
    Jefferson D. Bernstein, Resp’t, v. Henry L. Meech et al., App’lts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed December 22, 1891.)
    
    1. Contract—Theatrical—Breach or.
    Defendants contracted with plaintiff to furnish an opera house for four-performances, and the latter agreed to furnish the services of his comedy company during that time and to take fifty per cent of the gross receipts. Subsequently plaintiff inclosed a contract for defendants to sign giving him sixty per cent, saying he could not think of playing for less. They returned the contract unsigned, saying “we have a contract signed by you and do not need any other.” Still later plaintiff wrote defendants to advertise freely in regard to the performances, to which the latter replied that they had supposed from plaintiff’s last letter that his company was not coming, and they arranged for another company to play at their house on, the days named. Held, that the defendants’ first letter tended to show an election to keep the contract in force and plaintiff was justified in so-understanding it, and consequently the contract was kept alive until the time arrived for performance.
    2. Same—Damages.
    " The measure of damages in suen an action is an amount equal to the expenses legitimately and essentially incurred for the purpose of the performance and not the profits which might have been made thereby.
    Appeal from judgment entered upon order of the general term of the supreme court in the fifth judicial department, affirming-judgment entered on a verdict.
    
      Leroy Andrus and John T. Joyce, for app’lts; Herbert P. Bissell, for resp’t
    
      
       Affirming 26 St. Rep., 985.
    
   Bradley, J.

By contract of date August 4, 1887, between,the parties, the defendants agreed to furnish to the plaintiff the opera house known as the Academy of Music in the city of Buffalo, December 22d, 23rd and 24th for four performances by Jar-beau Comedy Company, and for that purpose the plaintiff agreed to furnish the services of that company during that time, and intake as the consideration fifty per cent of the gross receipts of all sums realized from the performances. When this contract was-executed each of the parties had the right to assume that the-other would observe its stipulations. The performances did not take place; and the reason why they did not the plaiiftiff charges-was attributable to the breach of the contract by the defendants. The purpose of this action was to recover damages as the consequence. The controversy involved the construction of correspondence had between the parties subsequently to the making of the contract. The first of it was a letter from the plaintiff to the-defendants of August 12, Í887, in which he enclosed a written paper for them to sign as a contract to the effect that he should have sixty per cent of the gross receipts of the performances, and he stated in the letter that he could not think of playing for less. When the defendants received this letter it may be they were-permitted to understand that the plaintiff did not intend to have-his company play for the stipulated portion of the. receipts first mentioned, and to treat the contract as rescinded or as still in force for such purpose as to them might be deemed available. The view which was taken by the defendants of the situation was-represented by their letter of date August 13th to the plaintiff, in which they returned the contract unsigned, and said they did so “ for the reason that we have a contract signed by you and do-not need any other for the appearance of Verona Jarbeau and company at our Academy of Music December 22d, 23rd and 24th, 1887.”

By this letter it seems that the defendants did not intend to and did not relinquish any rights which they had under the contract of the 4th of August That agreement then remained in force, and if the plaintiff failed to perform it he would be liable to the defendants for the legitimate consequences of his default. Mo further communication was had between the parties until Movember 17th, when the plaintiff’s agent in his letter from Chicago to the defendants enclosed advertising clippings to them for publication, and added: “Please keep Miss Jarbeau before the public-as much as possible. I want to see her turn them away in your town, and she will if conditions are equal. If you had rather, I will address the newspapers myself.” In that case he requested that the names of newspaper men to address be furnished him. The defendant, who was absent when the letter reached Buffalo, addressed to the agent at Chicago November 28th a letter expressing his surprise, with the remark that he had supposed from the plaintiff’s letter of the 12th of August that his company was not coming to Buffalo, and added, “ We cannot now arrange to play Verona Jarbeau ” the dates before mentioned. This letter was forwarded to Buffalo and did not reach the agent until December 17th or 18th, when he came there to complete the advertising- and make the arrangements preparatory to the performance. And in due time the plaintiff with his company reached Buffalo to perform his contract with the defendants. In the meantime they had arranged with James Brown Potter Company to play at the Academy of Music on those days. And the plaintiff was refused permission for his company to do so. Upon this state of facts the question was presented whether or not the defendants were relieved from the obligation of their contract with the plaintiff. This, in view of the circumstances, was treated by the trial court as a question of fact for the jury, and exception was taken to refusal to direct a verdict for the defendants.

