
    James McLaughlin, Respondent, v. Oscar Hammerstein, Appellant.
    
      Contract for a theatrical performance—under what circumstances a theatrical manager may discharge a vaudeville performer—charge of the court.
    
    Upon the trial of an action it appeared that the defendant, a theatrical manager, engaged the plaintiff, a vaudeville performer, to produce his specialty, which was known as the “ Comedy Act” of the “ Marco Twins,” performed by the plaintiff and a dwarf, at the defendant’s theatre for a period of eight weeks; that, by the consent of the parties, the production of the specialty did not begin until the second week of the contract period, and that at the expiration of such second week the defendant discharged the plaintiff.
    It appeared that the contract was negotiated through a theatrical agency while the plaintiff was in Europe; that such contract was prepared in duplicate, one of which was signed by the defendant; that the duplicates were then forwarded to the plaintiff, who erased from each a clause to the effect that the defendant reserved the right to cancel the contract at will “during or after a single performance of an incompetent person” or in the event of a performer “becoming careless or indifferent” about his work; that the plaintiff then retained the duplicate signed by the defendant and signed and mailed the other to the theatrical agency, together with a letter asking to be immediately notified whether the defendant consented to the change and stating that otherwise he would not enter into the contract; that the matter was not further brought to the attention of the defendant by the theatrical agency, and that the plaintiff, assuming that the change was satisfactory, entered upon the performance of the contract.
    It further appeared that the plaintiff had produced the specialty for many years; that some six or seven years before the contract was negotiated, the defendant had witnessed a performance of the specialty in another theatre by the plaintiff and a dwarf named Ulps.
    The defendant gave evidence tending to show that the contract was made with the understanding that the specialty should be performed by the plaintiff and Ulps, and that it should be the same act in all material respects as that theretofore presented by them; that Ulps did not take part in the performance of the act as presented by the plaintiff in the defendant’s theatre and that the act as then given was materially different from that previously given by the plaintiff.
    The court submitted to the jury the question .whether the defendant had assented to the elimination from the contract of the clause entitling him to cancel the contract if the performer became incompetent or careless or indifferent about his work, and instructed the jury that if he did so consent, he had no right to discharge the performers. The court also submitted to the jury the question whether it was the understanding of the parties that the plaintiff was to be assisted by Ulps and instructed them that if the plaintiff agreed to produce a particular combination (evidently referring to the personnel of the actors) and did not, that this would constitute a violation of the contract and would prevent a recovery. He then at the request of counsel for the plaintiff, instructed the j ury that “if the jury find that William Hammerstein (the defendant’s manager) did not make the appearance of Ulps with plaintiff a condition of the contract, the verdict must be for plaintiff,” and declined to charge at the request of counsel for defendant, “that if the plaintiff gave an incompetent performance the defendant was at liberty to terminate the agreement without any notice whatever, and was not compelled to permit him to perform for the entire period mentioned in the contract.”
    
      Held, that the action of the court in charging the plaintiff’s request and in declining to charge the defendant’s request was improper as the jury would naturally infer therefrom that even if the performance was materially different from that previously given by the plaintiff, and from what was known and understood as his “ Comedy Act,” still the plaintiff was entitled to recover if the clause reserving the right to discharge was not a binding part of the contract and if it was not agreed that Ulps was to take part in the performance;
    That this was not the correct rule of law, as, under those circumstances, the defendant would have a right to terminate the contract.
    Patterson and Hatch, JJ., dissented.
    Appeal by the defendant, Oscar Hammerstein, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of December, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of January, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      Nathaniel Cohen, for the appellant.
    
      Edward Hymes, for the respondent.
   Laughlin, J.:

The plaintiff is a vaudeville performer and the defendant is a theatrical manager. The defendant engaged the plaintiff to produce his specialty known as “ Comedy Act ” of the “ Marco Twins ” at the Victoria Theatre for a' period of eight weeks at a salary of $225 per week. The performance of the contract for the first week Was waived by consent. The plaintiff and another appeared in the act at the Victoria during the second week at the expiration of which they were discharged on the ground that the act as given by them was an incompetent performance. The action was for a wrongful discharge and the plaintiff has recovered the difference between the contract price for the remaining six weeks and his earnings in performing at other theatres in the meantime.

The contract was negotiated through a theatrical agency while the plaintiff was in Europe. It was prepared in duplicate, one of which was signed by the defendant. The two were then forwarded to the plaintiff who erased from each a clause to the effect that the defendant reserved the right to cancel the contract at will “ during or after a single performance of an incompetent person ” or in the event of a performer “becoming careless or indifferent” about his work. The plaintiff then retained the duplicate signed by the defendant and signed and mailed the other to the theatrical agency inclosing with it a letter asking to be immediately notified whether the defendant consented to the change and saying in substance that otherwise he would not enter into the contract. The matter was not further brought to the attention of the defendant by the theatrical agent. The plaintiff receiving no cablegram assumed that the change was satisfactory to the defendant and came to New Vork and entered upon the performance of the contract as already stated.

The defendant set up as a defense, among other things, that the performance was incompetent. The evidence tending to support this allegation was given by the defendant and his son who was associated in business with him as manager. The contract gave no description of the performance to be presented by the plaintiff other than the designation of the act as already stated. The plaintiff had for many years been presenting his specialty known by these names, and some six or seven years before this contract was negotiated he had presented the act at Koster & Rial’s Theatre in the ownership or management of which the defendant was interested. The defendant and his son had seen the performance as there given, which was by the plaintiff and a very small dwarf named Ulps. The defendant contends that at the time the contract was made he was informed by the theatrical agent, and that the plaintiff after-wards admitted, that Ulps was still performing with him; that it was the understanding and intention of the parties that the act should be performed by the plaintiff and Ulps, and, furthermore, that it should be the same act in all material respects as that theretofore presented by them, which was known to the defendant. Ulps did not take part in the performance of the act as presented by the plaintiff at the Victoria Theatre. Whether or not the defendant was entitled to have Ulps appear with the plaintiff was submitted as a question of fact to the jury and they found adversely to him.

