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THEATRieAL LAW 


THE LEGAL RIGHTS OF MANAGER, 
ARTIST, AUTHOR, AND PUBLIC 


Theaters, Places of Amijsement, Plays, 
Performances, Contracts, and Regulations 


Bt 

J. ALBERT BRACKETT, LL.B. 

OF THX Boston Bab 
MASSACHUSETTS 


BOSTON. MASS. 

THE C. M. CLARK PUBLISHING COMPANY 
1907 



CoFTTtX&BT, 1907 

BY 

The C. M« Cxj^b-k PxtbubhixG' Co. 

B0STOB9 MASSAGEnTBxrrrs 


U. S. A. 



TABLE OF CONTENTS 


PAGE 


Table of Cases Cited xi 

Introduction r 


CHAPTER L 

Definition and History of the Theater and Public Amuse- 
ments 9-26 

CHAPTER 11. 

Public Amusements as Defined by Statute. The Legislative 
Power to License. Licenses: Their Scope and Necessity, 

How Issued under Authority. Mandamus Proceedings. 

The Necessity of a Right of Appeal 29-50 

CHAPTER III. 

Definition of Dramatic Performance. Dramatic Portrayal. 

* Necessity of Dramatic Element. Importance of Origi- 
nality. Mechanical and Scenic Contrivances. Common- 
law Ownership in Title. Methods of Protection of Title 53-^ 

CHAPTER IV. 

Ownership in Play or Musical Publication. How Protected 
Civilly and Criminally. Publication Defined. Perform- 
ance OF Play does not Constitute Pubucation. Abandon- 
ment, Right to Repeat or Reqte from Play. Play must 
be Moral and not Libelous. Liability for Wrongful Use 
OF Unpublished Compositions 73-98 

V 



Coirraiaxrr, 1907 

BY 

Tsb C. M. Cxjlbx: Pobubhikg' Co« 
Bostok, Mabsaghijbstts 
U. S. A, 



TABLE OF CONTENTS 

PAGE 


Table of Cases Cited xi 

Introduction i 


CHAPTER I. 

Definition and History of the Theater and Public Amuse- 
ments 9-26 

CHAPTER II. 

Public Amusements as Defined by Statute. The Legislative 
Power to License. Licenses: Their Scope and Necessity, 

How Issued under Authority. Mandamus Proceedings. 

The Necessity of a Right of Appeal 29-50 

CHAPTER III. 

Definition of Dramatic Performance. Dramatic Portrayal. 

• Necessity of Dramatic Element. Importance of Origi- 
nality. Mechanical and Scenic Contrivances. Common- 
law Ownership in Title. Methods of Protection of Title 53-69 

CHAPTER IV. 

Ownership in Play or Musical Publication. How Protected 
Civilly and Criminally. Publication Deputed. Perform- 
ance of Play does not Constitute Publication. Abandon- 
ment, Right to Repeat or Recite from Play. Play must 
BE Moral and not Libelous. Liability for Wrongful Use 
of Unpublished Compositions 73-98 

V 



vi TABLE OF CONTENTS 

. CHAPTER V. • 

Dramatic and Musical Compositions under Copyright Laws. 

Rights in Translation and Dramatization. Right of 
Author to Sell His Work. What May be Protected by 
Copyright. Rights of Employer to Works of Employee. 

Title or Name of Play 101-114 

CHAPTER VI. 

Manager's Duty to Protect Patron from Injury . . . 1 17-139 

CHAPTER VII. 

The Duty of the Manager to Protect His Patrons from Fire 

and Panic 143-162 


CHAPTER VIIL 

Manager's Right to Fix Price of Admission. Ticket of Admis- 
sion A Revocable License Rights of Revocation, How 
Exercised. Tickets, Reserved Seats, Return Checks. Dis- 
crimination, When Prohibited by Statute .... 165-193 

CHAPTER IX. 

