Schonberg v. Cheney — 10 N.Y. Sup. Ct. 677

Majority

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JAMES SCHONBERG, Respondent, v. ARTHUR CHENEY, Appellant.

Headnote

Contract— to produce platy—damages for breach, of.

The defendant, the owner of a theater in the city of Boston, agreed with the plaintiff to produce a play written by plaintiff, on the seventh of May, and to pay him twenty dollars for each time of its performance. Upon his failure to perform, held, that the defendant was only bound to produce the play once, and he was only liable in damages for the amount to be paid for one exhibition.

Appeal from a judgment in favor of the plaintiff, entered on á verdict, and from an order denying a motion for a new trial, made on the minutes of the court.

Wm. D. Booth, for the appellant.

Charles Blandy, for the respondent.

The defendant was the proprietor of a theater in Boston, in which he agreed to produce and exhibit a play, dramatized by the

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plaintiff, and afterward failed to perform the agreement. For that failure the plaintiff was entitled to recover. And the extent of that right is the only point presented by the present appeal.

The contract was made by telegraph, and no substantial difference exists between the statement made of it in the complaint, and the nature of it as the dispatches exhibit it. In the complaint it was alleged, that, in consideration that the plaintiff would allow the defendant to act and produce the play, and would provide the manuscript and scene plots of such play, he contracted and agreed to produce it, and act and perform the same on the seventh day of Hay, 1870, and pay the plaintiff the sum of twenty dollars for each and every time the piece should be produced and acted at Selwyn’s theater in Boston ; and that he further contracted to produce upon the stage, and publicly represent the play within a reasonable time after receiving the manuscript and scene plots. -The plaintiff then avers that he accepted the contract and agreement, so offered and made, and performed on his part, but that the defendant refused to produce the play, and claims damages for such non-performance.

By the dispatch sent the plaintiff from the defendant’s agent, he was asked : “ What are your terms for Fern ande ? Can I produce it May seventh % ” To this the plaintiff replied: “ Twenty dollars per night. You can announce it for May seventh ; if you conclude, will send scene plots to-night. Answer.” The answer was returned: “ Agreed to terms; piece announced for May seventh ; send manuscript and plots immediately.”

There was nothing in the correspondence by letter, or in the other evidence given, changing or extending these terms. Both the allegations contained in the complaint, and the dispatches which passed between the plaintiff and the defendant’s agent, showed that a contract was made between the parties. But it was not one for any definite or indefinite number of nights; it was, on the contrary, only for the evening of the seventh of May, or, according to the complaint, for some occasion within a reasonable time after the receipt of the manuscript and scene plots. In either case, but one production, or exhibition, of the play was agreed upon. And that was all that the plaintiff could positively require from the defendant for the purpose of performing the agreement made. He undoubtedly expected, and that may have been the anticipation of the defendant’s agent, that the

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play would be continued after the first exhibition of it. But there is a very marked distinction between a mere expectation and the obligation imposed by a contract. The former is contingent and uncertain, while the latter is fixed and definite. The defendant did not agree to produce it on more than one night, and the plaintiff insisted upon no such agreement. That was left optional—dependent upon the success of the first production and the subsequent assent of the parties. If the play had been once produced, this court, nor no other, could say that the defendant would have been inclined to produce it again. That remained uncertain, and the parties had designedly left it in that condition by the terms they used in making their agreement. Under this state of the case, the plaintiff simply lost, by the failure to produce the play, what the defendant agreed to pay for what he had bound himself to do; and that was the price of one production. He may have lost more, but that cannot be affirmed with anything like a reasonable degree of certainty. The probability that he did, was too slight to render it the proper subject of compensation by way of damages. The law allows their recovery only when they appear to be the necessary, as well as natural results of the act complained of,^[1] and they cannot be allowed as the consequences off the omission of an act which the party was at liberty to perform or not, by the terms used in making the agreement. That was the state in which the proof left the present case, as to all the nights beyond the first. The defendant was not asked to bind himself beyond the one night expressly mentioned, and neither his agent nor himself used any terms from which it could be inferred that it was intended that he should enter into any such obligation. The court should therefore have charged, as the defendant requested, that the damages were limited to the sum of twenty dollars. The exception to the refusal to do so was well taken. The judgment and order should be reversed,- and a new trial ordered, with costs to abide the event.

Brady, J., concurred.

Judgment reversed and new trial ordered, costs to abide event.

* 2 Greenleaf on Ev. (5th ed.), § 254; Hamilton v. McPherson, 28 N. Y., 72 Newell v. Wheeler, 4 Robertson, 253.