[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 354 This case illustrates the facility with which a simple case, which ought to be definitely disposed of in a single *Page 355 trial, can be transformed into an apparently complex controversy by the violation of the most elementary rules of evidence. The case is full of objections and exceptions which seem to have served no purpose except the obscuration of the one issue at stake. As the greater number of these objections were interposed by defendant's counsel, and resulted in rulings which were adverse to the respondents, we should be disposed to affirm the judgment but for one fundamental error in the charge of the learned trial court, to which the counsel for the defendant duly excepted. The bearing of this charge upon the issue presented by the pleadings, can be best emphasized by a short statement of the pleadings and an outline of the general course of the trial.
The complaint alleged the execution of the contract between the parties; plaintiffs' part performance thereof and willingness to complete; defendant's wrongful discharge of the plaintiffs and its unjustifiable refusal to permit completion. The answer denied performance on the part of the plaintiffs; denied the alleged breach thereof by the defendant; and affirmatively set forth a breach by the plaintiffs in that the plaintiff Henrietta Lee Morrison refused to obey the reasonable and proper instructions and regulations of the defendant to wear a certain designated and specified costume in the performance of the role or part for which she had been engaged. In connection with the pleadings it is important to remember that the contract bound the plaintiffs to furnish "at their own expense, all necessary costumes, wigs, shoes, boots, tights, stockings and gloves, in and about their performances," and to "pay strict regard to make-up in the dressing of characters," and to "abide by and conform to all rules and regulations" of the defendant "now made or hereafter to be made." These excerpts from the contract clearly demonstrate two things: 1. That although the contract was in writing, it contemplated rules and regulations thereafter to be formulated by the defendant and carried out by the plaintiffs, in so far as they were reasonable and necessary. 2. That in the matter of costumes, the plaintiffs were to furnish at their own expense *Page 356 any or all of the enumerated articles that were necessary. The bare statement of these propositions makes it plain that the issue was whether the plaintiffs had conformed to the regulations of the defendant, or if not, whether the regulations not complied with were unreasonable or unnecessary. The determination of those questions, of course, decides the question whether the defendant's dismissal of the plaintiffs was wrongful or justifiable.
Counsel for the plaintiffs, evidently intent upon pursuing that theory of the case, sought to show what conversations and transactions had transpired between the parties after the execution of the written contract, but was met at every turn by the objections of the defendant's counsel, which were sustained by the court. The result was that, more by accident than design, the plaintiffs were permitted to prove merely that the defendant submitted to the plaintiff Mrs. Morrison a plate or drawing indicating the costume which the latter was to wear in the second act of the play for which she was cast. This costume she objected to, and at her suggestion it was so modified as to be acceptable to both parties. The record discloses that the plaintiffs continued to perform the parts assigned to them until November, 1905, when the company or troupe of which they were members were about to be sent to New York city for a series of performances. Then the plaintiff was served with the notice requiring her to exchange the costume which she had been wearing in the second act of "Me, Him and I" for a "military costume." That was a costume in "tights" without skirts. Although the objections of defendant's counsel and the rulings of the court had precluded the plaintiffs from giving Mrs. Morrison's version of the conversations with the officers of the defendant, the manager of the latter was permitted to testify for the defense that in a conversation between him and Mrs. Morrison she said that the proposed costume was insulting, and that she would not wear tights. Had this peculiar trend of the trial been carried to its logical end the complaint would have been dismissed, because the only definite testimony bearing upon the negotiations *Page 357 between the parties subsequent to the execution of the contract was that given by the defendant's manager, and that placed Mrs. Morrison in the attitude of objecting to the costume upon a ground as to which she had not been permitted to testify. The complaint was not dismissed, but the mistrial was completed by the trial court's erroneous construction of the contract which was submitted to the jury as the law of the case. In that behalf the jury were instructed as follows: "Now I have construed the contract in the case to mean that the defendants were entitled to require this lady to wear this particular costume. I also construe the contract to mean, which is the law in this case for you, that where the parties had once agreed upon a costume for a particular part in a particular play, and that costume had been procured by this lady, that then she had fulfilled her part of the contract, so far as the costume for that particular play and part were concerned; and the defendant could not afterwards require her to procure at her expense another costume." And again the court said: "Now I charge you that having once agreed on the costumes, and having once procured them for that particular play and that particular part, her obligation was at an end, and she was not required, even if the defendant directed her so to do, to procure at her expense another costume." To these instructions the defendant's counsel excepted. This exception to the charge is fatal to the judgment. The learned trial court clearly misinterpreted the contract. It expressly provides that the plaintiffs shall furnish all necessary costumes at their own expense. Whether the particular costume which the plaintiff Mrs. Morrison refused to wear was necessary, depended upon facts and circumstances to be considered in the light of the other stipulations, reasonably construed, binding the plaintiffs to conformity with "all rules and regulations of the party of the first part now made or hereafter to be made" and requiring them to "pay strict regard to make-up in the dressing of characters." It was error to assume that the conversations upon this subject between the parties were inadmissible as tending to vary or contradict the written contract, *Page 358 for the instrument contemplated future discussion and negotiation between the parties upon the subject of costumes. Neither party had the right to arbitrarily decide what costumes should be necessary. That was a question to be decided in view of the character of the contract, the parts to be played by the plaintiffs, and such reasonable regulations as the defendant had the right to impose for the purpose of making the production acceptable to the public or financially profitable. If the regulation as to costume, sought to be imposed upon the plaintiffs by the defendant, was reasonable under all the circumstances, the plaintiffs were bound to comply with it at their own expense. If it was unreasonable and arbitrary they were under no obligation to comply with it, even though they were put to no expense. That is the theory upon which the case should have been submitted to the jury, upon all the evidence fairly addressed to the issue, and the departure from that theory constitutes error which we cannot ignore.
The judgment should be reversed and a new trial granted, with costs to abide the event.