesses testified that the following items are an essential, in fact a necessary, part of the equipment of a building used as a theater: Asbestos curtain; ticket office; brass rail for ticket office; gridiron and rigging loft; chairs; and decorations for ceiling and walls. It is contended on behalf of appellant that the court erred in admitting this evidence. We do not think so. As the particular items constituting equipment for the theater building are not set forth in detail in the contract, nor indicated in the plans and specifications, it was proper for respondent to introduce evidence tending to show what items are- usually and necessarily included in the equipment of a theater building.

2 It is also contended on behalf of appellant that, as the contract provided that the building should be completed and equipped “in accordance with the plans and specifications,” and that since the plans and specifications do not provide for any of the items above mentioned, appellant was not legally bound to supply them. There would be much force to this contention if a complete set of plans and specifications had been prepared and submitted to and approved by respondent, and as approved had been followed by appellant in constructing and equipping the building. But that is not this case. As hereinbefore stated, the plans and specifications were prepared by the architect as the work on tbe building progressed. It appears that the decorating and painting’ of the walls and ceiling, and putting in the fixtures and appliances mentioned, were the last things done and necessary to be done in preparing the building for the uses for which it was erected and for which it was intended. The failure of the architect to prepare complete plans and specifications of the building and the equipment cannot relieve appellant from its obligations as fixed by the contract.

The judgment is affirmed. Respondent to recover costs.