The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-11-02

Before Hos. Judge Mccarthy.
VI "L-'"'vad O. horrdni =. Wiiticm HIvr.soa.
This was an ac'ion an scvcl arrear o, ssl
ry as ss opefs singer
The fsfendant y me mansxsr o. the rngi.h opera som
pany known TO anr the Pync and uarrisop O,-, /.
Troupe, Asi the paif.iH cns OF the la,e re,nser, a.
that troupe.
The plaintiff relied writtca contract made ia ~
DON by whoA the aefeuaant cnscd he services 10 ,x
wiih the Pync and Harrison troupe Ia Amerlrs for ous
year, Ut weekly salary ~ f6 sterling. The year for
which the plaintiff engaged had expired sua he ac
snowicdsed to have been duly paid for all nytr
which re fo mantes by the troupe had taken place
he cacd 70 " entitled TO pay well fr the nights
which there performance, those whieh s ~,
was Isriornapoc aud The present action was /.
oostr proportion " The saary for the nights rbsss
nabIty. r'''' 'A 's'"'A"' ue'''' '''
Ms. fars Clark, for tho plsEnn con,cuded that tn.
contract was express, 10 employ and pay Tor yesr
performance o. ~ r. 'rforinance
mr. benjamin cnibr Nth Tor ihc defendant oubmittes
tAnt thc contract although tNprrAe IT. lcc
tsken made With reference to the universal custom
among theatdcai perfermris--that payment wa only
nndr NJ te nigh'sof r"tfotmAnccand claimed to give
parole evidence 10 show the exisonre II puch custom
he referred 50 the case os Maddox Gtan fis Law
Jour, 22l, * IN which The plaintiff snges sued
the q the Princess the le Is London fs raia.v
and evidence was admitted of custom 10 pay wh~s
no performance took plac.
Tho PLAINTIFF counsel obcc cd any evidence of sucs
custom, but the Court decided To adult H. The dc,eu
dant then proved that the nights which The pst.
tin now claimed Ia be paid the theatre wa closed ana
that wus the custom IN ,hs Amercaa weii ~ IN la.
London theatres pay the perormera on he nlsh,.
on wi ch no performance took place.
by the Courf-McoarhY, Jinis is en action tor ser
vices az an opera singer and the claim rests writes
contract ty witch the defendant bound himself
ploy the plaintiff TO sing for year weekly sary
o. as s'',ling npre"rs ths, 'he paiadd naa s-eu
In he was engaged to sing ofcn mpi tha, tho
claim n for the nights on which tie theatre was
The plan,in In,ists tha, the contract 4 10 ps,
the salary at all events, perfornsnee per
Iisinas services may BE- required The contract 1.
s'nguoos on iis iace and II topd alone tr pia,str
would undoubtedly he correct Ia his Interpretation of H.
and wosh be entitled 20 ,ecovcr--ba, ambguscs arc
81 two kinds, patent obvious. nnd Iaen, or he A~s
and thu e9p'Iact although free from any patent sm
guilty or Gbgoi'y ON its fncc, Il sdd by the tekn-
danf To eoser la'ent ambiguity ia ihe shaps
OF peculiar custom In The theatrical proession Which
although hot expressly referred by tho contra e. i
nevertheless ptesumed by law part 81 II mud necessary
be considered in ita Interpretation The def.naasas.
counsel claimed Ia show This custom and permitted hins
TO give evidence ol its exioase and of M NATURE
extent, J, is unasnsbiy true thai every 1. pro
suinsd to lnow not alne th. criminal and civil Law NJ
the land, hut ntao nil customs peculiar 10 his trade
or poiesson, or tie sabec. matter cf his contrsct-
cxyrcss fsfefence 10 such law aud custom The
primary ruis for ths eonstraci,on of every
contract Ia u ascertain the intent Of the parties The
intent too, s. to be gathered from the wbn rpptau ant
.nects posrbio, to be- given 10 eycfy part OF a. And
ns the law and every particular affecting
tract ar. prosum.d 20 be part snd parcel ~ H. must
In collecting the intent of ;r pafes coniaer ), omy
te contract Itself bat us law ani custom In this
although the expression ~ tire parties Is merely that shs
defendant shall pay the sectly saFy f,s rear .et
hs legal yls q exposition jn. rs.eries to- makes Ne
oestssy tnBt 10 necsrtain Tho latent ~ hr artio
must lock we'll what she parts. .ay a. whas Ia tbs
Law and custom Tho sx-tcrce ci a Ia the thea
uieal profession to lay only toe tho ughts prsemases
has l~sn clearly proved. has The f.at that In.
nights which the Kalsty claimed accrued tho the
atfe wa oo'ed aud Performance took place Reading
thz contract IA connection Win the custom ~stAh
bhed as | am bound 20 do cannot avoid the cYnriu.
ston on principle tha' the plaintiff has right 10
Tho correctness ~ this conclusion "a fii ain~
by the prior sdiudcaiiona particularly the u Gran;
Aaddok, cej by The defendant counsel the
Hinton vs. Iiocle bH tps and other authorstiss IaAx-
mint muat " enlcred for the defen1ant With ooalA.