Zenatello v. Hammerstein

• Decision Date: 20 March 1911
• Docket Number: 247
• Citation: 79 A. 922,231 Pa. 56
• Parties: Zenatello, Appellant, v. Hammerstein
• Court: Pennsylvania Supreme Court

79 A. 922

231 Pa. 56

Zenatello, Appellant, v. Hammerstein

No. 247

Supreme Court of Pennsylvania

March 20, 1911

Argued January 17, 1911

Appeal, No. 247, Jan. T., 1910, by plaintiff, from order of C.P. No. 1, Phila. Co., June Term, 1910, No. 176, discharging rule for judgment for want of a sufficient affidavit of defense in case of Giovanni Zenatello v. Oscar Hammerstein. Affirmed.

Rule for judgment for want of a sufficient affidavit of defense in an action of assumpsit. Before MAGILL, J.

The averments of the statement and affidavit of defense are sufficiently set forth in the opinion of the Supreme Court.

Error assigned was order discharging rule for judgment.

The order discharging the rule for judgment for want of a sufficient affidavit of defense is affirmed.

H Gordon McCouch, of Dickson, Beitler & McCouch, with him Henry S. Drinker, Jr., for appellant. -- The place of the execution of the contract is immaterial. The legality of the performance stipulated for is determined by the law of the place of performance: Waverly Nat. Bank v. Hall, 150 Pa. 466; Burnett v. Railroad Co., 176 Pa. 45; Musser v. Stauffer, 192 Pa. 398; Krantz v Kazenstein, 22 Pa.Super. 275; Harris v. White, 81 N.Y. 532.

It is not to be presumed that the parties intended to violate the law: Harton's Est., 213 Pa. 499.

Thomas Leaming, for appellee. -- The law of New York is a fact to be proved and under it the executory part of the contract is void: American Alkali Co. v. Huhn, 209 Pa. 238; Musser v. Stauffer, 192 Pa. 398; Hallen v. Thompson, 48 Misc. 642 (96 N.Y.S. 485); Stewart v. Thayer, 168 Mass. 519 (47 N.E. Repr. 420); Knight v. Press Co., 227 Pa. 185.

The facts are in dispute whether the plaintiff was ready to perform his undertakings, and whether the defendant gave him opportunity to do so.

Before BROWN, MESTREZAT, POTTER, ELKIN and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE MESTREZAT:

We do not agree with the learned court below that the affidavit sets up a prima facie defense in averring that by virtue of certain acts of assembly of the state of New York and their construction by the courts of that state the contract of the parties "was unlawful and void in that it was an agreement to perform in the state of New York any opera, or any parts of opera, or other dramatic performance, upon the first day of the week, commonly called Sunday, in violation of said statutes." A copy of the contract on which the suit was brought is attached to and made part of the statement. It was executed in New York and provides, inter alia, as follows: "The artist (Giovanni Zenatello) binds himself to sing in his capacity of tenor, and shall sing in Italian, in New York and in the United States of America, the operas of his repertory and those which will be indicated to him . . . Mr. Oscar Hammerstein (the defendant) binds himself to pay the artist the sum of 1300 American Dollars for each performance or Sunday concert which sum shall be paid to the artist the day after the performance." For present purposes we may assume, as defendant alleges, that the statutes of New York make it unlawful to perform in the state of New York any opera or other dramatic performance on Sunday, and that an agreement is void which stipulates for such performances on Sunday in New York. The contract between the plaintiff and the defendant and on which this action was brought, however, does not provide that the plaintiff shall sing only in New York, as assumed by the learned court below, but "in New York and in the United States of America." Zenatello was to sing each day of the week. The agreement, therefore, does not provide that he shall sing in New York on Sunday, and the presumption is that Hammerstein will not require him to sing in that state on Sunday but in some other part of the United States where Sunday concerts are not prohibited. The law will not presume that the parties contracted to do an unlawful thing or violate a statutory prohibition in carrying out its terms, but that their purpose was the accomplishment of a lawful object and the performance of the agreement in a place or territory where its performance was permissible. We must, therefore, construe this agreement to mean that the parties intended that the plaintiff should sing...