#### Henry E. Dixey, Respondent, *v.*A. H. Woods Productions Company, Appellant.

First Department,

June 18, 1915.

Contract — agreement employing actor to enact specific role — provision that payment is only to be made for services rendered — when contract mutual and binding upon both parties—breach of refusal to allow actor to perform.

A contract between an actor and theatrical managers, whereby the former was engaged by the latter to enact a leading role in a certain play for a certain number of weeks at a stated compensation per week, including rehearsals, which recites that the actor’s services are unique and extraordinary, and that he shall not during said period act for other managers, constitutes a mutual binding agreement between the parties for the period stated, even though it states that the actor is to receive no compensation “for performances in which he does not actually render services, or for non-playing nights during the term of this contract, which occur because of accident, or his sickness, public calamity, or from the act of God or the public enemy,” and the salary was only payable “when services are rendered.”

Hence, where the managers, against the protest of the actor, refused to allow him to act the role originally assigned to him, and substituted another person in his place, there is a breach of the contract, and he may recover the amount he would have earned under the contract had he been allowed to perform, if at all times he held himself ready and willing to do so.

In view of the terms of the whole contract, the provision that the actor was to be paid only when services were rendered, did not permit the managers arbitrarily to refuse to allow him to perform and to terminate the contract at will, upon the theory that furnishing of employment was optional with them.

As the contract stated that the parties thereto “ agree ” to its terms, that word itself creates mutual obligations, binding upon both parties.

*338Appeal by the defendant, A. H. Woods Productions Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of December, 1914, upon the verdict of a jury, and also from an order entered in said- clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

*William N. Cohen,*for the appellant.

*Samuel H. Wandell,*for the respondent.

Dowling, J.:

Plaintiff and defendant on June 29, 1911, entered into a contract in writing whereby the former was to render services for the latter as an actor, supporting Marguerita Sylva in a play called “ Gypsy Love” from the opening date, which was to be about October 1, 1911, to, or about, December 16, 1911, at a' weekly salary of $600, and thereafter, and on or about December 23, 1911, defendant was to star plaintiff in a play called “ The Greyhound ” (provided the play proved satisfactory to the managers), and pay him for his services ten per cent of the gross weekly receipts, guaranteeing that his share should not be less than $600 per week. Both of these promises to pay were followed by the words “when services are rendered.” Plaintiff rehearsed his part in “Gypsy Love ” for four weeks, during which time, pursuant to the terms of the contract, he received no salary. The production opened at the Forrest Theatre, in Philadelphia, on October 2, 1911. Woods, president of defendant, was present thereat, and according to plaintiff told him that he (plaintiff) did not have a very good part in the piece, and that Woods had brought on another man, one McDonough, whom he proposed to put in the part, as he did not think it was good enough for Dixey to appear in in New York; that he could get McDonough much cheaper and would rather pay Dixey while he was lying idle awaiting the production of “The Greyhound.” Woods expressed his fear that Dixey’s appearance in “ Gypsy Love ” might hurt his professional standing and injure his availability from a business standpoint, to which Dixey replied that he was ready *339and willing to play his part in “Gypsy Love” and did not care about the consequences, and Woods replied, “No, I am going to put this man into the rehearsal.” McDonough then began to rehearse the part and did so continuously until he was assigned to take Dixey’s place regularly, beginning with the Wednesday matinee of the second week of the play’s run. Dixey, who was well acquainted with McDonough, was in the latter’s dressing room, giving him instructions as to his costumes, when Woods entered, and saying that Miss Sylva was ill and both stars could not he out of the play together, told Dixey to go on for the matinee, which he did. McDonough made his first appearance at the evening performance, continuously taking Dixey’s part thereafter. Dixey remained in Philadelphia until the end of the week, and on Saturday had a conversation with Woods, in which the former said he was willing to remain idle, provided his salary for the remaining eleven weeks was paid preceding the opening of “ The Greyhound,” and the later said “that would be all right.” But when Dixey asked for his salary that evening, the cashier said there were no salaries to be paid and he would see him in New York, hut finally let him have $200. When, after many efforts, Dixey succeeded in seeing Woods in New York, the latter said it was “all a mistake,” and requested him to call again, when he told Dixey that since his last talk with him the courts had decided that an actor could not get any salary while he was lying idle, and, therefore, he refused to pay him. Dixey worked, in all, one whole week and part of the second (down to and including the Wednesday matinee). He remained idle throughout the remainder of the eleven weeks for which he was employed to play in “Gypsy Love.” He was present at the Forrest Theatre every night during the balance of the week in Philadelphia, and when the play came to New York reported at the Globe Theatre to Slocum, defendant’s representative, and was there every night while the show was playing. His total compensation under the “ Gypsy Love ” contract was to be $6,600, and he had been paid $1,300 in all by defendant, leaving a balance of $5,300, which with interest amounted to $6,254, for which sum the jury found in his favor. It appears that defendant never finally was satisfied with *340“ The Greyhound,” and did not in fact produce it, so that plaintiff made no claim for any salary under the second part of the contract, by which he was to be starred therein. Defendant sought to show by the testimony of Woods, its president, that Dixey had come to him after the opening of the play in Philadelphia and told him he had decided he would not open in New York with the play, because the part he had was a very bad one and the critics there would *“*crucify” him; that Woods *“*begged ” him to play in New York but he persisted in his refusal, deeming the part he was playing so poor that it would in j ure him to be seen in it there. W oods testified that the salary paid to McDonough was either $150 or $200, and that he had communicated with McDonough about playing the part after Dixey told him he would not open in New York and that he had better get another man. He entirely denied Dixey’s version of what occurred between them at their various interviews, and so far from discharging Dixey, claimed that even after McDonough was playing the part, he and Dixey saw the performance together and he told Dixey he thought McDonough was very bad and he would like to have Dixey open in New York, when Dixey again refused. At the close of his direct examination he said that he told Dixey to report every night at the New York theatre. Woods is sought to be corroborated by William S. Levine and Jacob J. Rosenthal, both connected with the *“*Gypsy Love ” company. In rebuttal Dixey absolutely denied all their testimony as to his refusal to play in New York and as to Woods’ insistence on his appearance there. The verdict of the jury that defendant and not plaintiff had breached the contract we deem fully warranted by the evidence, which justified the finding that defendant had discharged the plaintiff without reason or cause and refused to permit him to render the services he had agreed and was ready and willing to perform. Defendant, however, claims that no cause of action was established by plaintiff because he was to be paid only for services rendered, and that, although defendant by discharging him and refusing to allow him to continue to act in his part prevented him from rendering any services, it cannot be held to any liability therefor. We think that this is putting upon the contract in question a strained, unwarranted and unnatural *341construction, and one which would work grievous injustice. The contract, so far as it is material to the question under discussion, recited that:

