The finding shows the following facts: —
In March, 1891, the plaintiffs, who were theatrical and dramatic agents, doing business in the city of New York, and the defendants, who desired to form and manage an opera company, entered into a contract by the terms of which the plaintiffs agreed to procure suitable people to take the various parts in a certain opera for the defendants, and the defendants agreed to pay the plaintiffs their commissions, in one sum, before the opera company should leave the city of New York to go upon its route.
The plaintiffs performed their part of the contract to the satisfaction of the defendants, and demanded payment. The defendants promised to pay the sum demanded by the plaintiffs, but requested an extension of time until the night of the first performance of their company in the city of New Haven, and also requested the plaintiffs to go to New Haven upon that night to receive their payment of this and another claim. The plaintiffs assented, and afterwards, on the day appointed by the defendants, went to New Haven to receive their pay. At that time it was evident that the opera would not prove a success. The defendants then refused to pay the plaintiffs' claim and have never paid it.
The commissions of theatrical agents are usually paid by the actors directly, or by them indirectly through the manager of the theatrical company, in weekly installments proportioned to the number of weeks stipulated for in the engagements, but this matter is always a subject of contract between the interested parties, and such contracts are entered into as are satisfactory to them.
When the defendants applied to the plaintiffs for theatrical people, and before the contract in question was entered into, the plaintiffs, because the defendants were comparatively inexperienced and unknown in the business, stated to the defendants that they should require them to *Page 55 pay the theatrical people whom they should procure for them two weeks' salary in advance when the actors should be accepted by the defendants, so that the plaintiffs might secure their commissions; the payments to be made in the plaintiffs' office.
The defendants, representing that they had great wealth, offered, if the plaintiffs would forego this requirement, to pay the commissions in one sum before the opera company should leave New York city to go upon its proposed route, they taking upon themselves the responsibility and risk of collecting from the actors at their own convenience or as they could agree with them. The plaintiffs accepted the proposition, and they and the defendants entered into the contract stated in paragraph one.
The defendants paid the actors their first week's salary in the office of the plaintiffs, but the latter did not attempt to collect their commissions or any part thereof from the actors, as they might have done but for the contract with the defendants. Nevertheless, three of the actors insisted upon paying to the plaintiffs their respective portions of the latter's commissions, and the plaintiffs received the sums offered, and deducted the same from the amount of the claim against the defendants.
As the plaintiffs were to be paid by the defendants in one sum, the latter requested the plaintiffs to have each actor make a draft upon the defendants for the sum which the defendants were to collect from each respectively, and to turn over the drafts to the defendants at the time when the latter should pay the plaintiffs according to their agreement. The drafts were drawn from time to time as the actors were engaged by the defendants, were made for the convenience of the latter, were all drawn after the contract between the plaintiffs and the defendants had been entered into, were never presented to the defendants for their acceptance, and as between the plaintiffs and the defendants were understood to be the property of the latter, to be used as they should be able to use them in their dealings with their actors respectively. The drafts are still in the possession of *Page 56 the plaintiffs. There is now due the plaintiffs from the defendants the sum of $66.25 under the contract.
Upon these facts the defendants claimed that they were not liable for these commissions in this action, but that the actors were alone liable, and that the contract, if any, was within the statute of frauds, and that no action thereon could be maintained, it not being in writing.
The court overruled these claims and rendered judgment for the plaintiffs. The defendants appealed.
The first question presented is, whether the contract between the plaintiffs and the defendants is within the statute of frauds.
The record discloses no contract between the actors or any one of them and the plaintiffs. Had they been employed according to the usual course of that business, there would undoubtedly have been at least an implied promise by each actor to pay to the plaintiffs a commission. Had the contract of the defendants been an undertaking that such a promise should be performed, it would clearly have been within the statute. But the difficulty with the defendants' contention is, that when they contracted with the plaintiffs there was no existing contract with any one of the several people afterwards employed to serve the defendants. And when they were so employed they made no promise to pay the plaintiffs directly, but did agree with the defendants that they might "deduct five per cent each week commission from salary, and remit the same to Milliken Cortiss." Consistently with that the plaintiffs made no effort to collect from the salaries paid in their office, but relied entirely upon their contract with the defendants. It was then an original contract by the defendants, upon the strength of which the plaintiffs performed the service required of them, giving credit alone to the defendants. There is no room then for the claim that it was collateral to an undertaking of each of the several actors, for no such undertaking then, nor even afterwards, existed. The contract then was not within the statute.
The only other question made is that relating to costs. *Page 57 After the case came to the Court of Common Pleas the plaintiffs were nonsuited for not furnishing bonds for prosecution as ordered by the court. Afterwards, on motion of the plaintiffs, the nonsuit was set aside, and the case restored to the docket on the payment of costs. Upon the final trial the plaintiffs recovered a judgment, and the court taxed in their favor full costs from the commencement of the suit.
It is well settled that a party can recover no costs for the time during which he has paid costs. Richardson v.Hine, 43 Conn., 203; Meloney v. Somers,50 Conn., 520.
The order was not limited as to time, as it might have been. The import of it therefore is that costs were required from the beginning. The defendants had a judgment of nonsuit, which was a final judgment, and costs were taxed, and the costs so taxed were paid by the plaintiffs. That portion of the costs accruing before the nonsuit was improperly taxed.
We are inclined to think however that an exception may well be made of the writ and service. We think the practice has been, in such cases, to allow the plaintiff those items.
There is error only in the matter of taxing costs. The judgment is reversed, unless the plaintiffs will remit the costs improperly taxed, that is $5.45.
In this opinion the other judges concurred.