Blitz v. Toovey — 28 N.Y. St. Rep. 160

Majority

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Walter A. Blitz and Mary Blitz, Pl’ffs, v. Henry Toovey, Def't.

(City Court of New York, Trial Term,

Filed January 2, 1890.)

Headnote

Contract—Performance.

Defendant contracted to employ plaintiffs to perform the fire act, and to walk, dance, etc., on glass, at his museum for two weeks, his letter head containing a .printed statement reserving the right to discharge for incompetency, carelessness or for making excessive terms. At the end of one week he discharged them on the ground that one of them did not give the performance required by the contract. She walked on glass without injury to her naked feet, but did not dance on it. Held, that a substantial performance was all that was necessary, and that the discharge was wrongful.

, The action, is brought to recover the sum of eighty dollars, claimed by the plaintiffs to be due them from the defendant on account of two weeks’ salary, commencing with the 22d day of April, 1889.

The plaintiffs are husband and wife, and made a joint contract with the defendant, who is the proprietor of the Harlem Museum, by which it was provided that the husband should perform during the two weeks contemplated by the contract what is known as “the fire act,” and the wife should during the same time perform-what was known as “ the glass act.”

In order to understand the contract and what was contem plated, it will be necessary to examine the correspondence between the plaintiffs and the defendant’s manager, Mr. Katen.

The first, defendant’s Exhibit A, was dated Milwaukee, Febru.ary 5, 1889, and was from the plaintiff, Walter Blitz, under his stage name of “ Balbroma,” and in which he writes, “ Can you book Mile. Quiltz, lady glass walker, and myself for fire act? This is the only lady in the world who walks, jumps and grinds broken glass to powder beneath her naked feet. Her act is a strong attraction. Would like two weeks, commencing .April 15th, salary jointly, $75 per week.”

To this a reply was sent which resulted in defendant’s Exhibit B, which is dated St. Paul, Minn., February 12, 1889, and which is as follows: “ Your’s at hand saying $75 was too much now. I had New York’s salaries in consideration when I wrote for that amount, as the lady gets that salary alone, but if there is no Sunday work, will call it sixty-five dollars per week jointly for a two weeks’ engagement. Wc are respectable people, good dressers .and good stage setting, for April 15th and 22d, open for lady glass'~walker and fire act. Bemember she is an attraction, not a fill in. An early answer will greatly oblige.”

A reply was sent to this, which is plaintiff’s exhibit, and in reply thereto we have defendant’s Exhibit C, which is dated at Cincinnati, March 2d, and is as follows: “Your letter at hand .asking me to write to you in March for self and wife, glass dancing and fire act. We have two weeks open in April, com.jnencing 22d; would like to fill in at your house. Wife is

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the only woman doing the glass act, and is a drawing card. Salary, sixty-five dollars per week jointly. An early reply will greatly oblige. You can get plenty of people for less, I have no doubt, but you can find no other woman to do this act, and it has always been done before this by the colored race and not by whites.”

To this a reply was sent by defendant’s manager, dated March 5th, and which is plaintiff’s Exhibit 2, and which resulted in a reply from the plaintiff marked plaintiff’s Exhibit 1, dated Cincinnati, March 7th, and which is as follows : “ Yours of the 5th at hand, offering my wife and self $50 per week for two weeks. That is a very low salary considering the act, as wife gets seventy dollars a week alone, but as I have business of importance that calls me to New York in April, I will accept April 22d and 29tli, at fifty dollars a week jointly, providing you keep it confidential, as I would not like it known. It would keep me from getting my regular salary at other houses. Will send you billing matter on Monday; you can send contract to yours respectfully, Balbroma.”

To this a reply was sent which is plaintiff’s Exhibit 3, and was dated March 9th, and is as follows: “Your favor of the 7 th instant at hand. I have booked yourself and wife to appear at this house for two weeks, commencing Monday, April 22d, at a joint salary of fifty dollars per week, you to do fire act, and wife to do the glass dancing. Send me billing matter at once for both acts. Yours truly, D. C. Katen, Manage)'.”

The contract was not so much for each of the plaintiffs, but a sum for them jointly; in other words they were the parties of the first part to the agreement, and the Harlem Museum Company, of which the defendant is the proprietor, was the party of the second part.

The letters written on behalf of the defendant liad printed on the margin the rules of the museum, and the two upon which the defendant relies are in these words :

First. “ The Harlem Museum Company reserves the right to annul and terminate an engagement with forfeiture of all claim for services at any time before or after a single appearance of an incompetent person, one becoming careless or indifferent about their work during their engagement, or one grossly excessive in making terms, or any one playing previously in the vicinity.”

Second. “ Every person must abide by any other rules the management may make for their conduct under penalty of immediate dismissal, with forfeiture of all pay due or to become due.”

The plaintiffs wore allowed to perform their respective parts for one week, were paid twenty dollars on account in the middle of the first week and at the end of that week were tendered twenty dollars more and were discharged, on the ground that Mrs. Blitz did not give the performance required by the contract. No objection was made to the “ fire act ” of Mr. Blitz, which was pronounced passable.

