
    Placide, Plaintiff and Appellant, v. Burton, Respondent.
    Where by the terms of an agreement between the plaintiff, (an actor,) and the defendant, (a theatrical manager,) it was agreed that the plaintiff should, between October 9th, 1854, and June 1st, 1855, perform as an actor for the defendant, during four terms of four weeks each, and that there should be an interval of four weeks between the terms, the commencement of each term to be appointed by the defendant, and notice thereof given to the plaintiff, and where they subsequently agreed that the plaintiff should not perform in January or February, 1855, and where, after that, the plaintiff commenced playing about the 9th of October, 1854, and before the end of the second week, it was agreed, at his request, that such first term of four weeks should be divided into periods of two weeks each, the plaintiff to discontinue playing at the end of said first two weeks, then leave, and return and play the other two weeks so as to complete the same on or about the 1st of January, 1855, and the plaintiff left at the end of the first two weeks, and did not again return or offer to return, and was not requested to return, held,
    
    1. That the plaintiff was bound by the agreement, as modified, to return and play or offer to play said remaining two weeks, without any notice or request from the defendant so to do, and that the plaintiff’s failure to do so, ' was a breach of the agreement on his part; and that he was liable to the defendant for the damages resulting therefrom.
    2. That after such breach by the plaintiff of the agreement on his part, the defendant was under no obligation to employ the plaintiff further, and that no action would lie against the defendant for not having notified the plaintiff of the time of commencing other terms of four weeks each, and for not furnishing him employment for such terms, although the plaintiff might have been ready and willing to perform on being so notified.
    (Before Bosworth, Ch. J., and Hoffman and Moncrief, J. J.)
    Heard, April 6th;
    decided, April 30th, 1859.
    This is an appeal by Henry Placide, the plaintiff, from a judgment in favor of William E. Burton, the defendant, entered on the report of Henry Nicoll, Esq., as Referee.
    In 1854, the defendant was the manager of a theatre in the city of New York, known as Burton’s Theatre, and the plaintiff was an actor.
    This action is brought to recover damages on the theory, that in July, 1854, it was agreed between the parties, that the plaintiff should “ take part or give his services in the performances exhibited in said theatre, whenever required by the said defendant so to do, during every other or alternate four weeks, from the commencement of the then next theatrical season” to the close of it; that is to say, between September 4th, 1854 and June 2d, 1855, for a specified compensation, which the defendant agreed to pay, viz., $150 weekly, for each of said alternate four weeks, and one-third of the proceeds or receipts of said theatre for one night at the end of each alternate fourth week for his benefit, of the value of $125. That the plaintiff has always been ready to perform when called upon,' but that defendant has not complied with the agreement on his part, and that under such agreement he owes the plaintiff $1,950, with interest from the 4th of October, 1855, for which sum the complaint prays judgment.
    The answer alleged the facts hereinafter mentioned, and claimed that the plaintiff had broken the agreement on his part and demanded damages as a counterclaim for such breach.
    The facts, as in substance stated in the answer, and as found by the Referee, (with the exception that the answer states the agreement to have been, that the plaintiff should play, daily “every other or alternate four weeks” from the 9th of October, 1854, until the close of the season, about June 1st, 1855,) are, that prior to the opening of the defendant’s theatre in October, 1854, it was agreed between the plaintiff and the defendant, “that the former, at and for a compensation in that behalf agreed upon between them, should, between the 9th day of October, 1854, and the close of the theatrical season at said theatre, on or about the 1st of June, 1855, perform as an actor at said defendant’s theatre, nightly, during four terms or periods of four weeks each, the commencement of each of such terms or periods to be fixed and appointed by the said defendant, and notice thereof given to the plaintiff.” That afterwards and prior to said 9th day of October, 1854, the defendant, at the request of the plaintiff, consented to a modification of said agreement, by which it was agreed, between them, that the plaintiff might go to the city of New Orleans, on or about the 1st of January, 1855, to perform as an actor at a theatre in said city, and that the plaintiff might for such purpose remain absent from the city of New Tork until on or about the 1st of March, 1855. “ That afterwards and. in pursuance of the said agreement, the plaintiff, on or about the 9th day of October, 1854, commenced playing nightly at defendant’s theatre, and which playing was to be continued for a term or period of four weeks, that the plaintiff played for and during the first two weeks of the said term or period; that- on or about the expiration of the second week of the said term or period, the plaintiff proposed to the defendant that the said term .or period which the said plaintiff was then playing, according to his said agreement, should be divided into periods of two weeks each ; that at the expiration of said second week he' should discontinue playing at said defendant's theatre, but should return and play the remaining two weeks of said term, so as to complete the same just prior to his departure for New Orleans, on or about the 1st day of January, 1855, that the defendant assented to the said proposition, and that thereupon the said plaintiff Ceased playing at the defendant’s theatre at the expiration of the second week of the said term; that the said plaintiff did not thereafter return and play at defendant’s theatre the remaining two weeks of the said term or period, or ever after tender or offer to the defendant to play at said defendant’s theatre during the aforesaid theatrical season.”
    That the said defendant, after the said 1st day of March, 1855, did not fix or appoint any other terms or periods of four weeks for the plaintiff’s playing at defendant’s theatre as aforesaid.
    That the services of the plaintiff to the defendant' in playing as an actor at defendant’s theatre, were reasonably worth to defendant $100 per week, over and above the amount agreed by the defendant to be paid to the plaintiff for such services.
    The Referee found as conclusions of law—
    1. That by reason of the acceptance by the defendant of plaintiff’s proposal to divide the first term or period of playing as aforesaid into terms of two weeks each, and for the plaintiff’s return to play the remaining two weeks thereof as aforesaid, the original agreement was in that respect modified and the plaintiff became and was bound so to return and play for the said two weeks so agreed upon without further notice from defendant, and that by reason of his failure so to do, there has been a breach of the said original agreement as modified as aforesaid.
    
