Orpheus Vaudeville Co. v. Clayton Investment Co.

• Citation: 41 Utah 605,128 P. 575
• Decision Date: 03 December 1912
• Docket Number: 2401
• Court: Utah Supreme Court
• Parties: ORPHEUS VAUDEVILLE COMPANY v. CLAYTON INVESTMENT COMPANY

128 P. 575

41 Utah 605

ORPHEUS VAUDEVILLE COMPANY v. CLAYTON INVESTMENT COMPANY

No. 2401

Supreme Court of Utah

December 3, 1912

APPEAL from District Court, Third District; Hon. Geo. G. Armstrong Judge.

Action by Orpheus Vaudeville Company against Clayton Investment Company.

Judgment for defendant. Plaintiff appeals.

REVERSED AND REMANDED FOR NEW TRIAL.

Gustin Gillette & Brayton for appellant.

Pierce Critchlow & Barrette for respondent.

FRICK, C. J. McCARTY and STRAUP, JJ., concur.

OPINION

FRICK, C. J.

This is an appeal from a judgment dismissing appellant's complaint. The judgment of dismissal is based upon respondent's objection interposed at the time of trial to the introduction of any evidence in support of the allegations of the complaint, upon the ground that the facts stated therein were insufficient to constitute a cause of action. The errors assigned are that the court erred in sustaining the objection and in entering a judgment dismissing the complaint.

In view of the foregoing, it becomes necessary to set forth, somewhat in detail, the material allegations of the complaint which are: That both parties are corporations. That on the 7th day of April, 1905, the parties entered into an agreement in writing, whereby in consideration of the appellant's promise to lease the building hereinafter mentioned for a period of ten years beginning October 1, 1905, at a rental of $ 60,000 for said term, payable as stated in the agreement, which agreement is specifically made a part of the complaint by reference, the respondent agreed "to completely build, erect, and equip at its . . . own cost, on or before October 1, 1905, in accordance with" certain plans and specifications to be approved by appellant, a certain theater building on certain property belonging to respondent in Salt Lake City, which property is fully described. That on the 27th day of April, 1905, the time for the completion and equipment of the building was extended, such extension being in writing and indorsed on said agreement from October 1, 1905, to the 31st day of said month, and thereafter, on the 12th day of June, 1905, the time for the completion and equipment of said building was in the manner aforesaid further extended until the 30th day of November, 1905. That no plans or specifications were ever submitted to appellant for its approval.

