FOSTER'll. BALLENBERG.
821
case to decide. See The Alaska, 35 Fed. Rep. 555, 557. In this case the consent is not denied but admitted. It is expressly stated in the agreed statement of facts that the "cause and the errors alleged were submitted" to Judge PHILLIPS "on motion of plaintiff in error, and with the consent of the United States of Ainerioa." Let the judgment of Judge PHILLIPS in the case be entered of record as of the date it was made.
FOSTER
et al.
t1. BALLENBERG <
et al. . . .. '",., ,
(C.r,rcuit Court, S. D;OhW, W. D. October 29, 1890;) IJrJUNCTION-WHEN -GRANTED..
,
A preliminary injunction will not be granted to compel'the lessees ,of' an opera-, houSe to allow the, complainants to use the house in a6cordance with· 8 'contract· therefor, ,where such injunction would compel the lessees to bl'/3ak II! ,l:!imilar tract' made by them with an innocent third party, apd the complainants cannot use the house with profit tothemaelves. ' I
..
In Equity. On motion for preliminary injunction. Ilamsey, Maxwell Ramsey, for complainants. Rankin D. Jones, for defendants.
i
SAGE, J., (oraUy.) The bill was filed yesterday, and motion, for a preliminary injunction argued. The complainants aver that on the day of August, 1890, they entered into a contract in, writing with the defendant Louis Ba1lenberg, who signed itby the hand ofPaulF. Nich-, olson, ap;ent, imd who, although Cflntracting in his own name, '\VB.S act-. ing for, himself and his co-defendant, Powell Crosley, whereby it was agreed ,that the complainants, being proprie,tors and managers of an opcompany known as the "Boston Ideal Opera Company," should, on November 3, 1890, begin the rendition of the opera of "J.i'll.uvette" in, the hall of the opera-house'in Cincinnati known, as" Pike's Opera-aouse," of whiCll'the defendants Crosley and Ballenberg were in possession as lessees or otherwise, having full control thereof, and power to let the, .same for the pilrposes contemplated by the said contract. The bill avers - that by the of the contract said performances. should begin on the 3d day of Noveniber, 1890, and continue until Saturday, NqveDlber 8, inclusive; there being one performance each day, and one matinee.' After setting forth the details of the contract, which provided, among -other things,that the complainants should receive 70 per centum and. defendants 30 per centum of the gross proceedsof said performances,] the complainl;lnta aver that said opera-house has not for several years. been used as an opera-house or theater, that it was being remodeled and refitted, and that it was to be reopened as an opera-house on,the: ,date .aforesaid, of said first performance, and that it was in ,the, 'rendition of the opera of by the c,Qmplain-' .ap.m, .-,WIth theIr '.. . .... .. ;.:" company, should be th,e fir$,tperformance t.opllgiven, . ... .' .. · u
'a
.'.-
'
",'
'.
-'
.
. '
822
FEDERAL REPORTER,voI.
43.
