Ellis v. Thompson

Headnote

Contracts—Breach—Evidence—Admissibility.

Parties entered into a contract whereby defendant was to continuously produce plaintiff’s play, if a reasonable success attended its production. The play was produced twice only. In an action for defendant’s failure to perform the contract, there was evidence that defendant failed to properly prepare his lines, that rehearsals were insufficient, and that defendant cut out parts of the play, and interpolated material of his own. Plaintiff’s evidence, offered to prove that the play was well received and would have proved a financial success, was excluded. Held, that the question of success was for the jury, and that the evidence should have been admitted.

Appeal from circuit court, New York county.

Action by Henry Wyne Ellis against Denman Thompson for damages for breach of contract. From a judgment in favor of defendant, plaintiff appeals. Reversed.

The action was brought upon a written contract, bearing date October 2, 1884, which provided that a play entitled “Rich and Poor,” written by the plaintiff for the defendant, should be produced by the defendant, at as early a date as reasonably convenient, in the United States, and in as proper a form as was consistent with the necessities of production in a first-class theater; that the defendant should pay the plaintiff $100 per week while the play was being played, until he should have paid the sum of $5,000; that the defendant should produce the play continuously, if there was a reasonable success attending its production, for the benefit of plaintiff and the success of the play, in consideration of the plaintiff’s making over to the defendant, his heirs and assigns, all right and title to said play; and that the plaintiff should receive the $5,000 in full for the play and all claims thereon. It was conceded that this contract was made, and that thereafter the play was produced December 22, 1884, at Fall River, Mass., and December 23, 1884, at New Bedford, Mass., and was never produced thereafter. The plaintiff alleged in his complaint that the defendant violated the contract, in that he did not produce the play in as proper form as was consistent with the necessities of production in a first-class theater, and that' he did not produce the play continuously; that it was produced without proper rehearsals having been had; that the defendant did not know his part, and was not in a proper condition to play the same, and that he changed the play in important parts, to its great detriment, cutting out parts of it, and substituting therefor material of his own composition, without the plaintiff’s consent; that there were not sufficient performers in the cast to properly produce the play, and that there was no prompter present to aid its production; and that about January 1, 1885, the defendant notified the plaintiff that he would not again produce the play, or carry out the contract. This action was brought to recover $5,000, as damages for the breach of the contract. The defendant denied the allegations of the complaint as to a violation of the contract, and alleged affirmatively that the play met with no suceess whatever, but proved an absolute failure, and the defendant discontinued the performance thereof, as he had a right to do under the terms of the contract. The trial was had before the court and a jury. The plaintiff testified that about a week after the production of the play the defendant sent for him, and told him that he (the plaintiff) had done his work well, and the play was all right, but that he (the defendant) could not play his part, and that he would not try it again, and that he would try to sell the play. Another witness (Armstrong) testified that he met the defendant shortly after the production of the play, and said to him, “I hear that you have made a success of the plaintiff’s new play,” and the defendant replied, “Tes; it is a good play, but it is not in my way.” The defendant testified that he cut out parts of the play, and substituted his own material, and that he did not know his lines perfectly when he produced the play. Another witness (Salsbury) testified that he was the editor and publisher of a newspaper at Fall River, Mass., when the play was produced there, and that he saw the play produced, having a seat in one of the four front rows of orchestra chairs; that he had been engaged in dramatic criticism for nearly 30 years, and that during that time he had furnished such criticisms for the press; that he wrote a criticism of this play, after it was produced, and published the same in his newspaper in Fall River. He was allowed by the court to testify further that there was a roughness and want of finish in the initial performance of the play, and that the defendant forgot his lines several times, and needed considerable prompting, and that there was a fair audience present when the play was presented. He was then asked whether the company gave evidence of having properly rehearsed the play before its production. He was also asked how the play was received by the audience, and how the newspapers treated its production, and whether the criticism was favorable or otherwise, and to state the nature of the criticism. He was also asked to state whether the actors were called before the curtain, and how many times, and whether the play was received with applause, and how often. Objection was made on the part of the defendant to the witness’ answering these questions; but no suggestion was made in any of the objections that the witness was not shown to be an expert with reference to dramatic representations or dramatic criticisms. The court sus

tained all these objections, and the plaintiff excepted. At the close of the evidence the defendant moved for a dismissal of the complaint on the ground that the'$5,000 was only to be paid at a rate of $100 a week, on the condition that the play was a success, and the plaintiff had failed to prove that the play was a success. The court granted this motion, and the plaintiff excepted.