I am unable to agree to the reversal of this judgment. The plaintiffs are husband and wife, and were engaged, as the written contract between them and the defendant corporation states, in performances that were special, unique and extraordinary in character. The contract bound them to appear for two seasons under the management of the defendant, a corporation engaged in the production of musical comedies and other plays.
The plaintiff, Mrs. Morrison, appeared upon the stage under her maiden name of Henrietta Lee; she was accorded the privileges of a star performer. The written contract is very general as to the details of costumes. The plaintiffs were obligated "to pay strict regard to make-up in the dressing of characters," and further agreed "to furnish at their own expense all necessary costumes, wigs, shoes, boots, tights, stockings and gloves in and about their performances." Also agreed "to perform in any parts which they or either of them may be cast for." *Page 359
This case seems to have been tried upon the theory that this written contract was sufficient in its terms and provisions to guide the respective parties and render unnecessary any resort to further consultation and discussion of details. Notwithstanding the plaintiffs succeeded before a jury in recovering a very substantial verdict, the record discloses that the trial judge, in many of his rulings against the plaintiffs, manifestly committed legal error, which is of course immaterial at this time, except as illustrating the character of the contract.
The counsel for the plaintiffs succeeded in showing without objection, that Hurtig, the president of the defendant corporation, did discuss with Miss Lee the question of costumes, and that she in pursuance thereof purchased four costumes at an expense of five hundred dollars in preparation for appearances in the character of "America" in the piece entitled "Me, Him and I."
The drawing of the first costume furnished to Miss Lee by the defendant had a skirt that came down to the knees, and on her criticism that it was too short, the defendant furnished her with a drawing of a skirt that came down to about the boot tops. It appears that in this costume as thus changed she commenced to play in the piece "Me, Him and I" on August 16th, 1905, with the full knowledge and consent of the defendant until November 29th, 1905, when the discussion as to costumes was reopened by the defendant company sending a communication in writing to Miss Lee, reading as follows:
"DEAR MADAME. — In the finale of the second act we have decided that you shall appear in military costume. We send you herewith a sketch of the costume desired, as the one you are now wearing does not have the correct effect, and we wish you to have it ready when the show opens at the American Theatre. Kindly let us know as soon as you have the costume in readiness so we can look it over.
*Page 360"Yours very truly, "HURTIG SEAMON."
This letter was accompanied by a plate showing a costume consisting merely of a helmet and a short trunk or bodice at the loins and without skirt, leaving the body, encased in tights, entirely exposed. After receiving this letter Miss Lee sought on a number of occasions to have an interview with Hurtig, but was unsuccessful, and some time after a notice of discharge was served on the plaintiffs on the ground that they had broken their contract by Miss Lee not appearing in costume presented. It thus appears that the breach of contract upon which the defendant relies is the failure of Miss Lee to procure the costume last referred to, and notify the defendant when she had it in her possession so that they might "look it over." It is quite apparent that this last sketch submitted to Miss Lee was intended to bring about a breach of the contract. Hurtig had already learned from Miss Lee that she was unwilling to appear in public even where the skirt came only to the knees, and he had assented as president of the defendant to a modified costume where the skirt came to the boot tops. Without any further negotiations he sent her a sketch which she described as an insult — a sketch that was without skirt — practically a costume entirely in tights, and one which she as a modest woman was unwilling to wear in public performances. It seems to me that no other construction is possible under the circumstances. Hurtig was well aware that she would not accept this costume and would surely consider the sending of it to her as an insult.
The contract had long before been practically construed by the parties, and the defendant had by acts conceded that Miss Lee's unwillingness to wear the objectionable costume should be respected. The manner in which the defendant sought to terminate the contract at the end of the first year's employment was disingenuous and unwarranted.
It is quite true that the plaintiffs' counsel put in his case under adverse circumstances owing to many rulings of the trial judge that would have proved fatal to a verdict in favor of the defendant *Page 361
It is insisted that this judgment for the plaintiffs must be reversed by reason of two errors of the trial judge in charging the jury. The first alleged error is based upon the following portion of the charge: "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 own expense another costume."
The substance of this charge is that the defendant, while entitled to require Miss Lee to wear the objectionable costume originally, could not do so after a costume had been selected for the particular play and part. Conceding that this construction of the charge was erroneous, nevertheless it worked no injury to the defendant in view of the practical construction of the contract, to which reference has already been made, that defendant had agreed to the lengthening of the skirt from the knee to the boot top. If any one was injured by the charge it was the plaintiffs.
The second alleged error is based upon the following part of the charge: "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 that she was not required, even if the defendant directed her so to do, to procure at her expense another costume." It will be observed that this is repetitious and, in substance, like the portion of the charge already quoted.
Mr. Cohn, the manager of the defendant, testified as a witness for the defendant that he had an interview with Mrs. Morrison (Miss Lee) after the delivery to her of the letter sent by defendant containing a sketch of the objectionable costume. He was asked this question: "Q. Please state as nearly as *Page 362 you can what she said, the best memory you have? A. Mrs. Morrison said to the effect that it was insulting and that she wouldn't wear tights. * * * Q. Did she at any time say anything about the cost of this costume? A. No, sir. * * * I don't think I had any further conversation with Mrs. Morrison; it was an understood fact that she wouldn't wear tights."
It is argued that as the written contract provided that Miss Lee was to wear "all necessary costumes," that the foregoing portions of the charge are fatal to the judgment. That would be so if the parties stood on the written contract, but they did not. As already pointed out, they have given the contract a practical construction by discussing the first costume adopted and altering the skirt to meet Miss Lee's criticism.
It is said that this affirmance was by a divided court. This is an error; neither the order nor the judgment shows affirmance by a divided court.
The judgment and order appealed from should be affirmed, with costs.
CULLEN, Ch. J., GRAY, WILLARD BARTLETT and HISCOCK, JJ., concur with WERNER, J.; CHASE, J., concurs with EDWARD T. BARTLETT, J.
Judgment reversed, etc.