OOGHLAN
1'27'
As one of the cases now in this court, and presenting the' -same questions as this, involves a sufficient sum to be reviewed by the supreme court, and is, to be presented to that court; aU proceedings in this case will be stayed,and no judgment be entered, until the decision of that case on writ of error, or until the further order of this court. COXE, J. I concur in the disposition made of this case; but, for the reasons heretofore stated by me, (Rich v. Town of MtJntz, 18:FED. REP. 52, and Ohandler v. Town oj Attica, ld. 299,) I cannot agree with the circuit judge in the construction placed by him upon the act of 1871.
COGHLAN
STETSON.
IVtrcuit Court, S. D. HiM York.
March 17, 1884.)
L
CoNTRACT-RULES OF INTERPRETATION.
clines most nearly to.jl,lstice and common sense. 2. SAME-EsTOPPEL.
is capable of two interpretations, it must be given that construction which in-
3.
SAME-IMPLIED AGREEMENT.
Where an employe agrees to work during a·' definite period for a stipulated sum, and enters upon the discharge of his duties under the contract, and renders services which are accepted by empJoyer, the law ill,lplies ment upon the part of the latter to furmshllmployment to the servant pay for it as stipulated in tne agreement.' '. ". Amendments will be allowed to correct errors in .pleading when site party is not misled and substantial justice sorequires; It is not the policy of modern procedure to defeat a party who has a meritoriotis cause'of actldn because he has not declared in the right form.: '
4.
PLEADING-AMENDMENT.
Trial by the Court. , Olin, Rives et,Montgomery, for pla.intiff. A. J. Dittenhoejer; for defendant. , COXE, J. On the thirty-first day of August, lS'8S, the parties to this action executed the following contract: "This agreement, made and entered into this thirty-firSt day of August; in the year of our Lord one thousand eight hundred and' eighty-three, by and between John Stetson of Boston, in the county of Suffolk of Massachusetts, manager.of Fifth Avenue Theate;rof,New first par:t, and Charles F. England,ofsecp:ndpartj witnesseth, that the said' party oithe secolld part contracts· that· he· shall. give his professional services as' leading man of tbe·F,ifth Avenue Theater, New
728
FEDERAL REPORTER.
York, in such dramatic performances as shall be given in said theater, also in such theater in cities in .the United States and Canada as said party of first part may direct for a season beginning October 8,1883, and ending :::laturday evening, May 3, 1884. It is understood and agreed that when said. party of second part shall play in any theater outside of New York, he shall have his name featured on all printing and advertisements. and be recognized as the stock star of said Fifth Avenue '£heater Company. Said party of second part agrees to furnish all his costumes and to pay his own fare and expenses to New York. Said party of first part agrees to pay railroad fares for party of second part, inclUding sleeping cars and transportation of luggage, should. party of second part be required to play hi any other theater outside of New York during this engagement. Said party of the second part agrees to report for rehearsal in New York, on or before Monday, Septem ber 24, 1883, and be in readiness to perform Monday, October 8, 1883. It is understoo<1 and agreed that seven performances each week shall constitute a week's business, but wherever it is customary in theaters to give more than that number, said party of second part shall give that number of representations. Said party of the first part shall have the selections of the plays to be presented at each entertainment, in which party of second part shall appear. Said party of first part agrees to pay party of second part the sum of one hundred dollars ($100) for each performance in which he shall appear, settlement to be made on the regular salary day of the theater. Said party of second part agrees that he will not perform in any theater in the United States or Canada till this contract shall. have been faithfully fulfilled. , HIn witness whereof, we have hereunto set our hands and seal. " JOHN STETSON. "CHARLESF. COGHLAN. [L. [L.
s.l
s.]