in said opera-bouse up<>{l its reopening; It is ,further averred that an important advantage attaches to the company enjoying the privilege 'of. opening a new house, for the reason that public attention is much attracted to an event of ,that character,and the housas are better filled upon such occasions than at 'other times; and, that" in view of this advantage, the complainants consented to a smaller proportion of the gros& proceeds than they otherwise would have been willine;to accept. It is further a\ erred that, notwithstanding the premises, the defendants have announced their purpose to break tbesaic! engagement, and have already advertised a performance to be given by another company, beginning on the 3d of November, and to continue throughout that week, and that defendants now refuseto'alldw the complainants to perform their said contract, and have so notifl,ed com pli1inantEl, and threa,ten to exclude them and their company from said opera-house at the dates named. It is further averredtpat ,the Boston Ideal Company enjoys a high reputation, and' therefusnl of the defendants to allow the said performance will be anirrejJarableinjury to, the complainants and to said coilipany.' The prayer of the bill is that the defendants may be enjoined from permitting the use of said opera-house during the period aforesaid by any other person or persons,' any other performance to be given therein, and that they be enjoined from refusing-to allow complainants to give said performance of said opera, in pursuance or the terms of said contract, and that they be, required to do and perform all things required of them under said as therein set forth. As an alternatiV.e prayer, the' complaiuants pray that, if the 'court shaJl be of opinidrl that it is not lible,'ac¢Ol'ding to the courseo! equity proceedings, to order ,thedefendllilts to Comply specifibally with the detaUsof said contract, the court shall order that thecomplainallts may take po&session of the opera-hotlse,and' furnish all things which, under said ?ontract, the defendants were'to furnish, and that upon final hearing the court shall ?ecree that the'defendants shall pay the expenses thereof, and for alUtber necessary and properrelief. .' , I have given to the exam,ination of this calle such eilre and attrntion as has been possible hi the short time afforded me. It appears from'the affidavits upon file that the defendant Ballenberg was; at the date of the con.ract set forth in theb'ill, in the employ of the'defendant Crosley, but that he had no whntevEr in the lease of the opera-house. It appears from the affidaVits of Bidlenberg and of Crosleythat Ballenberg had in fact no authority 'make contra61;s for the services of theatrical or operatic troupes. B'e-was:authdrized tel receive propositions, and communicate'tl1eili to 'no contract was to 'be' n'lade without the expressapptovalofCrosley.' It is not claimed thlitthe contract in this, case was so approved, arid it is claimed that it must fall, so far as Crosley is cohcerned, because not within the authdrity conferred upon Ballt:'nberg. Upon thispoiht, it set:'ms to:me that teror opera.. the' position of a general agent, and therefore that a speciallimitationofhis authority not communicated to or known by the, manager:ol a troupe with which he in factn-takes: a contract in the i
Mr.'.
FOSTER II. BALLENBERG.
823
on behalf of his principal, or 8S manager,w()uld not render .th"Elcontract invalid, it being within the general scope ofhis authority as O1anager. :aut the contract in this case, which is attached to the affidavit of the complainant Foster, is, in terms, with Louis Ballenberg individually. Moreover, the bill makes Ballenberg a defendant as a prinin joint possession of the opera-house with Crosley, as co-lessee, or otberwise. It is sigped, "Louis Ba.l1enberg, per Paul F. Nicholson, Agent." It appears affirmatively by the affidavit or Crosley that he never consented to or recognized the contract, nor did he even know ofituntii after the controversy upon which this litigation is founded arose. Now, ",bile it is true that an undisclosed principal may be held to the perof a contract made by his agent in. his own name, I. am strongly . to the opinion· that that can only be done by showing that the eftec\ltioJl. ,of the contraot was within the actual authority of the agent, inasumcha,.s.in such case the contract was made with.the,agent as prin.cipal, anq must be presumed to have been made relying on him alone, agency. and not upon the authority implied from the scope ora :But! am not disposed to put the decision of this case upon that ground, to enter upon. the consideration of the controverted of fact respectiQg .the condition of the Boston Ideal Opera Company., 3nd its; qualifications to render the opera in style requisite for succe,ssful performances. It is claimed on behalf of the defendants that,' by reasonofa change of conductors, and the retirement.fr()m the- troupe ofcertain leading singers and of members of the chorus, thetrQupe so;weakened as not t,Q, be, in