Jones Cochrane, for pl’ff; Feitretch, Silhman & Seybol, for deft.

The plaintiffs fall within that class of professionals commonly known as jugglers or mountebanks, and their exhibitions were declared illegal. 8 R. S., 7th ed., 1958, § 1 ; Penal Code, § 899; 1 Barb. Grim. Law, 594. They were regarded as calling people from their regular business to spend their time to no purpose, and their money foolishly, if not viciously. Downing v. Blanchard, 12 Wend., 383 . Circus companies and negro minstrelsy were tolerated, if licensed, not otherwise. Thurber v. Sharp, 13 Barb., 627 ; Downing v. Blanchard, supra.

In the city of New York, all such performances are authorized if the place where the exhibition is made is duly licensed by the mayor of the city. 3 B. S., 7th ed., 1958, 1959. But for this statute, the contract sued upon would be void, and no recovery could be had upon it Even an agreement to dance at" a certain theatre, it not being licensed according to statute, cannot be enforced. Gallini v. Laborie, 5 T. R., 242 ; King v. Handy, 6 id., 286. Though legalized, the nature of the contract sued upon can, in other respects, be no more altered than a leopard can change its spots. The court, in the circus case, 12 Wend., supra, said: “ The performance of the defendant was not a puppet show; nor a wire or rope dance; nor was it any act or feat of a mountebank, although the pretended drawing of a tooth was much like the tricks of a juggler, who makes sport by tricks of extraordinary dexterity by which the spectator is deceived." In the minstrel case, 13 Barb., supra, the court said: “One trick, that of mesmerizing the arm and leg of one of the party, so as to make them stiff and immovable, was a false show of power over the mind and body of another.” The acts referred to, if not jugglery, were those of legerdemain, trickery and imposture and these are the stock in trade of the juggler.

The plaintiffs while seeking employment were loud in their own praise respecting their performances, but not more so than the defendant, who knew from their nature that they consisted to a large extent of trickery and imposition.

Before he had seen either of the plaintiffs perform, the defendant made the following announcement concerning them on Ms play bills:

“CABIO!

The Beautiful Persian Princess, who DANCES IN HER BARE FEET ON BROKEN GLASS!

She accomplishes this feat without lacerating her fairy feet, Pirouetting, Jig Dancing and Waltzing ON broken GLASS as easily as if she were indulging her Terpsichorean proclivities on the luxurious carpets of her Oriental Home. This is undoubtedly THE MOST SENSATIONAL ACT OF THE DAY.

THE WONDERFUL FIRE KING1.

BALBBOMA,

THE HUMAN SALAMANDER!

The Mysterious Monarch of Eire and Flame Eats the Eternal Element as easily as if it were a Delmonico Dinner.”

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The defendant knew that “ Cario, the beautiful Persian princess,” recently from her “Oriental home,” was not a “princess,” and never had an “ Oriental home ” and that she was plain “Mary Blitz,” the wife of the co-plaintiff.

He knew that the wonderful fire king was not “ Balbroma,” that he was not a human salamander, and that he did not relish a meal of fire as if it were a Delmonico dinner; on the contrary, the defendant must have known that the plaintiffs were a young couple, performing tricks for the amusement of the public in order to earn the means with which to buy the kind of dinners ordinary mortals require to sustain life.

The announcement to the public made by the defendant is important only in this: it shows that exaggeration in regard to such performance is the rule, not the exception, and that managers understand that as well as performers.

The contract must therefore be construed liberally and in the sense in which the parties understood it, and not literally. Met-calf on Contracts, 277, 278.

The defendant concedes that Mr. Blitz filled the part of “Balbroma ” satisfactorily and that he succeeded passably well in eating fire and in making the public believe that a Delmonico dinner would not have been more palatable. The fault found with Mrs. Blitz is that she did not dance on broken glass, as one Ki-Ki, a colored male performer did. The evidence proves that Ki-Ki jumped on broken bottles and that his act was accomplished by a process of hardening the feet, already naturally tough, by an application of tannic acid boiled.

The defendant certainly could not expect the delicate Persian princess to discolor her white feet by any such process, for black feet on a white princess would have looked so odd that suspicion would have aroused distrust and required explanation. The proof shows that Mrs. Blitz actually “ did walk upon and jump upon and grind broken glass beneath her feet.” How she did it without sustaining serious injury is one of her professional tricks and secrets. The fact that she did it is enough for the purpose of this case.

Upon the evidence there was a substantial performance of the contract, and that is all the law requires in the case of ordinary agreements, and as much as it can require in respect to this extraordinary contract.

The performances given by the plaintiffs must have been reasonably well given, for the defendant continued them at all the daily and nightly _ exhibitions during an entire week. The public expressed no disapprobation and the discharge which followed at the end of the week was unexpected.

There was nothing in the contract or in the manner of its performance that authorized the defendant to discharge the plaintiffs, and as their discharge was wrongful, the plaintiffs are entitled to judgment for $83.05, the amount claimed, with interest.