Orpheus Vaudeville Co. v. Clayton Investment Co.

• Decision Date: 13 April 1914
• Docket Number: 2520
• Court: Utah Supreme Court
• Parties: ORPHEUS VAUDEVILLE COMPANY v. CLAYTON INVESTMENT COMPANY

140 P. 653

44 Utah 453

ORPHEUS VAUDEVILLE COMPANY v. CLAYTON INVESTMENT COMPANY

No. 2520

Supreme Court of Utah

April 13, 1914

Rehearing denied May 9, 1914.

APPEAL from District Court, Third District; Hon. M. L. Ritchie Judge.

Action by Orpheus Vaudeville Company against the Clayton Investment Company.

Judgment for Plaintiff. Defendant appeals.

See also 41 Utah 605, 128 P. 575.

AFFIRMED.

Pierce Critchlow & Barrette for appellant.

Gustin, Gillette & Brayton for respondent.

McCARTY C. J. FRICK, J., concurring. STRAUP, J., dissenting.

OPINION

McCARTY, C. J.

STATEMENT OF FACTS.

This is an action for damages for breach of contract. The cause was tried to a jury who returned a verdict for plaintiff, hereafter referred to as Vaudeville Company, in the sum of $ 4664.48. From the judgment rendered on the verdict, defendant, hereafter referred to as Clayton Company, appeals. The case was before this court on a former appeal. Orpheus Vaudeville Co. v. Clayton Inv. Co., 41 Utah 605, 128 P. 575.

The parties to the action, on April 7, 1905, entered into a contract in writing, which, so far as material here, is as follows:

"The party of the first part (Clayton Company) 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 shall be erected on that certain piece of land situated in Salt Lake, Utah, and described as follows (describing a piece of land on State Street between First and Second South Streets). . . . The party of the second part shall not have the right to require the expenditure by the party of the first part of more than thirty thousand ($ 30,000) dollars for the erecting and equipping of said building and entrance; but, in case the said party of the first part shall expend more than thirty thousand ($ 30,000) dollars in erecting and equipping said building and entrance, the party of the second part shall not, because of said greater expenditure, be required to pay any more rent for the said premises than is above provided, nor shall the party of the second part be required to pay any portion of said additional expenditure. . . . 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 1st of October, A. D. 1905."

The Clayton Company, at the time the contract was entered into, executed a lease of the premises to the Vaudeville Company. The lease, which is in the usual and customary form of such instruments, provided, among other things, that the Vaudeville Company "shall have and hold" the premises from October 1, 1905, until October 1, 1915. The contract and lease, each of which was in duplicate, were placed, together with an escrow agreement, in a local bank. The Clayton Company deposited its certified check for $ 10,000 with the contract and lease in escrow. The escrow agreement provided, among other things, that "the said certified check, together with one copy of the said lease, shall be delivered to the party of the first part upon compliance by it, on or before October 10, 1905, with all the terms of the said inclosed contract and plans and specifications, . . . and one copy of said lease shall thereupon be delivered to the party of the second part. If the party of the first part shall fail to comply with all the terms and conditions of said contract on or before the 10th day of October, 1905, the contents of this envelope are to be delivered to the party of the second part on the 1st day of November, 1905."

While the building, according to the contract, was to have been erected and equipped on or before October 1, 1905, owing to the contemplated structure being enlarged, there were several extensions of time granted, and hence it was not turned over to the Vaudeville Company until December 25th. It is alleged in the complaint:

"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, . . . but that defendant failed, neglected, and refused to perform said contract on its part to be performed as hereinabove set out." It is further alleged "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 became necessary for the plaintiff so to do, and because of the failure of defendant to perform its duties under said contract, . . . the plaintiff, between the 25th day of December, 1905, and the 1st day of February, 1906, was compelled to and did equip the same with an asbestos curtain, ticket office," etc., "at an expense and cost to it of $ 2013.85, and that on or about the 1st day of July, 1906, it expended in wall decorations the further sum of $ 2000." It is also alleged in the complaint that: "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 defendant herein offered to the plaintiff herein; that . . . the plaintiff protested and objected to the defendant, and did accept said lease under protest, . . . not waiving any of its rights under said agreement; . . . that on and prior to the 25th day of December, 1905, this plaintiff was under a large forfeit amounting to $ 2500 to third parties in the event that it failed to open the theater for a theatrical performance on the night of December 25, 1905; . . . that on or about said 25th day of December, 1905, and upon being notified by defendant that said building was fully completed and ready for occupancy, plaintiff, because and on account of said forfeiture to third parties, and in order to avoid the same, took possession of the same from defendant under protest, and after objecting to the same as aforesaid."

Defendant in its answer, among other things, alleged:

"That on or about the 25th day of December, 1905, plaintiff and the said defendant, by mutual consent, abrogated and rescinded any and all contracts theretofore existing between them respecting the erection, equipment, or adornment of the theater building mentioned; . . . that said action was taken by and between the parties hereto for and in consideration of the execution and delivery of the defendant to the plaintiff of a lease of the said building in the condition in which the same at that date was, and the said lease was then and there accepted by the plaintiff from the defendant, and the said plaintiff did then and there, in consideration of the rescission and abrogation of all contracts theretofore existing, and in consideration of the execution of said lease, enter into the possession and enjoyment of said building under the lease thereby granted; . . . that thereby all negotiations, contracts, agreements, and obligations theretofore pending between the parties were terminated and by express agreement held for naught, and all expenditures, outlays, and expenses incurred by the plaintiff in connection with said building since the said date have been and are at the sole cost of said plaintiff."

Plaintiff introduced evidence tending to show that, soon after it took possession of the building, it, at its own expense, made the decorations, furnished and installed the equipment mentioned in the complaint. The case was tried to a jury, who returned and rendered the following special verdict:

"(1) Was an asbestos curtain an essential part of the equipment of the theater? If so, what was its value at the time it was placed in the theater? Answer: Yes; $ 365.

"(2) Was a ticket office an essential part of the equipment of the theater? If so, what was its value at the time it was placed in the theater? Answer: Yes; $ 177.

"(3) Was a brass rail for the ticket office an essential part of the equipment of the theater? If so, what was its value at the time it was placed in the theater? Answer: Yes; ten dollars.

"(4) Were a gridiron and rigging loft essential parts of the equipment of the theater? If so, what was their value at the time they were placed in the theater? Answer: Yes; $ 788.

"(5) Were forty-eight chairs for theater boxes and stalls an essential part of the equipment of the theater? If so, what was their value at the time they were placed in the theater? Answer: Yes; no claim allowed.

"(6) Were decorations for the ceiling and wall an essential part of the equipment of the theater? If so, what was their value at the time they were placed in the theater? Answer: Yes; $ 2000."

From the judgment rendered on the verdict, the Clayton Company appeals.

McCARTY, C. J. (after stating the facts as above).

The first question presented by the appeal relates to the admission of evidence offered by the Vaudeville Company showing that the company was under contract and bond with a third party, which contract and bond provided for a forfeit to such party in case the company failed to open the theater in question on December 25, 1905. Counsel for appellant contend that this evidence was...