Ticket Speculators. Rights of Manager and Public in Respect 

OF Same Forgery of Ticket 197-205 

CHAPTER X. 

Ejection, How Accomplished. Injury Occasioned by Removal 
of Disorderly Persons. Manager’s RESPONsrsiuTy for the 
Wrongful Acts of His Employees. The Establishment 
OF A Contractual Relation. Liability for Loss of Patron's 
Property 209-227 


CHAPTER XL 

Conduct of Axjtdience Rights of CRiriasM. Disturbance of 

Public Performance 231-236 


CHAPTER XII. 

Theatrical Contracts, Their Scope and Nature. Must be 
Legal and Moral and Not Vague or Uncertain. Persons 
Non Compos Mentis. Married Women. Corporations 



TABLE OF CONTENTS vii 

■ CHAPTER XIII. 

The Consideration of a Contract. Impossible and Illegal 

Agreements. Act of Gao as Excuse for Performance . 253-265 

CHAPTER XIV. 

Death or Disability as Excuse for Non-Performance . . 269-274 

CHAPTER XV. 

Illegal and Impossible Contracts 277-286 

CHAPTER XVI. 

The Contract Between Manager and Artist. Parties and 
Date. Salary. Restrictions as to Playing Elsewhere. 
Performances. Close of Season. Performer’s Duties. 
Incompetency. Costumes. Rules as to Transportation . 289-305 

CHAPTER XVII. 

The Contract Between Manager and Artist (continued). 

Rules Governing Performer. Rehearsals, Unsatisfactory 
Performance as Ground for Discharge. Clause as to 
Incompetency Construed. “ Satisfactory ” Defined. Trans- 
portation. Notices. Photographs. As to Termination 
Two Weeks’ Clause Theatrical " Season ” Defined. Final 
Clauses, Signature and Signing 309-334 

CHAPTER XVIII. 

The Contract Between Theater and the Playing Attraction. 
Necessity of Certainty in Description as to Quality. 

The Sharing Clause. Methods of Settlement. Advertis- 
ing Matter. Cancellation and Liquidated Damage Clause. 
General Provisions as to Performances. Use of Theater 
and Sale of Tickets 337-351 


CHAPTER XIX. 

Leases of Building for Theaters or Places of Amusement. 

Change of Law Respecting Use of Same Certain Kinds 
OF Attractions Defined. Use of Premises for an Immoral 
Purpose Neoessity of Clause to Protect Against Change 
IN Building Law. Fixtures Defined. Distinction Between 
Lease and License Lease When Controlled by Custom . 355 - 3 ^ 



viii TABLE OF CONTENTS 

CHAPTER XX. 

Baggage Defined. Liability of Common Carrier Therefor. 

Stage Properties not Baggage. Failure of Common Carrier 
TO Deliver Scenery 367-371 


CHAPTER XXL 

Lithographs and Photographs. Advertising Space. Photo- 


graph OF Public Character 37S'-38o 

CHAPTER XXII. 

Damages 383-401 


CHAPTER XXIII. 

Nominal and Liquidated Damages 405-411 

CHAPTER XXIV. 

Remedies Provided in Equity. Prevention of Impending In- 
jury. Protection of Common-Law and Copyright Title. 

Specific Performance of Personal Contracts. Restraint 
OF Artist from Performing Elsewhere. The English and 
THE American Rule. Services of a Unique and Ex- 
traordinary Nature. Restraint of Use of Misleading 
Advertisements. Injunction Against an Immoral Show. 
Injunction to Prevent Nuisance. Injunction to Prevent 
Wrongful Use of Photographs, Lithographs and Wood 
Cuts. Prevention of Continued Breaches of Contract, 

AND Wrongful Removal of Fixtures. Parties to Proceed- 
ings in Equity. Notice of Injunction .... 415-452 

CHAPTER XXV. 

Legislation Concerning the Theatrical and Amusement 
Business. The Employment and Admission of Children. 

