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Strakosch v. Strakosch

32 N.Y. St. Rep. 238 Court N.Y. City Ct. Decision date 1890-06-24 English

Delivered by McAdam, Ch. J.

Contents

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p. 238
Edgar Strakosch, Pl’ff, v. Carl Strakosch, Def’t.
(City Court of New York, Trial Term
Filed June 24, 1890.)

Headnote

Contract — Theatrical—Meaning of term “ until close of season.”" Plaintiff was employed by defendant as advance agent of an opera company, “until the close of the season, which will not last longer than the middle of May.” Plaintiff filled up the contracts with sub-performers, which provided that they should be cancelled in case of serious illness of the leading soprano. On account of such illness defendant closed the season January 26, and the performers were paid off, plaintiff assisting in doing-so." Held, that the terms of the contract showed that the duration of the. season was uncertain, and left to be determined by future events, that it was effectually brought to an end on January 26, and that plaintiff could not. recover damages for not being permitted to perform services thereafter.
On June 11, 1888, the plaintiff and defendant entered into an. agreement whereby the defendant employed the plaintiff to act as advance agent and business manager of an English opera company, of which the defendant was proprietor, and in which Clara. Louise Kellogg was the principal artist. The employment was to-commence June 18, 1888, at $25 per week, until November 4*.
p. 239
1888, and from that day at $75 per week, “until the close of the season, which will not last longer than the middle of May, 1889.” The plaintiff was paid until January 26, 1889, when the season was brought to a close on account of the illness of Miss Kellogg. The action is to recover as damages the salary from January 26, 1889, until May 12, 1889, when it is claimed the season would properly have come to an end. The demand aggregates $1,125.
Charles De Witt Brower, for pl’ff; Charles Wehle, for def’t

The determination of the action depends upon the interpretation of the phrase “until the close of the season,” which the language of the contraen declares “ will not last longer than the middle of May,” and which implies that it might not last so long. The terms used in the contract, together with the evidence in respect thereto, show that the time when the season was to close was uncertain and left it- to be determined by future events, such as financial success or failure, illness or other circumstances affecting the continuance of the enterprise. Some one had to determine when the exigencies of the situation required a limit to be put to the performances, and this person in the nature of things was the defendant, the proprietor and responsible leader of the troupe. The defendant drew the season to a close January 26, 1889, owing to the illness of Miss Kellogg, the chief attraction of the venture, and all the attaches were paid to that date and were furnished with transportation to their respective homes. In the sub-contracts with performers, filled in by the plaintiff, are these words: “ In case of the serious or prolonged illness of Clara Louise Kellogg, the leading soprano, this contract shall be terminated and canceled,” a circumstance proving that the company was likely to disband on the possible occurrence of the event specified. The event occurred, and the illness of Miss Kellogg was of a serious and prolonged nature. The different employees accepted the situation, took their pay for services actually rendered and receipted in full. The plaintiff was active in bringing about this result, and his conduct confirms the theory contended for by the defendant, that the season was effectually brought to an end at that time. This brings the contract as near to the actual meaning of the parties as the words they saw fit to employ, properly construed, and the rules of law will permit. It gives effect to their evident intention, conforms to the situation of the parties and the subject matter of the contract, accords with their acts which may be called to aid in the interpretation of their writings, and dovetails in with the sub-contracts, all of which went to make up the operatic combination of which the plaintiff formed part. -

It follows that the plaintiff, having been paid till January 26, 1889, when the season was properly brought to a close, cannot recover, on any fiction of law, damages for not being permitted to perform services thereafter, and that there must be judgment for the defendant.