"It is further understood that said Stetson can continue this contract for six weeks by giving said Coghlan notice to that effect on or before March I, 1884. "
The plaintiff oame to this oountryin September, 1883, commenced acting at the Fifth Avenue Theater, New York, on the eighth of October,and oontinued until the tenth of November, a period of five weeks. On the evening of. the latter day, having discovered that his name was omitted from the play advertised for the ehsuing week, he called upon the defendant, and was informed that his services would not be required for an indefinite period. The plaintiff protested, and notified the defendant of his entire willingness to play, and that if he was compelled to remain idle through the defendant's neglect, he should insist upon being paid at the rate of $700 per week. The plaintiff was not permitted to play for three weeks. He demanded his salary for this period and was refused. Subsequently he appeared at Boston under the defendant's auspices. This action is to reoover $2,100,alleged to be due under the oontraot for the three weeks aforesaid, commencing Monday, November 12, 1883. It is argued that the plaintiff cannot recover for the reasons: First. He did not "appear" during the period aforesaid, and the de. fendant was not required by the oontract to permit him to appear. Second. Having subsequently aooepted payment at the rate of $100 for each performance in which. he appeared the plaintiff is estopped from claiming payment when he did not appear. Third. The de-
OOGHLAN V. STETSON.
729
fendant does not agree to employ the plaintiff, the agreement is by the plaintiff alone to render services for the defendant. Fourth. In any event, the complaint is defective, the action should have been for damages. The principal controversy arises upon the construction of the writ· ten contract and must be determined by that instrument alone. The interpretation contended for by the defendant is so harsh, so unfair, 80 wanting in reciprocity that the court should not hesitate to reject it provided the instrument is susceptible of any reasonable construction. According to the defendant no obligation rests upon him to do anything. The plaintiff, on the contrary, who, to use the langnage of the defendant's brief, is "an actor of fame and success in England," is required to leave his home and his profession there, cross the Atlantic at his own expense, pay his board in this country from September 24th till May 3d, and possibly for six weeks thereafter, furnish his own costumes, remain at the beck and call of the defendant for seven months, and refuse all other employment. To all this the plaintiff is bound, and the defendant is not bound at all. In other words the plaintiff must cross 3,000 miles of ocean, lose time, money and reputation, and if it suits the fancy or whim of the defendant to put some other actor in his place, he is wholly remediless, he cannot compel the payment of It single dollar. The charge that this interpretation is severe is not strenuously denied by the defendant, but he insists that the contract is one which the plaintiff was at liberty to make and having made it, he must abide the consequences. Undoubtedly, this is so. If the plaintiff made such It contract he cannot recover. But whether he made it or not is the precise question involved. If the language used clearly est!tblishes the defend. ant's version it would unquestionably be the duty of the court to enforce it. But where the exact meaning is in doubt, where the language used is contradictory and obscure, if there are two interpretations, one of which establishes a comparatively equitable contract and the other an unconscionable one, the former construction should prevail. In such cases the court may well assume that the parties do not intend that which is opposed alike to justice and to common sense. Unless the language is so definite and certain that no other interpretation can be upheld a construction should not be adopted which must inevitably cast a reflection upon the sanity of one of the contracting parties. The contract contains several clauses which read fleparate and apart from the context sustain the defendant's version, and they have . been pressed upon the attention of the court with much learning and ingenuity. But taken as an entirety, read as one instrument, read in the light of surrounding circumstances it must be said. that the plaintiff's construction is the true one. The contract provides, among other things, that the plaintiff is to be leading man in such dramatic performances as shall be given in the Fifth Avenue Theater
