Wheeler v. Woods , 120 N.Y.S. 80 ( 1909 )

GOFF, J.

The writing referred to as the contract of January 5th was relevant only to show the initial relations of the parties- and the compensation fixed for plaintiff’s services as an actor. About the expiration of the term of employment fixed by this contract, plaintiff spoke to defendant about a continuance of his employment. Defendant said:

“I want you to stay down there (Weber’s Theater, New York) as long as- ■ yon like.”

And plaintiff answered:

“Very, well, I will for four weeks either way for no reason whatever.”

And defendant replied:

“That’s all right as long as we do business.”

After the expiration of some weeks defendant requested plaintiff to 'go with the company and play for two weeks in Chicago. Plaintiff did so. For the first week he received his compensation. In the second week he participated in six performances, up to and including Wednesday night. After that the play was closed, and the company disbanded, for the reason that the authorities of Chicago refused permission for the removal of the scenery. Plaintiff demanded, and subsequently sued for, his full compensation for the week.

The question of plaintiff’s right to recover arises, not upon the written contract, nor upon the subsequent oral agreement to continue the performance, but upon the request of the defendant that the plaintiff go to Chicago and play there for two weeks. When defendant told plaintiff he wanted him to play at the theater in New York, and the plaintiff consented under certain conditions, that was not an obligation upon plaintiff to play in any other place than New York. The very conversation between the parties at the time demonstrated the unreasonableness of defendant’s contention. The plaintiff had his home in New York, and playing in Chicago necessarily would entail upon him extraordinary expense. The engagement to go to Chicago was a new and independent contract for two. weeks at a mutually understood compensation of $350 per week. The plaintiff performed his part for at least half of the week, and there was not even suggestion that he was not ready and competent to perform the remaining part. The failure to continue the play was in no sense attributable to him, but wholly rested upon the defendant’s management, and its fault should not be visited upon the plaintiff. When defendant engaged plaintiff to play in Chicago for two weeks, he impliedly engaged to provide a theater where the play could be presented. That was a condition precedent. It failed, and because of its failure defendant cannot avoid responsibility, on the well-established principle that one cannot avail himself of the nonperformance of a condition precedent who has himself occasioned its nonperformance.

The question of quantum meruit does not arise, for the defendant bound himself to pay a specific sum for á week’s work, and after the work had been partly performed the plaintiff was prevented from its continuance by the failure of the defendant to provide a theater. All disputed questions of fact were resolved in favor of plaintiff by the trial justice, and the judgment should be affirmed, with costs.

Judgment affirmed, with costs. All concur.