Coghlan v. Stetson

• Decision Date: 17 March 1884
• Citation: 19 F. 727
• Parties: COGHLAN v. STETSON.
• Court: U.S. District Court — Southern District of New York

19 F. 727

COGHLAN v. STETSON.

United States Circuit Court, S.D. New York.

March 17, 1884

Olin Rives & Montgomery, for plaintiff.

A. J Dittenhoefer, for defendant.

COXE J.

On the thirty-first day of August, 1883, the parties to this action executed the following contract:

'This agreement, made and entered into this thirty-first day of August, in the year of our Lord one thousand eight hundred and eighty-three, by and between John Stetson of Boston, in the county of Suffolk and commonwealth of Massachusetts manager of Fifth Avenue Theater of New York, of the first part, and Charles F. Coghlan, of London, England, of second part; witnesseth, that the said party of the second part contracts that he shall give his professional services as leading man of the Fifth Avenue Theater, New York, in such dramatic performances as shall be given in said theater, also in such theater in cities in the United States and Canada as said party of first part may direct for a season beginning October 8, 1883, and ending Saturday evening, May 3, 1884. It is understood and agreed that when said party of second part shall play in any theater outside of New York, he shall have his name featured on all printing and advertisements, and be recognized as the stock star of said Fifth Avenue Theater Company. Said party of second part agrees to furnish all his costumes and to pay his own fare and expenses to New York. Said party of the first part agrees to pay railroad fares for party of second part, including sleeping cars and transportation of luggage, should party of second part be required to play in any other theater outside of New York during this engagement. Said party of the second part agrees to report for rehearsal in New York, on or before Monday, September 24, 1883, and be in readiness to perform Monday, October 8, 1883. It is understood and agreed that seven performances each week shall constitute a week's business, but wherever it is customary in theaters to give more than that number, said party of second part shall give that number of representations. Said party of the first part shall have the selections of the plays to be presented at each entertainment, in which party of second part shall appear. Said party of first part agrees to pay party of second part the sum of one hundred dollars ($100) for each performance in which he shall appear, settlement to be made on the regular salary day of the theater. Said party of second part agrees that he will not perform in any theater in the United States or Canada till this contract shall have been faithfully fulfilled.

'In witness whereof, we have hereunto set our hands and seal.

'JOHN STETSON. (L.S.) 'CHARLES F. COGHLAN. (L.S.)

'It is further understood that said Stetson can continue this contract for six weeks by giving said Coghlan notice to that effect on or before March 1, 1884.'

The plaintiff came to this country in September, 1883, commenced acting at the Fifth Avenue Theater, New York, on the eighth of October, and continued until the tenth of November, a period of five weeks. On the evening of the latter day, having discovered that his name was omitted from the play advertised for the ensuing week, he called upon the defendant, and was informed that his services would not be required for an indefinite period. The plaintiff protested, and notified the defendant of his entire willingness to play, and that if he was compelled to remain idle through the defendant's neglect, he should insist upon being paid at the rate of $700 per week. The plaintiff was not permitted to play for three weeks. He demanded his salary for this period and was refused. Subsequently he appeared at Boston under the defendant's auspices. This action is to recover $2,100, alleged to be due under the contract for the three weeks aforesaid, commencing Monday, November 12, 1883.

It is argued that the plaintiff cannot recover for the reasons: First. He did not 'appear' during the period aforesaid, and the defendant was not required by the contract to permit him to appear. Second. Having subsequently accepted payment at the rate of $100 for each performance in which he appeared the plaintiff is estopped from claiming payment when he did not appear. Third. The defendant does not agree to employ the plaintiff, the agreement is by the plaintiff alone to render services for the defendant. Fourth. In any event, the complainant is defective, the action should have been for damages.

The principal controversy arises upon the construction of the written contract and must be determined by that instrument alone. The interpretation contended for by the defendant is so harsh, so unfair, so wanting in reciprocity that the court should not hesitate to reject it provided the instrument is susceptible of any reasonable construction. According to the defendant no obligation rests upon him to do anything. The plaintiff, on the contrary, who, to use the language of the...