Bernstein v. Meech

• Decision Date: 22 December 1891
• Citation: 130 N.Y. 354,29 N.E. 255
• Parties: BERNSTEIN v. MEECH et al.
• Court: New York Court of Appeals Court of Appeals

130 N.Y. 354

29 N.E. 255

BERNSTEIN

v.MEECH et al.

Court of Appeals of New York,

Second Division.

Dec. 22, 1891.

Appeal from supreme court, general term, fifth department.

Action by Jefferson D. Bernstein against Henry L. and John H. Meech for breach of contract. From a judgment of the general term, affirming a judgment entered on a verdict, defendants appeal. Affirmed.

Leroy Andrus and John T. Joyce, for appellants.

Herbert P. Bissell, for respondent.

BRADLEY, J.

By contract of date August 4, 1887, between the parties the defendants agreed to furnish to the plaintiff the opera-house known as the ‘Academy of Music’ in the city of Buffalo, December 22d, 23d, and 24th, for four performances by Jarbeau Comedy Company, and for that purpose the plaintiff agreed to furnish the services of the company during that time, and to take as the consideration 50 per cent. of the gross receipts of all sums realized from the performances. When this contract was executed each of the parties had the right to assume that the other would observe its stipulations. The performances did not take place; and the reason why they did not the plaintiff charges was attributable to the breach of the contract by the defendants. The purpose of this action was to recover damages as the consequence. The controversy involved the construction of correspondence had between the parties subsequently to the making of the contract. The first of it was a letter from the plaintiff to the defendants of August 12, 1887, in which he inclosed a written paper for them to sign as a contract to the effect that he should have 60 per cent. of the gross receipts of the performances, and he stated in the letter that he could not think of playing for less. When the defendants received this letter it may be they were permitted to understand that the plaintiff did not intend to have his company play for the stipulated portion of the receipts first mentioned, and to treat the contract as rescinded, or as still in force for such purpose as to them might be deemed available. The view which was taken by the defendants of the situation was represented by their letter of date August 13th to the plaintiff, in which they returned the contract unsigned, and said they did so ‘for the reason that we have a contract signed by you, and do not need any other for the appearance of Verona Jarbeau and company at our Academy of Music December 22d, 23d, and 24th, 1887.’ By this letter it seems that the defendants did not intend to and did not relinquish any rights which they had under the contract of the 4th of August. That agreement then remained in force, and, if the plaintiff failed to perform it, he would be liable to the defendants for the legitimate consequences of his default. No further communication was had between the parties until November 17th, when the plaintiff's agent, in his letter from Chicago to the defendants, inclosed advertising clippings to them for publication, and added: ‘Please keep Miss Jarbeau before the public as much as possible. I want to see her turn them away in your town, and she will if conditions are equal. If you had rather. I will address the newspapers myself.’ In that case he requested that the names of newspaper men to address be furnished him. The defendant, who was absent when the letter reached Buffalo, addressed to the agent at Chicago, November 28th, a letter expressing his surprise, with the remark that he had supposed from the plaintiff's letter of the 12th of August that his company was not coming to Buffalo, and added, ‘We cannot now arrange to play Verona Jarbeau’ the dates before mentioned. This letter was forwarded to Buffalo, and did not reach the agent until December 17th or 18th, when he came there to complete the advertising, and make the arrangements preparatory to the performance; and in due time the plaintiff with his company reached Buffalo, to perform his contract with the defendants. In the mean time they had arranged with the James Brown-Potter Company to play at the Academy of Music on those days, and the plaintiff was refused permission for his company to do so. Upon this state of facts the question was presented whether or not the defendants were relieved from the obligationof their contract with the plaintiff. This, in view of the circumstances, was treated by the trial court as a question of fact for the jury, and exception was taken to refusal to direct a verdict for the defendants. It is urged that the plaintiff's letter to the defendants must be treated as a refusal to perform, and as a breach of the contract on his part, which relieved them from its obligation, and afforded to the defendants a right of action. It is true that when one of the parties to an executory contract has renounced it the other party to it may act upon the assumption of such a breach before the time for...