Mittenthal v. Mascagni

• Decision Date: 26 February 1903
• Citation: 66 N.E. 425,183 Mass. 19
• Parties: MITTENTHAL et al. v. MASCAGNI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

183 Mass. 19

66 N.E. 425

MITTENTHAL et al. v. MASCAGNI.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1903

COUNSEL

Thos J. Barry, for plaintiffs.

Brandeis Dunbar & Mitter and Edw. F. McClennen, for defendant.

OPINION

KNOWLTON C.J.

This case comes before us on a report from the superior court submitting the question whether there was an error of the presiding justice in overruling the motion to dismiss, the answer in abatement, and demurrer filed by the defendant, and in ruling that the fifteenth paragraph of the contract between the plaintiffs and defendant, upon certain facts agreed, was not a bar to the prosecution of the action in this commonwealth. The contract referred to was entered into in Florence, Italy, where the defendant, a subject of the King of Italy, had his home, and where the plaintiffs citizens of the state of New York, elected a domicile by a provision of the contract. By it the defendant undertook to direct certain concerts, and direct and present certain operas, all composed by him, in the course of a tour through such parts of the United States and Canada as the plaintiffs should designate, covering a period of 15 weeks, for the sum of $4,000 per week, with sundry provisions for expenses, and the like and other stipulations prescribing the rights of the parties in various particulars, which it is unnecessary to state. The contract was in the Italian language, and according to the translated copy annexed to the plaintiffs' writ, it contains the following provisions: 'The present contract in its form and substance is regulated by the Italian laws by will of the parties concerned, and according to article nine of the Italian Civil Code. Whatever difference or question there might arise between the parties, including the agent, will be acted upon by the civil authorities of Florence, Italy. Maestro Mascagni reserves the right to direct action in New York for the payment of his recompense, and therefore he alone has the faculty to derogate the competence of the established contract.' The defendant moved to dismiss this suit, and answered in abatement, and demurred on the ground that, under this provision, our courts have no jurisdiction.

The construction and legal effect of a contract is governed by the lex loci contractus unless there is something in it indicating a different intention of the parties. O'Regan v. Cunard Company, 160 Mass. 356, 35 N.E. 1070, 39 Am. St. Rep. 484; Brockway v. American Express Co., 168 Mass. 257, 47 N.E. 87; Fonseca v. Cunard Company, 153 Mass. 553, 27 N.E. 665, 12 L. R. A. 340, 25 Am. St. Rep. 660. In re Missouri Steamship Company, 42 Ch. D. 321; Hamlyn v. Talisker Distillery, App. Cas. [1894] 202. This contract was made in Italy, where one of the parties had his permanent home, and the other a domicile elected by the terms of the contract. It was to be performed in part there, for the plaintiffs were to pay the defendant $7,000, 10 days before the time fixed for his departure from Cherbourg for the United States, but the further performance was to be in the United States. The intention of the parties that it should be governed by Italian laws was not left to inference, but was expressed in words.

The first and principal question is, what is the effect of the stipulation in regard to the adjustment of differences or questions between the parties? We have little doubt that it was meant to give exclusive jurisdiction of all such matters to the Italian courts; saving only jurisdiction of suits by the defendant to recover his compensation, which is given to the courts of New York. This seems to be the meaning of the words of this translation, and another translation set out in the answer in abatement, whose correctness has not been disputed, tends to make this meaning even clearer. It is averred in the answer in abatement that such a provision is legal and binding under the laws of Italy. Of course, if this be true, it is immaterial what construction is put upon it under our laws. There is certainly nothing so objectionable in it, on grounds of public policy, that our courts will refuse to give it effect under our treaty with Italy, which gives the citizens of each country full rights in the courts of the other. Fonseca v. Cunard Company, 153 Mass. 553, 27 N.E. 665, 12 L. R. A. 340, 25 Am. St. Rep. 660. It is said in the report that the hearing was upon the pleadings, 'without objection that there was no reply to the answer in abatement.' We are not quite certain whether, in the absence of a reply, the averments of this answer were taken to be true. If they are true, it is the duty of our courts to give the contract effect according to the law of Italy; but we infer, in the absence of proof in support of the averments of the answer, that the case was considered upon the declaration and admitted facts only. Assuming this, we must also assume that the law of Italy is like our own (Harvey v. Merrill, 150 Mass. 1, 22 N.E. 49, 5 L. R. A. 200, 15 Am. St. Rep. 159), and we come to the question whether such an agreement of parties to a contract is valid here.

It is decided that an agreement in a contract that the parties shall not avail themselves of their right to an appeal to the courts for the settlement of their controversies, but shall submit them to private arbitration, will not be enforced because it is such an utter abnegation of one's legal rights as should not be permitted. Rowe v. Williams, 97 Mass. 163; Wood v. Humphrey, 114 Mass. 185; Miles v. Schmidt, 168 Mass. 339, 47 N.E. 115. On the other hand, it is allowable for parties...