Ferris v. Polansky

• Decision Date: 17 June 1948
• Docket Number: 189.
• Citation: 59 A.2d 749,191 Md. 79
• Parties: FERRIS v. POLANSKY.
• Court: Maryland Court of Appeals

59 A.2d 749

191 Md. 79

FERRIS v. POLANSKY.

No. 189.

Court of Appeals of Maryland

June 17, 1948

Appeal from Superior Court of Baltimore City; E. Paul Mason, Judge.

Suit by Don Ferris against Hyman Polansky, individually and trading as Rail Inn, for wrongful cancellation of contract for plaintiff's band to play at defendant's place of business. From an adverse judgment, plaintiff appeals.

Affirmed.

A David Gomborov, of Baltimore, (Gomborov & Gomborov and H. Lee Brill, all of Baltimore, on the brief), for appellant.

William L. K. Barrett and Philip Beigel, both of Baltimore, for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

COLLINS Judge.

This is an appeal from a judgment of the Superior Court of Baltimore City rendered by the Court, sitting as a jury, in favor of the appellee, Hyman Polansky, individually and trading as Rail Inn, defendant below, for costs, in a suit instituted against him by Don Ferris, plaintiff below, appellant here. The amount sued for was $798.

The appellee filed a motion in this case to dismiss the appeal on account of the failure of the appellant to promptly designate the portion of the record, proceedings and evidence to be contained in the record on appeal, as required by Rule 18 of this Court. As it does not appear that the appellee was in any way prejudiced, the motion to dismiss the appeal will be denied.

On or about October 11, 1946, the parties hereto entered into the following agreement: 'This constitutes a contract of agreement between Hy Polansky and Don Ferris for the services of an orchestra to be furnished by Don Ferris for the Rail Inn, owned by Hy Polansky, the music to be furnished will be three (3) men on Friday, four (4) men on Saturday and Sunday nights from the hours of 9 p:m until 1:30 a:m beginning on Friday, October 11, 1946 and running through the entire session ending on 1947 4/30/47 The price for the services of the Orchestra will be one hundred twenty ($120.00) dollars for the three (3) nights to be paid on Sunday night, the finish of the work week. Don Ferris will be strictly accountable to Hy Polansky for the services of the orchestra and will be allowed to be off on certain nights as long as the Orchestra is accounted for in first consideration. If Band proves unsatisfactory contract is subject to 2 weeks notice.'

The testimony shows that the band consisted on Fridays of a string bass, drums and piano and on Saturdays and Sundays of a saxaphone, string bass, drums and piano. Out of thirty nights when the band played for the appellee, the appellant was absent ten nights. When the appellant, who played the string bass, was not present, he supplied another person who played a guitar. Appellant admitted that the appellee probably objected to the substitution of the guitar for the string bass. He admitted that the appellee complained to the musicians in the band about this substitution. He said however, that this objection was never made to him. He further admitted that the appellee complained to him because he was absent one-htird of the time. The piano player stated that the appellant told him once or twice that the appellee objected to the guitar being substituted for the string bass. The saxaphone player also testified that the appellant told him on one or two occasions that the appellee did not like the guitar substituted for the string bass because the guitar 'overshadowed the band'. Appellee testified that Saturday nights were the most important nights and that was when he wanted the appellant present.

On December 5, 1946, the appellee notified the appellant that the services of the band would be no longer required after December 15, 1946, and the contract was cancelled as of that date. The appellee said that the reason he cancelled the contract was because the band needed a leader, and he did not want the guitar there instead of the bass because everyone was complaining about it, and the music was not satisfactory. He said that he made this complaint to the appellant twice before he gave him notice on December 5th that the contract was terminated. He said when he complained to Ferris that appellant said he had a contract and could do anything he wanted to do, and walked away.

Appellant claimed that the reason the contract was cancelled was because the appellee desired to save money. He claimed that this was substantiated by the fact that immediately after the contract with the appellant ceased on December 15, 1946, the appellee rehired the same three men who had previously played in the band, and these three men were still playing at the Rail Inn at the time of the hearing in the case. However, the appellee testified that on December 15th, the night when the two weeks notice expired, Earl Ball, who played the piano, told Jack Lucky, the drummer, that he wanted to see the appellee. When the appellee approached Earl Ball, Ball said: "Do you have a band?' I said, 'No, I haven't.' He said, 'Let me take charge of the band, I think I can handle it.' I said, 'If you want to try it, it's up to you.' He tried and it's still there.' Earl Ball, the piano player, testified that he approached the appellee for the employment through Jack Lucky a night or two before the notice expired. He said that he felt it was his privilege to take whomever he wanted in the new orchestra. He said that the appellee told him that he could only pay for three players. He later testified that the appellee said that all he wanted was three instruments. At all events, if the appellee actually had a right to cancel the contract, he did not lose the right because he saved money by dispensing with a string bass that he did not get and a guitar that he did not want.

Appellee said at the time of this suit the band consisted of the saxaphone, piano and drums and had no string instruments and it was now satisfactory.

There have been a number of cases in this Court involving contracts for delivery of land or materials to be satisfactory to the buyer. Among those are the following. In B. & O. Railroad Company v. Brydon, 65 Md. 198, 611, 3 A. 306, 9 A. 126, 57 Am.Rep. 318, the railroad company contracted to purchase large quantifies of coal of such quality as would be satisfactory to the corporation's master of transportation and master of machinery. This Court in that case said, 65 Md. at page 220, 3 A. 309: 'Certainly they were not obliged to accept the coal if they thought it was not fit for the uses contemplated by the contract. Neither, on the other hand, would they be justified in rejecting it for the reason that it did not possess qualities which, at the time of the contract, it was known by the parties that it did not possess. By the terms of the contract the whole decision was committed to them. If they made their decision against the coal in good faith, the defendant would not be obliged to accept it; but if they fraudulently rejected it, their judgment would be without effect in law, and the defendant would not be excused by it.'

In the case of Devoine Company v. International Company, 151 Md. 690, 136 A. 37, which involved a contract for delivery of certain materials of 'quality satisfactory', the Court assumed that this meant of quality...