“Whereas, the said Managers are engaged in the theatrical business as managers and producers, and are desirous of employing the said Artist, for the time and upon the terms hereinafter contained, and Whereas, the said Artist possesses unique, special and extraordinary qualities as an actor, and is desirous of being employed by and appearing under the management of the said Managers for the time and upon the terms and conditions herein contained,” the parties thereto agree,

*“First,*(a) That the said Artist is hereby especially engaged and employed by the said Managers to support Marguerita Sylva in the play entitled Gypsy Love,’ from the opening of said attraction, which will be about October first, 1911,— toon or about December 16th, 1911, at a salary of Six hundred ($600) Dollars per week, for each and every week when services are rendered. Said Artist to be advertised as being especially engaged for Gypsy Love ’ on all advertising matter. * * *

“ *Second,*(a) Said Artist does hereby agree to become engaged and employed by said Managers, and to render services to the best of his skill and ability for the number of performances each week as shall be in accordance with the legal custom of all places of amusement in the various cities in which said Artist is directed to appear, and at such theatres, opera houses, and other places of amusement in the United States and Ganada, as may be required by said Managers, and to play the role assigned to him for the aforesaid compensation, with the terms and conditions herein provided. * * * (c) Said

Artist shall receive no compensation for rehearsals or for performances in which he does not actually render services, or for non-playing nights during the term of this contract, which occur because of accident, or his sickness, public calamity, or from the act of God or the public enemy.

