Wirth & Hamid Fair Booking, Inc. v. Wirth

• Court: New York Court of Appeals
• Writing for the Court: LEHMAN
• Citation: 192 N.E. 297,265 N.Y. 214
• Parties: WIRTH & HAMID FAIR BOOKING, Inc., et al. v. WIRTH et al.
• Decision Date: 03 July 1934

265 N.Y. 214
192 N.E. 297

WIRTH & HAMID FAIR BOOKING, Inc., et al.
v.
WIRTH et al.

Court of Appeals of New York.

July 3, 1934.

Action by the Wirth & Hamid Fair Booking, Inc., and another against Frank Wirth and another. From a judgment of the Appellate Division (240 App. Div. 413, 269 N. Y. S. 709) reversing on the law and facts a judgment of the Special Term, which dismissed the complaint, and making a new finding of fact and conclusions of law, defendants appeal.

Modified, and affirmed as modified.

[192 N.E. 298]

[265 N.Y. 215]Appeal from Supreme Court, Appellate Division, First department.
A. L. Geilich, I. Maurice Wormser, and Irving Mariash, all of New York City, for appellant.

265 N.Y. 216]Arthur Hutter, for respondent.
LEHMAN, Judge.

As part of a contract for the sale of the stock of Wirth & Hamid Fair Booking, Inc., the defendant Frank Wirth agreed that for the term of seven years he would not engage within a specified territory in ‘the booking and/or supplying of theatrical artists and/or entertainers of any kind or character, whose services are to be performed in any fair, park, celebration, pier, carnival, circus (except as hereinafter provided) style show or pageant, fireworks at parks and/or fairs, auto races at parks and/or fairs, or any of them. * * *’ The purpose of the restrictive clause was to prevent Frank Wirth, who had previously conducted the business of the plaintiff corporation, from competing in the business of that corporation and thus destroying or diminishing the value of the good will of the corporate business. Wirth was at that time interested in a circus, and the [265 N.Y. 217]parties to the contract understood that he intended to continue booking that circus. In order to permit that, the general restrictive covenant was made subject to specified exceptions in regard to booking performers at a circus.

Concededly the defendant Wirth has, since the execution of the contract, attempted to book his circus at various fairs and piers and parks, and he did book his circus at a fair of the Maryland State Fair and Agricultural Society of Baltimore. He claims that in so doing he has kept strictly within the exception to the restrictive covenant. The plaintiffs, claiming that these acts constitute a violation of the restrictive covenants, have brought this action in which they seek a judgment, declaring that the defendant Wirth has breached and violated the contract, and enjoining him from continuing such violation and from carrying out contracts which it is claimed were made in violation of the restrictive clause.

The complaint incorporates the contract between the parties. By its terms the restrictive covenant is made subject to the exception that, ‘notwithstanding the restrictive covenants contained in this subdivision, the party of the first part herein, however, shall have the right and privilege to conduct, operate,

[192 N.E. 299

control, book and engage theatrical artists for one circus and/or specialty show in any of the states and provinces enumerated in this subdivision during the months of November, December, January, February, March and April of each year * * * and the said party of the first part shall have the right and privilege to conduct, operate, control, book and engage theatrical artists for two circuses and/or specialty shows in any of the states and provinces enumerated in this subdivision during the months of May, June, July, August, September and October in each year.’

The restrictive covenant by its terms precludes the defendant from booking performers at any ‘circus except [265 N.Y. 218]as hereinafter provided.’ The subsequent provisions permit the defendant to book performers for one circus during the winter months and for two circuses during the summer months. The defendant has not booked more, and it is not shown that he is endeavoring to book more. Therefore the plaintiffs have failed to show that the defendant has violated that part of the restrictive covenant which in terms precludes the booking of artists or entertainers whose services are to be performed at a circus. They do not, however, rely primarily upon that part of the restrictive covenant. The restrictive covenant is not confined to the booking of entertainers whose services are to be performed at a circus. The restriction by its terms applies to the booking of artists or entertainers whose services are to be performed in ‘any fair, park, celebration, pier, carnival, circus except as hereinafter provided, style show or pageant, fireworks at parks and/or fairs, auto races at fairs or any of them.’ If the words ‘circus except as hereinafter provided’ had been omitted from this enumeration, the omission would not have resulted in excluding from the restrictive covenant the booking of entertainers whose services would be performed in ‘any fair, park, celebration, pier or carnival,’ though in connection with a circus. Because these words are included in the enumeration, the scope of the restriction is broadened so that it now embraces booking of performers in a ‘circus except as hereinafter provided,’ though the performance does not take place in ‘any fair, park, celebration, pier or carnival.’ The question then arises whether the parties, by the use of the words ‘circus except as hereinafter provided,’ intended not only to extend the restrictive covenant to include a circus which does not come within the exception as thereinafter provided, though not performed in a fair, park, celebration, pier, or carnival, but also to exclude, from the scope of the other restrictions, performances at such a place but in connection with a circus for which [265 N.Y. 219]the defendant would otherwise be permitted to book performers in accordance with the subsequent provisions of the contract.

It may be argued that, in accordance with a strict grammatical construction of the restrictive covenant, the inclusion in the enumeration of a ‘circus except as hereinafter provided’ does not limit the scope of the other prohibitions there enumerated. We search a contract do discover the intention which the parties have formulated in its written language. Often punctuation and grammatical construction are reliable signposts in the search. At times the language of a contract, read as a whole and in the light of the circumstances surrounding its execution, may disclose an intention which would be thwarted by a...