
    Mary G. Shaw, Respondent, v. Richard Mansfield, Appellant.
    (New York Common Pleas
    General Term,
    January, 1895.)
    In an action for breach of contract of employment as an actress the evidence tended to show that plaintiff entered into negotiations with defendant for employment and certain terms were proposed, but as to whether or not they were accepted at that time the evidence was conflicting; that thereafter a written contract embodying such terms and others which had not been the subject of discussion was mailed to plaintiff, but was recalled before she signed it. Held, that the weight of evidence was in favor of the contention that no contract ever existed between the parties.
    Appeal from a judgment of the Eighth District Court in the city of New York, in favor of plaintiff, rendered by the justice without a jury.
    
      Hirsh c& Hasquin, for respondent.
    
      A. W. Gleason, for appellant.
   Bookstaver, J.

This is an action for breach of a contract of employment. After two conversations between the parties a written contract was submitted by defendant’s manager to plaintiff, which was recalled by him before it had been signed by either party. Plaintiff’s claim rests upon the ground that defendant employed her at their second interview, and the justice found in her favor. In this we think he erred. The weight of the evidence seems to be in favor of the contention that at these interviews negotiations for a contract only were had; any agreement arrived at was to be reduced to writing. Plaintiff testified that at defendant’s request she called upon him about the middle of July, 1884, at Newport, and had some conversation with him about entering his theatrical company, but no terms were engaged upon. In August she again called upon him at his request at the Herald Square Theater. At this interview defendant proposed to give her $100 a week for New York and $115 per week for the road to play a part in “ Prince Karl.” Whether or not she accepted these terms at that time is disputed.

Defendant asked her to come and try the part. She did so and rehearsed that day. The next morning she called at the theater and was told that there was no rehearsal that day. Mr. Slocum, defendant’s manager, handed her the written contracts, saying: “ Here are the contracts; I would like to have them fixed to-day.” From these it appeared that she was to engage for a period of thirty weeks at $100 per week. There was no stipulation in regard to the road. She explained the proposition defendant had made, and Mr. Slocum drew up new contracts embodying this change and sent them by mail to her the same day, a Wednesday, at the address she had given him. For some unexplained reason plaintiff did not receive the contracts until Friday, and Monday she received a letter from Mr. Slocum stating: “As you have not signed the contracts, we conclude you object to signing them. Therefore we have secured another actress for your part. We regret this very much, as we hoped to have you with us; we may have the pleasure some other time. Will you kindly send back the part you have in ‘Prince Karl?”’

Defendant testified that plaintiff did not accept the propositions made by him at the interview in August, but said she would consider them. He asked her to rehearse that he might judge of her capacity to fill the part. A reference to the written contract shows that many of the conditions therein were not discussed by the parties, such as the provision for discharge for incompetency, etc., and for cancellation of the contract by either party on two weeks’ notice at any time. Plaintiff’s assenting to the defendant’s proposition to submit a written contract thereafter to be executed is evidence tending to show that the parties had only arranged the terms which it was understood by them were to be inserted in the regular written contract, which is usual in such cases.

We, therefore, think that the weight of the evidence is with the defendant’s contention that no contract ever existed between the parties.

Judgment reversed and a new trial ordered, with costs to appellant to abide the event.

Bischoff, J., concurs.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  