Capitol Amusement Co. v. Gallagher
| Decision Date | 13 September 1929 |
| Citation | 268 Mass. 321,167 N.E. 674 |
| Parties | CAPITOL AMUSEMENT CO. v. GALLAGHER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; Joseph Walsh, Judge.
Action by the Capitol Amusement Company against Jimmie Gallagher. Directed verdict for defendant, and plaintiff brings exceptions. Exceptions sustained.
Herman A. Mintz and George S. Alberts, both of Boston, for plaintiff.
This is an action of contract, brought originally in the municipal court of the city of Boston. It was thereafter removed to the superior court, and after a trial to a jury comes before this court on the exceptions of the plaintiff. The plaintiff declared on a written contract, a copy of which is annexed to the declaration. The defendant filed a general denial and an amended answer which reads:
‘And further answering the defendant says that if it shall be proved that the said Max Finn, mentioned in the plaintiff's declaration, was acting for and in behalf of his principal, the said Capitol Amusement Company, and that there is no variance between the contract sued upon and the declaration in said action (on the theory that the plaintiff is entitled to recover as an undisclosed principal), then the defendant says that the Capitol Amusement Company had been involved in labor disputes and such fact was material to the defendant; that the plaintiff, knowing the materiality of this fact, fraudulently concealed the name of the plaintiff, Capitol Amusement Company, from the defendant; that as a result thereof the defendant entered into the contract declared on by the plaintiff.’
An inspection of the written contract, which was admitted in evidence at the trial, discloses that the ‘agreement’ purports to have been made on January 20, 1928, by and between Mr. Max Finn, called the ‘manager,’ and Jimmie Gallagher and orchestra, called the ‘artist.’ By paragraph 1 of the contract the manager engages the artist, and the later agrees to present a certain singing musical specialty, with seven persons therein, for one day's performance, commencing on February 19, 1928, at the Capitol Theater, in the city of Lynn, for which the manager agrees to pay $175 at the conclusion of the final performance. The remaining 13 paragraphs of the executed contract are material to the issue raised by the bill of exceptions only because therein no reference is made to the plaintiff, nor any declaration contained that the ‘manager’ in executing the contract acted as agent for the plaintiff or other person, or that he then intended to act otherwise than for himself alone. The ‘agreement’ is signed on the same line: ‘Mr. Max Finn, Gen. Mgr.’ ‘Jimmie Gallagher.’ Opposite the names of the signers there is a bracket inclosing the letters The...
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...N.E. 188;R. T. Adams Co. v. Israel, 244 Mass. 139, 138 N.E. 319;Hamilton v. Coster, 249 Mass. 391, 144 N.E. 226;Capitol Amusement Co. v. Gallagher, 268 Mass. 321, 167 N.E. 674. The owner had come to the conclusion that she was unable to avoid a foreclosure of the mortgage and that the mortg......
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