Opinion
February Term, 1896.
Waldorf H. Phillips, for the appellant.
A.H. Hummel, for the respondent.
The contract required the defendant to produce the play in as proper a form as was consistent with the necessities of production in a first-class theater. He was under obligations to give the play a fair trial and do what he could to make it reasonably successful. If he failed to do this he violated the contract and rendered himself liable for the $5,000, even if the play in his hands did not prove to be reasonably successful. If the failure of the play to be successful was due to the defendant's own neglect of duty he should not be heard to allege such failure to defeat the plaintiff's right to recover the purchase price thereof. ( Gallagher v. Nichols, 60 N.Y. 438-448; Risley v. Smith, 64 id. 576.)
The play was produced only twice. Its success or failure could hardly be determined from so slight a trial. The success referred to in the contract was evidently such success as would put money in the defendant's pocket. The first two presentations of the play might not of themselves have been financially successful, but the play was evidently a good one and had real merit.
For the purpose of showing that the play would finally be a financial success, the plaintiff offered to prove how, on these two presentations, it was received by the audience, whether there was applause and how often, whether the actors were called before the curtain and how many times, and how the play was received by the people, as evidenced by newspaper and dramatic criticisms. Nothing of this kind would the court permit. It did appear that the defendant materially changed the play, that he struck out some parts of it entirely, and substituted his own material for other parts, that he did not properly commit his lines or study or act his own part, and that the rehearsals were hardly sufficient.
Nevertheless, the plaintiff desired to show that, even under these adverse circumstances, the play was so well received as to indicate that it would be a financial success. This was clearly proper evidence. It was for the jury to say whether the play was a success, or would have been but for the neglect of duty on the part of the defendant to properly prepare and present it on the two occasions when it was produced; or if he had not then abandoned the play and refused to continue its further production. The court excluded competent evidence offered by the plaintiff on this subject, and then dismissed his complaint for want of proof.
We think the judgment should be reversed and a new trial ordered, with costs to the appellant to abide event.
VAN BRUNT, P.J., BARRETT, RUMSEY and PATTERSON, JJ., concurred.
Judgment reversed and new trial ordered, with costs to the appellant to abide event.