730 during the Bell.BOn of 1883-:84. . It .is then mutually agreed that . seven performances each week shall constitute a week's business. The plaintiff agrees to appear seve;u times a week and the defendant agrees that he will employ the plaintiff at least seven times a week. This provision is as binding on one of the parties as on the other, neither can avoid it. The defendant agrees to pay the plaintiff $100for each performance in which he shall appear. The clause italicised is the one upon which the defendant bases hi!! principal It is .possible that these words are unnecessary, that the contract would be·perf,ect without them, and yet, taken in conjunction with the stipulationastQ number of performances each week, there ia little difficulty in reconciling them with the other clauses. The contract would then read in substance: "The party of the first part agrees to pay the party of the second part the sum of one hundred dollars for each performance in which he shall appear, and it is understood and agreed that seven perf9rmances each week shall constitute a week's business." The plaintifi; shall be paid for the seven performances but for no more, unless he actually appears in more. The clause referred .to ,was also wise provision in case the plaintiff through sickness, or-otherwise, neglected to appear. I am unable to see bow the plaintiff waived any of his rights by his subsequent appearance at Boston. His action in that regard was entirely consistent with hiatheory of the contract. By accepting pay under the contraot, he did not accede to the defendant's interpretation to any greater extent than the .defendant acceded to his by paying the amount due. The objection that the defendant does not agree to employ the plaintiff has already been disposed of. If it were necessary, the law would imply an agreement to employ him during the stipulated period, the plaintiff having entered upon the discharge of his duties under the contract and rendered services for the defendant which were accepted by him. But there is here an express agreement. The contract is not unilateral. The one party agrees to act and the other agrees to pay. ' Regarding the objection disputing the plaintiff's right to maintain the action in its present form it is sufficient to say that upou the trial the plaintiff asked leave to amend the complaint so as to meet the criticisms of the defendant. This request should be granted. It is not the policy of modern procedure to defeat a party who has a meritorious oause of action because he has not declared in the right form, especially when all of the facts are disclosed and the opposite party not misled. The fault here pointed out is that the plaintiff seeks to recover a sum of money as wages which he should recover as damages. · The objection, though quite likely it is well founded, is a formal and technical one. Every element of surprise.is wanting. Had the com· plaint been in the form suggested the result would inevitably have been the same. . It is said that the defendant should be permitted to
FLETCHER V. NEW ORLEANS ot N. E. R. 00.
'131 , ,
>offer, in mitigation of damages, proof that the plaintiff could, have obtained an engagement elsewhere during the time he remrtined idle. The short answer is, that by the terms of hhe contract the plaintiff expressly bound himself "not to perform in any other theater." He could not have accepted a position under another management with<lut himself violating the contract. The amendment is with,in the {liscretion of the court and is one which clearly should be allowed; to withhold it would simply protract litigation withoutohange of result. The plaintiff is entitled to the judgment demanded in the complaint.
FLETCHER
and others
tI.
NEW
ORLEANS
& N. E. R. CO.l
(Oircuit Court, E. D. Loui8iana. February, 1884.) ARBITRATION.
Under a contract by which tlle defendant was to pay plaintiffs for work done upon certificates and estimates of defendant's chief engineer for the time being, the obligation of tile defendant does not practically arise until the defendant is satisfied that the plaintiffs are entitled to compensation; and it was hdd that the defendant may not avail itself of the labor performed by the plaintiffs. and then" wrongfully, arbitrarily, unreasonlibly, and in bad faith," stand upon the literal terms of the and· refuse to pay. '
On Demurrer. Thomas J. Semmes, J. Carroll Payne, Henry J. Leovy, and Ernest B. Kruttschmidt, for plaintiffs. Robert Matt and Walter D. Denegre, for defendant. P ARbEE, J. Under the terms of the contract sued on in this case, the defendant is to pay the plaintiffs for work done, upon oertificates and estimates of the defendant's ohief engineer for the time being. ."The chief engineer for the time being" is the oreature of the company. Practically, then, under the terms of the contract, the obligation of the defendant to pay the plaintiffs for work done does not arise until the defeudant is satisfied that the plaintiffs-are entitled to compensation. The question in this oase is whether the defendant, under its contract, may avail itself of the labor performed by plaintiffs, and then may "wrongfully, arbitrarily, unreasonably, and in bad faith" stand upon the literal terms of the oontract and refuse to pay. ThEl decisions are to the effect that, "in the absence of fraud, or such gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment, his (the umpire's) action in the premises is conclusive." 97 U. S. 402; Sweeney v. U. S. 3 Ct. Rep. 344. In this case "fraud" is not specifically,charged,but "bad faith" and "a failure to exercise an honest, judgment" are. And it seems to me, with the relation between the umpire and the defend1 Reported
by Joseph P. Hornor, Esq., of the New Orleans bar.