      2. That the plaintiff having failed to perform said original agreement, so modified, cannot bring an action against the defendant for any breach of said agreement occurring after the .breach thereof by the plaintiff as aforesaid, and that by the said breach thereof by the plaintiff, the defendant became and was absolved from all liability to the plaintiff, under said' agreement, accruing after such breach, and had the right to treat the said agreement as at an end.
    3. That by reason of plaintiff’s failure to perform the remaining two weeks of the said first term or period as aforesaid, he is liable to the defendant in damages, and that the measure of such damages is the value to the said defendant of the plaintiff’s services to him as an actor, over and above the compensation agreed to be paid to him.
    As a final conclusion of law in the premises, the Referee directed judgment in'favor of the defendant as against the plaintiff upon the causes of action in the complaint in this action alleged, and further judgment upon the counter-claims in said action for $200, and that the plaintiff pay "to the defendant the costs of this action.
    The action was commenced in October, 1855, and the Referee’s report is dated April 19, 1858. The plaintiff duly excepted to each of the Referee’s conclusions of law, and appealed to the General Term from the judgment entered on the report. Some portions of the testimony appear in the opinion of Mouckief, J.
    
      N. Dane Ellingwood, for appellant.
    I. The Referee, in his report, has found that the time of the commencement of each of the terms, was to be fixed and appointed by the defendant and notice thereof given to the plaintiff.
    II. The Referee, however, erred in finding that a breach of the agreement to divide the first term into two terms of two weeks each, had been committed by the plaintiff; because, whether the theatrical season was divided into four or five terms is wholly immaterial; the same condition applies in the one case as well as in the other. The defendant had reserved the right to fix the time of the commencement of each term, and the plaintiff the right to be notified; without such notice was given, the plaintiff could commit no breach on his part.
    III. The defendant himself did not pretend that the plaintiff had broken his agreement with him, upon the ground taken by the Referee, but upon another ground, namely, that the plaintiff had refused to perform after the end of the first two weeks, and that he so desisted from performing, contrary to the wish of the defendant; denying, expressly, that there was any agreement to divide the first term into two terms of two weeks each.
    IY. But admitting that there had been no express agreement that the defendant was at liberty to fix the time of the commence ment of each term, and that the plaintiff was entitled to be notified, the nature of the employment was such that the right so claimed by- the plaintiff and defendant respectively, would be implied. (Graddon v. Price, 2 Carr. & Payne, 610; Story on Contracts, § 974.)
    Y. The Referee also erred in finding that the plaintiff could not bring an action upon the original agreement after the said alleged breach by the plaintiff, and that the defendant, after the said alleged breach, had the right to treat such agreement as at an end.
    If the defendant had such right, (which is, however, denied,) he did not avow it, but, to the contrary, permitted the plaintiff, who was always ready and willing to perform at any time during such theatrical season, to believe that the original agreement -was still subsisting and in force. (Story on Contracts, § 977; Chitty on Contracts, p. 741; Lawrence v. Dale, 3 J. C. R., 23; Ibid., 17 J. R., 437.)
    
      H. A. Cram, for respondent.
    I. The whole question in this case was a question of fact, which the Referee has found more favorably for the plaintiff than the evidence warranted. Placide, in fact, broke his engagement by leaving at the end of the two weeks; he did this without the permission of Burton.
    - The modified agreement, also, is stated more favorably for Placide than the evidence warrants. Under the modified agreement, as made out from the testimony of both plaintiff and defendant, there was a clear breach by plaintiff in not returning to complete the first term of four weeks. Plaintiff was bound to do this without further notice.
    II. After this breach of the modified agreement found by the Referee, the plaintiff could maintain no action on the original agreement.
    
      HE. None of the various exceptions, either at the trial or to the findings of the Referee, were well taken.
   Moncrief, J.

