Rothenberg v. Packard

• Decision Date: 02 May 1910
• Docket Number: 14488
• Citation: 97 Miss. 428,52 So. 458
• Court: Mississippi Supreme Court
• Parties: LOUIS ROTHENBERG v. CLARENCE H. PACKARD

52 So. 458

97 Miss. 428

LOUIS ROTHENBERG v. CLARENCE H. PACKARD

No. 14488

Supreme Court of Mississippi

May 2, 1910

FROM the circuit court of Lauderdale county, HON. JOHN L. BUCKLEY Judge.

Packard appellee, was plaintiff in the court below; Rothenberg appellant, was defendant there. From a judgment in plaintiff's favor, predicated of a peremptory instruction, the defendant appealed to the supreme court.

The plaintiff was the manager of a company of actors and actresses; the defendant owned a playhouse or theater building in Meridian. The parties entered into a written contract by which two theatrical performances were to be given by plaintiff's company in defendant's house one in the afternoon and the other in the evening of the same day, and plaintiff was to be paid by defendant seventy per centum of the receipts, to be collected by defendant.

When the time approached for the beginning of the first performance the actors and actresses belonging to plaintiff's company made known the fact that they would not appear upon the stage at either performance unless the sums due them for salaries in arrear were paid. Plaintiff's traveling agent being unable to pay them applied to Jones, defendant's agent in charge of the house, to know what could be done. This led to a conference between the parties and the striking actors and actresses in which it was verbally agreed that defendant should pay the seventy per centum of the two performances to the actors and actresses to be credited on their salaries, and that the performances should be enacted. Plaintiff's traveling agent assented, the actors and actresses acquiesced, the performances were given under the verbal contract and the defendant appropriated the seventy per centum in accordance therewith.

Afterwards plaintiff sued defendant on the written contract, which contained the following provisions, among others:--

"It is agreed that during this engagement no performance or rehearsal other than herein stipulated shall take place at the above mentioned building without the consent of the said (plaintiff) first party.

"The party of the first part (plaintiff) is in no way responsible for any moneys advanced to his agent or representative unless specially authorized in writing.

"This contract is personal and not assignable, and must be carried out by the parties hereto and not by others.

"The party of the first part (plaintiff) is not to be held responsible in case sickness or other unforeseen occurrence should prevent him filling above date."

Judgment reversed and cause remanded.

Bozeman & Fewell, for appellant.

The stipulation of the contract sued on in these words: "It is agreed that during this engagement no performance or rehearsal other than herein stipulated shall take place at the above mentioned building without the consent of the said first party" has nothing to do with this controversy. It was never contemplated by the parties to said contract that the situation confronting Jones and the company and their adjustment of same would be a violation of this provision.

Undoubtedly the above provision was to prevent other shows or plays being produced at the opera house on the dates fixed for the production of plaintiff's plays. It was never designed for the purpose of preventing the production of this same show in the event that the actors refused to act under said contract.

The situation presenting itself to Jones, manager for appellant was wholly unforeseen and relieved the appellee from his contract as provided by the following section thereof: "The party of...