
    Annie Yeamans and Jennie Yeamans, Resp’ts, v. Frank A. Tannehill, App’lt.
    
      (City Court of New York, General Term,
    
    
      Filed October 22, 1891.)
    
    Contract—Actor and playwright.
    Defendant entered into a written contract with plaintiffs to write a play for them in consideration of $5,000 to he paid $250 down, certain payments as the work progressed and a certain sum per week until fully paid, and plaintiffs agreed to stage and produce it for a season of ten weeks, commencing Sept. 15. Defendant afterwards delivered a memorandum guaranteeing to have it completed by Sept. 15. It was not finished until Sept. 30, when plaintiffs refused to accept it, as it came too late. Held, that the original agreement required the completion of the play in time for plaintiffs to produce it by Sept. 15; that the memorandum, at most, extended defendant’s time to that date; that there was a breach of the contract and that plaintiffs were entitled to recover the amounts paid thereon.
    Appeal from judgment entered on the verdict of a jury in favor of plaintiffs.
    
      August G. Beyer, for resp’ts; Wm. B. Fllison, for app’lt.
   Van Wyck, J.

The plaintiffs, Mrs. Annie Yeamans and her daughter Jennie, actresses, entered into a written contract on May 16, 1889, with the defendant, a dramatic author, by the terms of which he was to write a three act comedy drama as required and directed by the plaintiffs, who were to pay him $5,000 therefor as follows: $250 down, $100 when the first act was completed, $100 on completion of the second act, $50 when the play was finally completed, and thereafter $50 per week until the balance was fully paid, and they further agreed to stage and produce the play with a first class company for a season of ten weeks commencing September 15, 1889, the selection of the company, however, to be subject to the approval and under the direction of the defendant. The defendant signed and delivered to plaintiffs, on June 15 following, a written memorandum by which he acknowledged receipt of $250 and guaranteed to have the play completed by September 15.

It was conceded that this $250 had already been paid him by plaintiffs on the delivery of the original contract of May 16. The plaintiffs’ evidence showed that the defendant completed the first act of the play on June 13, when he was paid $100, as agreed; that the greater part of the second act was completed and read to them on August 4, and the other $100 was then paid; that the third and last act was not completed until September 30, when he wrote a letter offering to read the play in full to them, whicli offer they refused, claiming that it came too 'late as the play should have been completely finished and read to them certainly by September 15. The plaintiffs’ action is for a return of the $450, so paid as aforesaid. The defendant’s evidence went to show a waiver and modification as to the time for the completion of the play, an abandonment of the original enterprise by plaintiffs, and a failure to stage and produce the play for a ten weeks season commencing September 15; but all of these contentions of defendant were disregarded by the jury, who rendered a verdict of $450 in favor of plaintiffs, and thus all disputed questions of fact were properly disposed of by the jury. But both counsel displayed much learning and ingenuity at the trial, and still more on the hearing of this appeal, as to whether, or not the written memorandum of June 15 was a new contract or a modification of the written agreement of May 16, and whether or not it was supported by a valuable consideration, and whether such memorandum not being under seal could be deemed a valid modification of the original agreement which was under seal. It must be remembered that all that this memorandum contained was a guaranty by defendant that he would finish the writing of the play by September 15. All of this close and fine reasoning of counsel was directed to the solution of the question whether or not the defendant was legally bound to complete the play by September 15, when as a matter of fact it was conceded that he had not completed the play until September 30, nor had plaintiffs refused to accept it until that day. What matters it whether the memorandum of June 15 was or was not under seal, or whether it was a new contract or a modification of the old, or whether it was founded on consideration or not, or whether it existed at all or not, for the defendant had agreed by the original contract of May 16 to write the play -which by the very terms of that contract the plaintiffs had agreed to stage and produce for a ten weeks season, commencing September 15, and how were they to stage and produce the play on that day unless the defendant was bound to have it completed by that time, and moreover it would have had to have been rehearsed before it could have been properly produced and it is in evidence that these rehearsals would have occupied two weeks’ time. How could the plaintiffs produce a play on September 15, which was not completely written until September 30 ? This is very aptly answered by Mrs. Yeamans, in her reply to an inquiry as to why steps had not been taken for staging the play, that “ You cannot stage a play if you haven’t it.”

The original contract required the plaintiffs to produce the play by September 15, and although it contains no express provision limiting the time within which the defendant must complete the writing of the play, still it must be construed, in law, which is common sense, as meaning that he agreed to so finish and complete it in ample time to have it properly rehearsed before its production and presentation to the public.

So much for defendant’s contention that he was not required by the terms of the original contract to complete the play by September 15, the very day upon which this same contract required the plaintiffs to so produce and present it. And as for this so much talked of memorandum, if it had any force, and why not, it enured to the benefit of the defendant and not of plaintiffs, for it extended the time within which he was required to write the play about two 'weeks, the period necessary for rehearsing the play; and if it has no force, then under the original contract he would be required to complete and deliver the play about two weeks previous to September 15, the time when plaintiffs originally agreed to produce it.

All of the substantial objections of defendant’s counsel were directed at the supposed invalidity of this memorandum and have thus been disposed. of; and the only remaining objections to be considered are, that the verdict is excessive, contrary to the evidence, contrary to law and against the weight of evidence.

After careful examination the conclusion is reached that the evidence justified the verdict. Judgment affirmed, with costs.

Ehrlich, Ch. J., and Newburger, J., concur.  