The defendant further contended upon the trial that aside from the personnel of the performers the act was not similar in all respects to that previously given and upon which he relied in making the contract. The son testified that after the second performance ■ he complained to the plaintiff that it was not the same as that previously presented, and that defendant had been deceived in that regard; that the plaintiff stated that he could not do the same act with the dwarf he then had as with Ulps. Defendant permitted the plaintiff to play through that week but refused to allow him to continue during the remaining six weeks either with the midget who performed with him the first two nights at the Victoria and another—as he sometimes performed the act with two — or to substitute another as the plaintiff requested.

The testimony of the defendant and his son is to the effect that the performance as given by the plaintiff at the Victoria Theatre was materially different from that previously given by the plaintiff and Ulps, with the knowledge of which the defendant contracted. Their testimony gives in detail the difference between the performance given by the plaintiff at the Victoria Theatre and that previously given at Koster & Bial’s, and is to the effect that the principal difference was that in the latter theatre a small attractive dwarf appeared on the stage with the plaintiff, and they together performed funny acrobatic feats, including a burlesque wrestling or boxing match, closing with the plaintiff tossing the midget upon a tree; that on account of the fact that the dwarf, who took part in the performance at the Victoria Theatre, was “heavy” and crippled or “ill-shaped,” the act as given by them was a weak imitation of the former act, and, instead of being funny, was disgusting or vulgar, and was so characterized by the press. The plaintiff did not contend that the performance at the Victoria Theatre was the same as that previously presented with Hips, but he testified in substance that it was similar, differing merely as necessitated by the change of performers. He signed the contract “ Marco Twins,” and testified that this was his trade mark. He further testified that during eight years he had had six little men performing the act, which he characterized as grotesque, with him; that the principal feature of the act is the dissimilarity between himself and the other performer, he being tall, or, as he puts it, “ the ridiculous juxtaposition of the opposites,” and he denied that his companion performer was a cripple.

The court left it to the jury to determine whether the contract embraced the clause which the plaintiff struck therefrom, or whether the minds of the parties met thereon with that clause eliminated; and charged that if the defendant did not assent to this modification made by the plaintiff, then he had the right to cancel the contract if any performer, appearing in the act, proved to be incompetent or became careless or indifferent about his work during the engagement. The jury were further instructed that if the clause, reserving the right to discharge, was not in the contract, as finally agreed thereon, then the defendant would have no right to discharge performers. The learned court further instructed the jury that if the minds of the parties did not meet upon the question of retaining or eliminating this clause, then there was no contract and the plaintiff could not recover; and also that if the clause became a part of the contract it was incumbent on the plaintiff to show that lie performed all Ms obligations under the contract, even though there was “no incompetency.” The learned court then drew the attention of the jury to the defendant’s claim that the personnel of the actors was not that contemplated by the contract, and stated that they were to determine what was meant by the comedy act called “Marco Twins.” The court then alluded to testimony given in behalf of the defendant tending to show that Ms understanding with the theatrical agent prior to making the formal contract was that the plaintiff was to be assisted in the act by Ulps, and submitted that question to the jury as one of fact. The jury were then instructed that if the plaintiff agreed to produce a particular combination — evidently referring to the personnel of the actors — and did not, that this would be a violation of the contract, and he could not recover. At the close of the charge, the court, at the request of counsel for the plaintiff, instructed the jury that “ if the jury find that William Hammerstein did not make the appearance of Ulps with plaintiff a condition of the contract, the verdict must be for plaintiff,” and declined to charge at the request of counsel for defendant “ That if the plaintiff gave an incompetent performance the defendant was at liberty to terminate the agreement without any notice whatever, and was not compelled to permit him to perform for the entire period mentioned in the contract.” Counsel for the defendant thereupon excepted to the refusal to charge as requested and to the charge as made upon that subject. We are of opinion that the jury would naturally infer from the charge that even if the performance was, as testified by the defendant and his son, materially different from that previously given by the plaintiff, and from what was known and understood as his “ Comedy Act,” still the plaintiff was entitled to recover if the clause, reserving the right to discharge, was not a binding part of the contract and if it was not agreed that Ulps was to take part in the performance. As already observed, the court did in general terms instruct the jury that plaintiff was in any event bound to show a performance of his contract, but by the further general instructions that there was no right to discharge unless it was expressly reserved and the pointed instructions given at the close of the charge that the plaintiff was entitled to recover unless it was agreed that Ulps was to be one of the performers, and by the refusal to charge the request made by counsel for the defendant, the jury would very likely receive the impression that, regardless of the personnel of the performers, the contract did not obligate the plaintiff to perform the “ Comedy Act ” substantially as it had been previously known and rendered. Even though the plaintiff was entitled to the benefit of the contract as if it did not contain the clause reserving the right of cancellation, and even though there was no agreement that Ulps was to be one of the performers, still the defendant would have the right to terminate the contract if the plaintiff presented a performance materially different from that previously given by which his “ Comedy Act ” was known and with respect to which the defendant contracted, and the evidence of the defendant and his son would have justified a finding that such was the fact.

It follows, therefore, that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Van Brunt, P. J., and O’Brien, J., concurred; Patterson and Hatch, JJ., dissented.

Judgment and order reversed, new trial ordered, costs to appellant to abide event. 
      
       William Hammerstein was the defendant’s manager —[Rep.
     