
    Munczi Lajos, Resp’t, v. Eden Musee American Company, Limited, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed November 5, 1894.)
    
    
      1. Statute of frauds—Not performed within year.
    An oral agreement for services, then actually commenced, and to be performed within the year, is not within the statute of frauds.
    2. Contract—Breach.
    Where the plaintiff has agreed to furnish an orchestra, misconduct of one of his employes, for which the latter has to be discharged, is a constructive breach of the contract.
    3. Pleading—Contract—Performance.
    Under a plea of performance, evidence of prevention of performance, or of waiver, is inadmissible.
    Appeal from a judgment of the city court, general term, affirming a judgment entered upon the verdict of a jury in favor of plaintiff for $150.
    
      Seligman & Seligman ( George W. Seligman, of counsel), for app’lt; Dittenhoefer, Gerber James (A J. & J. M. Dittenhoefer, of counsel), for resp’t.
   Daly, Ch. J.

The action was to recover $150 upon a contract for services as musician and leader of orchestra. The complaint alleged a contract made in November, 1891, for the period of one year at a weekly salary of $500, that plaintiff entered upon his duties under said agreement and performed all his obligations toward the defendant, and claimed a balance of fifty dollars a week for the three weeks of the 9th, 16th and 23d of April, 1892. The answer denied these allegations and set- up that the contract was not in writing and was not by its terms to be performed within a year.-

The defendant’s exceptions present for review the questions whether the plaintiff’s contract was made with defendant or with one Biringcr; whether it was within the statute of frauds as alleged in the answer; whether it was performed so as to entitle plaintiff to recover; and also present certain rulings of the trial court in the admissions of evidence.

The contract was undoubtedly made directly with the defendant through its president, Mr. Ilellman. Although Mr. Biringcr negotiated with plaintiff by means of cable dispatches and letters between America and Europe, it was expressly stipulated between them that no contract was to be made until the arrival of the plaintiff in this country, and after that occurred, which was .on December 22d, 1891, the contract was made directly with Hellman. Two or three days after his arrival the plaintiff went to Heilman and asked for a written contract and Heilman replied, “We do not need a written contract. You will be paid promptly. My word should be sufficient and yours is sufficient for me.”

There had been on plaintiff’s arrival a conversation between plaintiff, Heilman and Biringer, looking to the making of a written contract between Heilman and Biringer and then a contract between Biringer and the plaintiff guaranteed by Heilman; but this was not carried out, and was merely intended to give Biringer a standing as manager and to secure him a commission or payment out of the plaintiff’s salary. Biringer, while not an employe of the defendant, “was continually in the Eden Musee; it was his business; he had superintendence over the musicians; made out programmes; received applications for engagements,” and all his negotiations by letter and cable with plaintiff disclosed that he was acting for Heilman, who had originally, as early as June, 1891, in Europe, negotiated with plaintiff for the proposed engagement, and had stipulated for all the material points of the contract, viz., an orchestra of sixteen men, to include plaintiff’s brother Bela, at $500 a week, with a commission or allowance to Biringer of fifty dollars weekly out of that sum. The first cable from Biringer to the plaintiff in the following October was, “Cable if you can begin December 8th in New York on terms arranged with Heilman; ” to which plaintiff replied, “ Heilman’s condition accepted, sixteen, including Bela; arrange for passage on my account; advance $300.” In the last communication, a letter to plaintiff from Biringer, the latter writes, “ at the request of Mr. Heilman,” and says, “ With respect to the contract for a year. Mr. Heilman is of the opinion to make the same first here with me in order to have no difficulties in the country. I hope that in the meantime the word of Mr. Heilman and that of mine will be sufficient.”

