I dissent upon the ground that the evidence discloses without dispute that the plaintiff himself breached even the contract that he claims was made, by insisting upon being sole star in his characterization of “ Squire Rodney ” in the play of “ Hazel Kirke,” which had never been agreed to be done and which was impossible to accomplish because of the nature of the play and the character he was to assume therein. This demand he made by his telegram of August seventh. Even under his own version of the agreement, he was to be male star, but not the sole star, and this is made plain by his cross-examination. That he was not entitled to stand upon this demand to be sole star was admitted upon the trial, for when the defendant’s attorney asked the court to charge “ that if the jury find that Mr. Arden refused to perform unless he was figured as sole star, the Verdict should be for the defendant,” the plaintiff’s attorney consented to the charge and the court did so charge. ■ As Arden’s telegram of August seventh was a demand that he be the sole star, and as he refused to proceed with his contract when defendant declined to recognize him as sole star, under the court’s charge, defendant was entitled to the direction of a verdict. Furthermore, Arden never tendered his services under the contract, never reported for duty and did not seek to explain or excuse his failure so to report, nor did he ever render any services under the alleged contract.
Judgment and order affirmed, with costs.