“ *Third,*(a) Said Managers and said Artist further agree that the services of said Artist to be performed for the said Managers, shall be unique, special and extraordinary, and for the said reason, and in consideration of the terms of this contract, and for the further reason that the said Artist possesses *342extraordinary ability as an actor, the said Artist agrees that he will not render any services to any person or persons, firm or corporation, during the term of this contract, except upon written consent of said Managers first had and obtained.” Taken together, these provisions constitute a mutual, binding agreement between the parties for a definite period of eleven weeks, during which the artist is to render services for the manager, and for no one else without the latter’s written consent. The artist obligates himself to perform services for the manager during the term of the contract; the manager obligates himself to pay the artist the stipulated salary during that term. But there are certain exceptions to the absolute right of the artist to receive salary during the term of the contract. They are specifically enumerated: (1) Services at rehearsals. In the case at bar the rehearsals occurred before the plaintiff’s salary began to run. As to rehearsals subsequently had, this exception could only operate to bar extra compensation therefor; (2) performances in which the artist does not actually render services, which occur because of his sickness or accident. While this may seem harsh, as punishing the actor for inability to render service, for which he is not responsible, it is not so when one considers the effect of his absence on the company, perhaps preventing a performance or at least requiring the services of a • substitute. But this very exception contemplates a case where the actor is expected by the manager to render services and does not do so; (3) non-playing nights, caused by public calamity or the act of God or the public enemy. This exception is justified by the interference with the manager’s business by events both unexpected and of general concern, by which it would be unfair that the actor should profit, while his employer loses. Bead in conjunction with the paragraph marked “ First, (a)” these provisions indicate that the words “when services are rendered” were intended by the parties to mean no more than the due performance of the contract of employment by the employed. If they are to be taken literally, then the second and third exceptions quoted are meaningless and superfluous, for under the construction sought for by defendant, the artist by the very terms of the contract thus construed, would not be entitled to be paid anything when he *343failed to render services no matter what the cause might be, whether produced by his agency, that of the defendant or of a third party. We are,, therefore, of the opinion that when the defendant agreed to pay plaintiff for services rendered, the right to receive compensation was not limited to actual public appearances, but extended as well to so much of the contract period within which plaintiff was ready, willing and able to perform the services contracted for, presented himself for the services required of him, and was prevented from rendering such services by the unlawful, arbitrary and unjustifiable acts of the defendant. Nor can it be argued successfully that defendant had a right to terminate this period at will. Where the intent of the parties to make a mutually binding agreement of employment for a definite term is plain, the court will not interfere to thwart it by any forced construction of its terms. As was said in *Moran*v. *Standard Oil Co.*(211 N. Y. 187): ‘‘Note also that the writing in its opening words is described as an agreement, and that the engagements of each party are couched in terms of agreement, and not merely of promise. The plaintiff ‘ agrees ’ to serve for five years. The defendant ‘agrees’ to pay him at certain rates. The very word ‘agreement’ connotes a mutual obligation. *(Benedict*v. *Pincus,*191 N. Y. 377, 383, 384.) There may be a ‘ promise ’ to serve without a promise to employ, but there can be no ‘ agreement ’ for service without mutuality of rights and duties. *(Richards*v. *Edick,*17 Barb. 260, 263; *Baldwin*v. *Humphrey,*44 N. Y. 609, 615.) * * * These words are equally applicable to the contract before us. Just as the plaintiff impliedly undertakes to serve at the rates which the defendant ‘ agrees ’ to pay, so the defendant impliedly undertakes to accept for the designated term the service which the plaintiff ‘ agrees ’ to render. * * * There are times when reciprocal engagements do not fit each other like the parts of an indented deed, and yet the whole contract, as was said in *McCall Co.*v. *Wright*(133 App. Div. 62, 68), maybe ‘ instinct with * * * an obligation, ’ imperfectly expressed. If the defendant meant the plaintiff to understand that it had a right to discharge him at pleasure, it could easily have said so in words too clear for misconstruction. We think it did not say so, but by impli*344cation said the contrary.” We do not deem the decisions in *Pollock*v. *Shubert Theatrical Co.*(146 App. Div. 628) and *Plympton*v. *Liebler*(156 id. 944) decisive of the questions here presented. In the former case the contract was to pay for each and every week when plaintiff “publicly appeared and performed,” and not only did plaintiff there concededly not publicly appear and perform, but, as the court said: “There is no allegation, or any facts pleaded from which such allegation can be inferred, to the effect that the defendant bound itself to give the plaintiff employment or permit him to appear or publicly perform for any specified time. It simply agreed it would pay him for such time as he ‘ publicly appeared and performed; ’ in other words, under the contract as pleaded, it was entirely optional with the defendant whether it would give the plaintiff actual employment or not, but if it did, it was to pay him the compensation agreed upon, and there are no allegations in the complaint to the effect that the plaintiff has not been fully paid for each and every week that he did appear and publicly perform. This being so, it seems to me a cause of action is not alleged.” In the case at bar the complaint alleges that the agreement between the parties was one “ wherein and whereby the said defendant engaged and hired this plaintiff to work for it and render certain services as an actor, in connection with the production of a certain theatrical play known as *‘*Gypsy Love ’ for the term of eleven weeks, beginning the 1st day of October, 1911, and ending the 16th day of December, 1911, and agreed to pay plaintiff therefor the sum of Six Hundred ($600) dollars weekly, and that this plaintiff agreed with said defendant so to work and serve for the said time and for the said compensation.” In this construction of the legal effect of the contract we have already indicated our concurrence. Then follow appropriate allegations of plaintiff’s rendition of services at rehearsals, due performance by him of all the conditions of the contract by him to be performed, and his wrongful discharge by the defendant, together with his readiness and willingness to carry out the agreement. The condition of both the pleading and the proof is thus quite different from the *Pollock*case. Moreover, in that case the contract was radi*345cally different from the case at bar, and contained none of the provisions which, in our opinion, determine its construction. In the *Plympton*case the contract much more nearly resembled the one under consideration, although there was there an agreement to.pay only “while actually performing,” but we do not deem it determinative of the present appeal, the points of difference being sufficient to emphasize the greater mutuality of the present contract.

The judgment and order appealed from will, therefore, be affirmed, with costs.

Ingraham, P. J., McLaughlin, Laughlin and Hotchkiss, JJ., concurred.

Judgment and order affirmed, with costs.