When plaintiff arrived no such written contract was made, and the only agreement was, as we. have seen, directly between plaintiff and Heilman. There was, therefore, no question on that point to submit to the jury, and it is not necessary to discuss the correctness of the instruction of the court to the jury upon the submission of that question; nor the ruling excluding Biringer’s statement as to the arrangements between him and the Eden Musee. Long after the engagement of plaintiff commenced, and on January 26th, 1892, Heilman, as president, made a written contract with Biringer, by which the latter agreed to furnish the plaintiff’s orchestra, but this arrangement could in no way affect plaintiff’s direct agreement with Heilman,

The conversation between Heilman and the plaintiff, at and after his arrival in this country and the commencement of his service, was the only contract between the parties, and while it was not in writing it was for sefvices then actually commenced and to be performed within the year and therefore was not within the statute. The communications verbal and written before the plaintiff’s arrival in New York did not constitute a contract because it was expressly stipulated that no contract was to be made until arrival. Upon the day of arrival tbe plaintiff commenced his services at defendant’s request and a few days after, while they continued, the verbal stipulation was entered into with the president. Although there was then no reference to the terms and conditions previouly settled by the president in his oral communication with plaintiff at Marienbad and in the subsequent cables with Biringer, it was manifest that the service then commenced and continued at the president’s request was the employment previously negotiated for and settled upon ; and that this was so, was manifest from the regular payment of the weekly sums stipulated for up to the last three weeks of the engagement. The case is like Blake v. Voight, 34 St. Rep. 295; 11 N. Y. Supp. 716, where the agreement was not to take effect until a subsequent date, that of the actual commencement of the services ; and in this case we have what was wanting in Blake v. Voight, an express verbal agreement at and after the time of the actual commencement of the services.

The remaining question is as to performance by plaintiff of his obligations so as to entitle him to recover in the action. His orchestra was to consist of sixteen persons including his brother Bela. This person became insubordinate and was discharged by Biringer with defendant’s concurrence for infractions of the rules. In fact, Biringer paid him a large sum to rid the establishment of his presence. The defendant then deducted from plaintiff’s weekly payment $50, the amount of Bela’s salary. It is for these deductions that the present action is brought.

The plaintiff is entitled to his whole weekly payment unless he has committed a breach of his contract. Misconduct of one of his employees for which the latter has to be discharged, is a constructive breach of the contract; for it is an implied obligation of a contractor in plaintiff’s position, that those under him and subject to his authority will conform to the rules of the establishment into which he has introduced them, and observe the proprieties essential to the decent conduct of a'place of public resort; and the defendant would have the right to exclude therefrom any offender. After the discharge of Bela, however, the defendant would not permit the- plaintiff to fill his place with any other performer, but continued plaintiff under the contract, deducting from his weekly payments $50, which was the stipulated compensation of Bela.

■ Upon this state of facts, it is not easy to perceive what plaintiff’s grievance is, nnless he has suffered some damage from the discharge of Bela, but if the latter voluntarily left his employ, upon receipt of a consideration from defendant, there could be no liability on his part to Bela for wages or otherwise ; and not having to pay Bela the $50 per week withheld by defendant he has suffered no loss.

At all events, there could be no recovery by plaintiff upon the cause of action alleged in the complaint, viz. : for performance of the contract. He had not performed the contract because of Bela’s misbehavior and consequent discharge or voluntary departure, and the averment of the complaint that he had performed all his obligations to' defendant was not sustained. That allegation must be intended as an averment of performance of the contract; otherwise it is a mere legal conclusion and ineffectual for any purpose as pleading. Under a plea of performance evidence of prevention •of performance or of waiver, is inadmissible. No recovery could be had except upon proof of performance and this could not be shown. The defendant objected in due time to the admission of the evidence as irrelevant and moved to dismiss the complaint for want of proof of performance. The denial of the motion was error, for which a new trial must be granted. O'Leary v. Board of Ed., 9 Daly, 161; Elting v. Dayton, 43 St. Rep. 363; Morowsky v. Rohrig, 4 Misc. 167; 53 St. Rep. 220; Oakley v. Morton, 11 N. Y. 25; Clift v. Roger, 25 Hun, 39. If plaintiff have a cause of action for damages it must be shown under an amendment of the complaint.

Judgment reversed and new trial granted with costs to appellant of the appeals and of the foimer trial to abide the event.

All concur.  