
    Frank Kennedy, Respondent, v. Benjamin A. Rolfe, Appellant.
    First Department,
    July 10, 1916.
    Contract — contract to write musical sketch construed — action on contract — erroneous submission of contract to jury for determination as to meaning —motion to dismiss complaint.
    Where in an action on a contract it appeared that there was nothing therein to raise a doubt as to the meaning of the parties and that the defendant had agreed to accept a musical sketch from the plaintiff if satisfactory to him and to pay $250 therefor, and in case he produced it at any time to pay royalties to the plaintiff at the rate of $25 each week of its production, not exceeding seventy weeks, the sketch thereafter to become the property of the defendant, who did not agree to produce it for any length of time, and the defendant claimed that the plaintiff had never delivered a sketch satisfactory under the terms of the contract the complaint should have been dismissed.
    Under such circumstances .the contract should have been construed by the court and not submitted to the jury for their determination.
    The point that the contract created no liability on the part of the defendant unless the sketch was produced was sufficiently raised by his motions to dismiss which were specifically based upon the ground that the plaintiff had failed to prove a cause of action.
    Appeal by the defendant, Benjamin A. Rolfe, from an order and determination of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of December, 1915, affirming a judgment of the City Court of the City of New York and also affirming an order denying defendant’s motion for a new trial.
    
      Nathan Burhan, for the appellant.
    
      Arthur F. Driscoll, for the respondent.
   Davis, J.:

The plaintiff recovered a judgment in the City Court for $1,500 which on appeal to the Appellate Term was affirmed and from that determination the defendant appeals to this court by permission.

The action is based on the following agreement between the plaintiff and defendant:

“Oct. 20th-12.
“ The following is an agreement made between B. A. Eolfe and Frank Kennedy to write a Musical Comedy or Sketch for Mr. Chas. A. Pusey (or whoever may take his place), and he is to be paid a royalty of Twenty-five ($25.00) dollars per each playing week for a period of seventy (70) weeks, allowing three (3) weeks free from royalty, which time is for the breaking in of said act for Vaudeville.
“After this time, Frank Kennedy surrenders all Eights and Claims to the Titles, Lines, Business and Situations and same becomes the property of B. A. Eolfe.
“Upon a deposit of Two hundred and fifty ($250.00) dollars advanced royalties, which is hereby acknowledged, Frank Kennedy authorizes B. A. Eolfe to deduct Twelve dollars and fifty cents ($12.50) from first royalty week and every playing week thereafter until the sum of Two hundred and fifty ($250.00) dollars shall have been deducted. Immediately following this, the royalty of Twenty-five ($25.00) dollars per each playing week shall be paid to Frank Kennedy.
“ It is further agreed that Frank Kennedy is to stage above act and give sufficient time in rehearsing all lines and business to the best of his ability, and any scenes or parts of above sketch which may prove unsatisfactory shall be rewritten by Frank Kennedy according to B. A. Eolfe’s wishes without extra charge.
“ Frank Kennedy agrees to deliver complete book upon date mutually agreed.”

The plaintiff alleges that he wrote and delivered the sketch according to the agreement and fully performed his part, but that the defendant failed to pay him $25 a week for royalties, excepting the sum of $250, and that he was damaged in the sum of $1,500.

The answer of defendant denies the allegations of the complaint with the exception of the making of the contract and the payment of the sum of $250. The plaintiff testified in substance that he had written and delivered the sketch as required by the contract; that the defendant expressed satisfaction with it, but suggested some changes; that the changes were made and the sketch returned to the defendant; that from time to time he asked the defendant when he would produce the sketch; that defendant said it would be produced between the 1st and 20th of January, 1913; that thereafter the production was put off from time to time and the sketch has never been produced. The plaintiff claims that under the contract the defendant was bound to produce the sketch within a reasonable time, and that he has willfully refused to carry out that part of the contract, by reason of which the royalties have become due and payable.

The defendant contended that the plaintiff had never delivered to him a sketch that was satisfactory under the terms of the contract; that changes requested by the defendant were never made, and in substance that_ the sketch was unproduceable, and that under the contract no royalties were to be paid unless the sketch was produced, and that defendant might or might not produce it, as he pleased.

Instead of construing this contract for itself, the court left it to the jury to determine what the contract meant, and the jury evidently found that the defendant had agreed to guarantee a seventy weeks’ production and a consequent payment to plaintiff of twenty-five dollars for each week, and that defendant had unreasonably and willfully broken his contract and was, therefore, hable to pay as if the play had been produced. Thus the case was submitted to the jury upon the erroneous theory that the jury were to determine the meaning of the contract, leaving the jury at liberty to find that there was an absolute guarantee of the payment of royalties for seventy weeks.

There is nothing in this contract to raise a doubt as to the meaning of the contract. It contains no provision requiring the defendant to produce it for a period of seventy weeks, or, indeed, for any length of time. It is simply an agreement on defendant’s part to accept a sketch from the defendant, if satisfactory to him, and to pay $250 therefor, and in case he produced it at any time to pay royalties to the plaintiff at the rate of $25 each week of its production, not exceeding seventy weeks, the sketch thereafter to become the absolute property of the defendant.

The point that the contract created no liability on the part of the defendant unless the sketch was produced, was sufficiently raised by the defendant’s motions to dismiss, which 'motions were specifically based upon the ground that the plaintiff had failed to prove a cause of action. These motions should have been granted and the denial of them was error requiring the reversal of the determination of the Appellate Term and the judgment and order of the City Court.

The determination of the Appellate Term and the judgment and order of the City Court are reversed and the complaint dismissed, with costs in all courts.

Clarke, P. J., McLaughlin, Scott and Dowling, JJ., concurred.

Determination, judgment and order reversed and complaint dismissed, with costs to appellant in all courts.  