It is urged that the plaintiff’s letter to the defendants must be treated as a refusal to perform and as a breach of the contract on his part which relieved them from its obligation and afforded to the defendants a right of action. It is true that when one of the parties to an executory contract has renounced it the other party to it may act upon the assumption of such a breach before the time for performance arrives. Windmuller v. Pope, 107 N. Y., 674; 12 St. Rep., 292.

But in the present case that proposition is not necessarily applicable, because the conclusion was not required as matter of law that there was a renunciation of the contract by the plaintiff, nor was it so treated by the defendants. Blackburn on Sale, § 744. And whether in view of the understanding of the parties deriva;able from their correspondence the defendants could have acted upon the assumption of a breach by the plaintiff and were justified in so doing was a question presented for consideration at the trial, .and which the defendants requested the court to submit to the jury. The refusal of the court to charge further than it had already charged on the subject was not error, because by the charge before then made to the jury the question in that respect had with ample instructions been fully submitted to them.

But whatever view may have been taken of the right of the defendants to treat the contract for the purposes of its performance as at an end and to act upon that assumption when they received the plaintiff’s letter, they disposed of that question by their letter to him. By this it appeared that the defendants elected to keep the contract in force for the purposes for which it was made. This operated alike upon the rights of both parties, and the plaintiff was justified in so understanding it. In that view the contract was kept alive until the time arrived for performance, and the obligations of the defendants no less than those of the plaintiff for that purpose remained effectual. Johnstone v. Milling, L. R., 16 Q. B. D., 460; Frost v. Knight, L. R., 7 Exch., 111; Zuck v. McClure, 98 Pa. St., 541.

There was no error in the refusal of the court to direct a verdict for the defendants.

The remaining questions have relation to the damages which were the subject of the plaintiff’s recovery. The general rule on the subject would permit him, in case of breach by the defendants, to recover the value of his contract. And that was dependent upon the receipts to be realized from the contemplated performances by the plaintiff’s company. The results which would in that respect have been produced if the company had been permitted to perform the contract were speculative and by no probative means ascertainable.

It is contended on the part of the defendants that recovery could be founded on no other basis, and, therefore, the plaintiff could recover nominal damages only. The value of the contract to the plaintiff was in the profits and in. the amount of them which may have been realized over his expenses attending its performance. Those profits not being susceptible of proof were not the subject of recovery. But by the breach of the contract by the defendants the plaintiff was denied the opportunity which the observance of it could have given him to realize fifty per centum of such receipts as would have been produced by it. His loss also consisted of the expenses by him incurred to prepare and provide for such performance. While the plaintiff was unable to prove the value in profits of his contract, he was properly permitted to recover the amount of such loss as it appeared he had suffered by the defendants’ breach. Griffin v. Colver, 16 N. Y., 489 The evidence warranted the conclusion that the plaintiff through his agent made nrenarat.ions for the performance, of the contract, and that the plaintiff with his troupe appeared at Buffalo prepared and in readiness to do so. The amount of his expenses incurred for the purpose of such performance was proved, and. they were the basis of the recovery. It is unnecessary to refer specifically to the items of those expenses. The jury were upon, the evidence permitted to find that, to the amount of the recovery, they were legitimately incurred for the "purposes of the performance of the contract, and that with a view to such purpose the-plaintiff suffered a loss to that extent. Those expenses may be-deemed to have been fairly within contemplation when the contract was made. It cannot be assumed that any part of this loss, would have been sustained by the plaintiff if he had been permitted to perform his contract. And assuming, as we must here, that, the exclusion of the plaintiff’s company from the use of the opera-house at the time in question was caused by the defendants’ breach of the contract, the plaintiff’s loss equal to the amount of his expenses legitimately and essentially incurred for the purpose of its. performance was the consequence of their default and properly recoverable by him. Driggs v. Dwight, 17 Wend., 71; Giles v. O’Toole, 4 Barb., 261; Taylor v. Bradley, 39 N. Y., 129, 142.

These views lead to the conclusion that none of the exceptions, were well taken, and that the judgment should be affirmed.

All concur, except Potter, J., not voting.  