There is no question that, on or about the 25th July, 1854, the defendant,'being the manager of a theatre in the city of New York, entered into an agreement with the plaintiff for his services as a performer in such theatre from the 9 th of October, 1854, to the 1st day of June, 1855, or until the time of the closing of the theatrical season of that year; the plaintiff, by the terms of such agreement, promising to play during four successive terms, of four weeks each, between the said 9th day of October and the time of the closing of such theatrical season, with an interval of four weeks intervening between each of said terms; the commencement of each of said terms to be fixed and appointed by the defendant and notice thereof given to the plaintiff. Nor is there any dispute that this agreement was, subsequently, and about September, 1854, modified by the defendant, at the request of the plaintiff, whereby the plaintiff was permitted to go to New Orleans on or about the 1st of January, 1855, to be absent until on or about the 1st of March following. This, substantially, is alleged in the complaint, stated in the answer, and found by the Referee.

The plaintiff commenced his service under this agreement on the 9th of October, 1854, and performed for two weeks. At about the end of this two weeks he proposed to the defendant that said first term, which the plaintiff was then playing, should bo divided into periods of two weeks each; that, at the expira-: 'tion of said second week, he should discontinue playing at said theatre, but should return and play the remaining two weeks of said term, so as to complete the same just prior to his departure for New Orleans on or about the 1st day of January, 1855; and the defendant assented thereto.

This finding of the Referee' is sustained, and is substantially, in respect to the terms of the modification, as testified to by the plaintiff himself.

There was no other or different agreement or understanding between the parties with reference to the performance by the plaintiff of the last two weeks of the first term, under the original agreement.

The plaintiff never tendered his services, or performed further or other than said two weeks under his - agreement, and now claims that he .was entitled to notice from the defendant of the time when he should commence the performance thereof. No such notice was given. The only question discussed upon the argument, and, it would seem, from the conclusions of fact and of law found by the Referee, that the only question in the case is, whether or not the plaintiff was entitled to such notice, or was •bound to tender his services at such reasonable time as to be enabled to complete the first term of four weeks, just prior to the 1st of January, 1855, according to the contract as modified in October, 1854.

The plaintiff had fixed and determined for himself, by his own proposition and the defendant’s acceptance of it, the time of the commencement of the last two weeks of his first term. The defendant had given notice to the plaintiff of the commencement of the first term, and the plaintiff began his performance of it, but, before completion, sought and obtained leave to make a different arrangement. He fixed, by that arrangement, the period for commencing the performance of this unfinished term, as he states in his evidence, by proposing to “divide that four weeks into engagements of two weeks each; that is, to perform two weeks, then go into the country and stay two weeks, and then to return and play two weeks.” Again, he says: “I propose to divide this four weeks’ engagement, play two weeks of it now, and return time enough before the 1st of January to play two weeks, then play those two weeks,” &c. This latter statement does not materially vary from the fact as found by the Referee; and the first statement has a specified time assigned. According to that, after an interval of two weeks he was to return and play: by the latter, it was left optional to the convenience of the plaintiff at. what time he should return, so long as he returned time enough to play the two weeks before the 1st of January. The plaintiff was bound to have returned and played, or tendered his services to play, the unfinished portion of his term, without notice from the defendant; and.not having so done, he not only has no claim upon the defendant in respect to that two weeks, but he thereby committed a breach of his agreement and became liable to the defendant for his damages sustained thereby.

The agreement had b.een reconstructed at the request of the plaintiff. At first, he was bound to have performed four weeks commencing in October, and other four weeks in-.each of the months of December, February, March and May. It was modified in September, by the plaintiff obtaining permission to be absent eight weeks from about January 1st to March 1st, 1855; and again changed so that, as it stood at the completion of two • weeks’ servicé, the plaintiff had excepted the December and February terms or periods of service, and left unfinished half of • the first term. This modification of the original contract would seem, necessarily, to require from the plaintiff an offer to perform, and to relieve the defendant from giving notice of a time when his services should commence. The plaintiff had received notice of the commencement of the first term, and was bound to complete it without further notice, unless he expressly stipulated to the. contrary; and there is no such provision in the agreement of October, 1854, but, on the contrary, that, substantially, fixes the middle of December as the time when the plaintiff would return and complete it. The plaintiff having broken his agreement in not returning and completing the first term, and never afterwards offering or tendering his services to the defendant in fulfillment thereof,- the defendant had a right to treat the contract as broken by the plaintiff, and was not bound to employ him in April or June, and is not liable by reason of not having notified him to perform a term in each of those months.

The damages found by the Referee were awarded as compensation to the defendant for the non-performance by the plaintiff for the residue of the first term; and his finding is sustained by the. evidence.'

After an examination of the whole case, I am of opinion that the conclusions of fact and of law, as found by the Referee, are correct, and should be sustained. The judgment, therefore, must be affirmed, with costs.

. Bosworth, Ch. J., and Hoffman, J., concurred in the conclusions stated in the opinion of Moncrief, J.

Judgment affirmed.  