"That said building was not finished and completed by the 1st day of October, 1905, nor by the 30th day of November, 1905, to which date the period of the completion of the same had been extended, but that on or about the 25th day of December, 1905, defendant informed plaintiff the said building was fully completed and ready for occupancy, and that plaintiff might have possession of the same. That on or about the said last-mentioned date a written lease of said theater building, whereby the defendant leased the same to the plaintiff for a period of ten years, beginning October 1, 1905, and expiring on October 1, 1915, at the rental above, and in said agreement in writing mentioned, and in which plaintiff agreed and obligated itself to pay the same to defendant, was taken out of escrow, where it had been placed at the time of executing said agreement by said plaintiff and defendant, and because of the delay in erecting said building the said lease by interlineation was changed, so as to provide that the term should begin January 1, 1906, and continue for a period of ten years from that date. That said lease so changed was by the defendant herein offered to the plaintiff. That at the time of the offering of said lease the plaintiff herein protested and objected to the defendant that said building was not completed according to the terms of said contract as hereinafter specifically set forth. That defendant refused to complete said building in the particulars hereinafter set forth, and plaintiff was, by reason of the facts hereinafter set forth, compelled to and did accept said lease, under protest as aforesaid, and not waiving any of its rights under said agreement in writing or otherwise. That on and prior to the 25th day of December, 1905, this plaintiff was under a large forfeit amounting, to wit, to $ 2500, to third parties in the event it failed to open the theater for a theatrical performance on the night of December 25, 1905, which the defendant then and there well knew. That on or about said 25th day of December, 1905, and upon being notified by the defendant that said theater building was fully completed and ready for occupancy, plaintiff because and on account of said forfeiture to the third party aforesaid, and in order to avoid the same, took possession of the same from defendant under protest and after objecting to the same as aforesaid. That at all times plaintiff was willing and ready to perform all on its part to be performed under said agreement in writing dated April 7, 1905, and frequently demanded of defendant the preparation and submission to it of a full and complete set of plans and specifications for said building, and the building, erection, and completion of the same in accordance with said contract. That in erecting, building, and equipping said theater building in accordance with said contract it was necessary and essential, in order that the same could be used for theatrical performances, that the same should be equipped with an asbestos curtain, a ticket office, and brass rail for same, a gridiron and rigging loft, a manager's office, forty-eight chairs for theater boxes and stalls, and ceiling and wall decorations, all of which defendant at all times knew, and it became and was the duty of defendant herein to fully build, erect, and equip at the cost of defendant said theater building as hereinbefore set forth, but that defendant failed, neglected, and refused to perform said contract on its part to be performed as hereinabove set out, notwithstanding its duty so to do. That in order to complete the erection and equipment of the said building, and in order to put the building in such condition that it would be a theater building where theatrical performances might be given, and which it becomes necessary for the plaintiff so to do, and because of the failure of the defendant to perform its duties under said contract as hereinabove set forth, the plaintiff between the 25th day of December, 1905, and the last day of February, 1906, was compelled to and did install in said building, and was compelled to and did equip the same with, an asbestos curtain, ticket office, and brass rail therefor, manager's office, gridiron and rigging loft, forty-eight chairs for boxes or stalls, and ceiling and wall decorations at an expense and costs, to wit, of $ 2013.85, and that on or about the 1st day of July, 1906, it expended on further ceiling and wall decoration the further sum of $ 2000."

Upon the foregoing allegations appellant prayed judgment for the amount stated above.

Omitting the formal parts, the material portions of the agreement entered into between the parties to which reference has been made are as follows:

"The party of the first part hereby agrees to completely build erect and equip at the cost of the party of the first part, in accordance with plans and specifications to be prepared by architect C. M. Neuhausen, at the expense of the party of the first part, which plans and specifications shall first be approved by the party of the second part, a theater building, which building shall be erected on that certain piece of land situate in Salt Lake City, Utah, and described as follows, to wit: (Describing a certain piece of ground on State Street, between First and Second South Streets, Salt Lake City.) . . . The party of the first part further agrees that said building and entrance shall be completed and equipped in all particulars in accordance with said plans and specifications on or before the first day of October, A. D. 1905. The party of the first part hereby agrees to demise, lease and let the said theatrical building and entrance to the party of the second part for a term of ten years, commencing with the 1st day of October, 1905, and ending with the 1st day of October, 1915. The party of the second part in consideration of the covenants of the party of the first part hereby agrees to lease and rent from the party of the first part, the said building, premises and entrance for the term of years above specified and pay therefor as rental for said premises for said term the sum of sixty thousand dollars as follows, to wit: Ten thousand dollars to be paid to the party of the first part on the 1st day of October, 1905, seven thousand dollars of which shall be payment for the rent of said building and premises from the 1st day of October, 1905, to and including the 30th day of November, 1906, a term of fourteen months; the remaining three thousand dollars to be applied in full payment of the rent of said premises from the 1st day of April, 1915 ^[*] up to and including the 30th day of October, 1915. ^[*] During the remainder of said term, that is, from the 1st day of December, 1906, until the first day of April, 1915, the party of the second part agrees to pay five hundred dollars per month, monthly in advance on the first day of each and every month, during said remainder of said term until the said sum of sixty thousand dollars shall have been fully paid. For the purpose of carrying into effect this agreement, the parties hereto have contemporaneously herewith placed in escrow with Wells Fargo & Company Bank of Salt Lake City, Utah, the sum of ten thousand dollars, also a lease executed in duplicate by each of the parties hereto, which said money and lease are to be delivered by said Wells Fargo & Company Bank to the party entitled thereto under the terms of...