condition to give performances ,that would draw paying houses. It is true that.it is not claimed that these are anything. more, than temporary, but it is insisted that they,t:U:6 of so recent date t9at the troupe could not be restored to its fOf these performances. On the other band, own proper standarq it is insisted that the defendants are bound by the contract to accept the services of the troupe, even if the complaints made were well founded in fact, which they deny. I do not agreeqto this proposition. I think such a contract calls for a full troupe, up to its ordinary standard, just as the contract for the services of a physician is a contract for the exercise, not only of the ordinary-skill of the profeSSIon, but of the skill which he possesses, although he may be rar above the average. But if the contract is for the services ofatroupe,it cannot be avoided by averring that the performances of the troupe are not up to the standard of excellence recognized as necessary at the theater where thellervices were to be, rendered. The person troupe is bound, in the absenCe of misrepresentation or fraud, to- accept its performances if they .are up to its own standard. The affidavits as to the condition of the, compla1ua.ntB' troupe are conflicting. It is denied on their behalf that any changes. ha"e' been made exceptinK for thehetter, and. it is claimed that, as to tbeconductor, the leading slngers, and the chorus, the troupe is as goodas'itever'· has, been, if not . I shall· not undertake .tosettle thedisp,\lteupon this feature of the case; It SE'iems tome that other to.:;..;Whieh .I shall now . : ;,;. 'advert, aredecisiv:e;. :"<.' : . ,::,:, ' ': I" '''; ,'."" ·
'<
824
, It appearS as an undisputed fact that the defendahtCrosley has engaged another troupe for the time covered by the contract under which the complainants make their claim. It is not pretended that that other troupe has had any knowledge or notice of the facts of this controversy. They are advertised, and their bills are posted throughout the city. The theater is to be opened five days from this time. It appears, also, from the affidavits submitted on behalf of the defendants, that no scenery has been prepared suitable for the operas which the complainants desire to produce, and that it cannot be prepared in time for performances next week. The complainants are asking tbe court to compel the defendants to break off this last engagement, and inflict the same kind of injury upon the other troupe that they complain of in their own case. It seems to me that the result would be almost necessarily disastrous to all parties. The theatrical troupe would be thrown out of a week's engagemflnt tqo Iale to make anyothet engagement, and the comI>lainants would be without the time necessary to so advertise their performances as to secure paying audiences; and,inasmuch.as by the terms of their contract they are ro.paytheir own expenses, which it is stated are $3;000 per week, it is at least doubtful whether they would not lose money, instead of profiting, by their The granting of a temporary injunction' is within the discretion of the court. It has been held that where it will I the complainants little good and 'the defendants'much harm it will not be·gr4nted, and where it will injure the defendants more than it will complainants it will not be granted. I am satisfied that this benefit is aoase which falls within these rulings, and I therefore overrule the motion for a preliminary injunction. I suppose that this practically disposes Of the case, and that the bill might as well be dismissedj but, as couDsel for the complainants is not present, I Will not now make an order to that effect.
·
FEDERAL REPORTER.
vol. 43.
do
; OSBORNEet ,
or. t7. WISCONSIN CENT. R. Co. September 15, 1890.)
(Oircuit Oourt,W. D. Wiscon8i:n. IilrroNOTJON-MULTIPLIOJTT OP SUITS. r
·,The plaintitfs, respectively, are in the pOSlies&ion, and claim to be the owners, ot laws ot the United States. These lands are all claimed by the Wisconsin Central Railroad Company, aa, part of its place lands as defined by an act of congress passed in 1864. The cornpanybas heretotore brought sepa;ate actions otejectment against three of , the plaintitfs, and Nevertheless, it threatened to bring action!; of eJectment against each ot the,other·plaintitfs as weH as actions of trespass for in l1utting timber. unless they voluntarily surrendered possession of the lands respectively held· by them. The dispute between the railroad companyan<i ,.reach of the,plaintitfs depends upon precisely the same questions of law; and upon the s8D)s facts, The plaintitfs have a common source of title, ,and the clahn of the Cllmpany is good or bad against all. as it rnay be good or bad against any one.; ,ot ttm;Pla"intitfs" B,eld,tbat, in ord,er to, ,aVOid m"U.,itiP,UU(lllty.,. Of, ac,t,ions, the may bedeterrnined in a suit, in equity, in, the holclers of the 4iflerent tracts may ·uniteas plall:ltltfs; the case belong1ng to the class "where
tractls ,ot land acquired ,by them under the homestead and
