The Savannah morning news. (Savannah, Ga.) 1900-current, 1903-01-21
FOXY GRANDPA WON
DESPITE INSTRUCTIONS FROM
JUDGE OF SUPERIOR COURT
JURY FOUND FOR DEFENDANT
IN CASE OF VI. WILENsKY VS.. THE
FOXY GRANDPA THEATRICAL co.

For the Third Time Since It's Insti-
tuition in 1901, the Theatrical
Company Gained "A Verdict in Suit
for Breach of Contract in Justice
Bevans' COurt-Suit Was for $2J
Because the Company Had Re
fused to Admit WiIensky to Best
Seats Upon the Agents Pass-The
Contract Being Verbal the PrOba-
BILE Reason for Verdict, Though
Judge Barrow Had Instructed
Tint Decision Be in Favor of
Plaintiff Unless Additional New
Testimony Was Introduced.
For the third, and probably last
time, since the institution of the suit
of NJ. Wilensky VS. w. A. Brady, pro-
prietor of the Foxy Grandpa Theatri-
cal Company, a verdict was rendered
yesterday afternoon in Justice Bebans'
court by a jury in favor of the theatre
cal company.
The suit was brought by Wilensky
Nov. 2, 1901, for an alleged breach of
contract, Wilensky claiming $25 dam
ages, and alleging that AL Spencer, adj
vance agent of the Foxy Grandpa"
Company, made a verbal contract with
him for advertising space in front of
his place of business for displaying
Autograph matter announcing the per-
Torrance of the troupe, he, Wilensky,
was to receive ticket to the perform
anrP Pnfitlinpr him 70 ho IN,
the house. upon presentation of the
ticket at the box office.
Was Turned Down.
Upon presenting the pass given by
Spencer it was turned down, relative
to the seat, though Wilensky was
offered admission to the theater, the
box office man telling him that the
pass would be honored on the second
nights performance with a first-class
seat, but not the opening night Wi
lensky would not accept admittance
upon these terms, and brought suit the
next day for breach of contract.
The case was heard the first time
before Justice Bevans Nov r. 1901,
and a decision was rendered in favor
of the theater company. An appeal
for jury trial was made and granted,
and the case came up for a second
nearing In January, last year, and
again the decision was for the theater
company. From this, the plaintiff
certioraried to the Superior Court, and
In May the case was sent back to the
justice court with instructions for a
new trial and finding for the plaintiff,
the amount of finding being left blank
Inc order, however, stated that the
finding must be based upon the same
evidence as introduced at the first
hearings of the case, and II additional
OF dllterent testimony was taken, the
order must be vacated.
No New Evidence.
At the hearing yesterday before a.
jury, the same evidence as taken bv
stenographer, at the first trial was
introduced, attorney w. H Boyd, ESQ.
appearing for the plaintiff and Emil
Newman, Esq, for the theater com
pany. With this status of affairs there
appeared no alternative for the jury
hearing the case but to render a YER
dict in conformity with the ruling of
Judge Barrow, but despite his written
decision, five jurymen after being out
half an hour returned with another. or
third verdict for the defendant, the
same reading I'VE the jury, find for
the defendant"
The decision was a surprise to the at
WI anu Oun6TS VINO mad thought
that the instructions frem Judge Bar
row, that verdict be found for the
plaintiff" unless additional and differ
ent testimony be introduced at the
nearing, would give Wilensky damages.
Was a Verbal Contract.
The one point at issue with the jury
and upon which the final finding was
based, despite the order of a higher
court, is the fact that the agreement
between Wilensky and Spencer was
verbal and that no written contract
was made between the parties as to
Wllensky's compensation for the adver-
Using privilege which he gave the COM
pany, and upon, which was probably
based the jury's decision
Mr. Newman, for the defense prompt
~ paid the jury for it's services, and
at present the case is closed, though
1t was said the plaintiff may carry the
case to the Supreme Court for a final
DISPOSITION