Sunday Performances. Licenses. The Necessity for New 
Legislation to Govern Amusement Enterprises . . 455-476 


Index 


477 



TABLE OF GASES CITED 


References are to Pages. 


Abt V. Burgheim 210, 211 Bard v. N. Y. etc. Co. 128 

Alfars V, Davidson 385 Barnes v. Brown 406 

Allegheny Base Ball Club v. Baron v, Placide 241, 300, 301 
Bennett 435 Bartlett v. Crittenden 62, 82, 113 

Allen V. Deming 278 Barton v. Pepin County Agri. 

Am. Academy of Music v» Birt Soc. 133 

239, 364 Bass Furnace Co. v. Glasscock 310 

Amoskeag Mfg. Co. v. Gamer 450 Bates v. Keith 39 

Anchor Electric Co. v. Hawkes 295 Baumeister v. Markham 50 

Appeal of Penrose 44 Baylies v. Curry i88, 190 

Armstrong v. Grant 41 Bell v. Mahn 12, 54 

V, Murphy 39, 40, 41 Bender v. King 362 

Aronson v, Fleckenstein 63, 65, Benn v. Leclercq 109, 114 

84, 88, 422 Benson v. McMahon, 205 

Ashley v. Harrison 235 Bernstein v. Meech, 386, 387, 389 

Ashuelot Manuf. Co. v. Marsh 249 Benziger v. Miller 392 

Atkinson v. Doherty 380 Bickley v. Keenan 332 

Attorney-General v. Bay State Birkett v. Chatterton 245, 246, 
Co. 286 283, 465 

Atwill V. Ferret 63 Bixby v. Dunlop 400 

Atwood V. Fiske 279 Black v, Batchelder 240 

Avery v. Meikle, 449 j 450 Blanchard v, Blackstone 333 

Blumenthall v. Maine Cent. R. 

Bagley v, Peddie 409 Co. 370 

Baker’s Appeal 186, 445 Boardman v. Spooner 331 

Baker v. Cincinnati 4^3 Bond v. Wool 417 

V, ' Johnson 255 Boston v. Schaffer 39# 45 

Ball V. Coggs 429 Bostick v, Purdy 36 

V. Liney 257, 394 Boucicault v. Fox 73, 80, 105, 109 

Balson v. Donovan 370 v. Hart 69, 73, 80, 82, 88 

Barnes v. Miner 60, 107 v. Wood 83, 450 

Barber v. Penley 439 Bowen v. Hall 400 

ix 



X 


TABLE OF CASES CITED 


References are to Pages. 


Bowlin V, Lyon 


187 

Brackett v. Lubke 


139 

Bradbury v, Beeton 


112 

V. Dickens 


112 

Bradstreet v. Baker 

317, 411 

Brady v. Daly 


62 

Brayley v. Kelly 


331 

Brebach v. Johnson 


21 1 

Brightley v, Littleton 


109 

Brinkerhoff v. Alp 


411 

Briscoe v. Litt 


399 

Broder v. Zeno etc. Music Co. 

62 

Bronk v. Riley 


434 

Brown v. Butchers’ Bank 

332 

V. Foster 


320 

V. So. Kennebec Agr. 


Soc. 


120 

Buenzie v, Newport 

Amuses- 


ment Assoc. 


193 

Bunnell v. Stem 


223 

Burton v, Marshall 

243, 295, 42s, 

428, 430, 431 

V. Scherpf 171, 

172, 177, 187 

Butcher v, Hyde 


128 

Butler V, Galetti 295, 428, 429, 430 

V. Hudson R. R. 

Co. 

369 

Butterfield zr. Ashley 


401 

Cahin V. L. & N. W. Ry. Co. 

370 

Callaghan v. Myers 


109 

Camden v. Camden 


31 

Camp V, Thatcher Co. 

362, 446 

V. Wood 

118, 

121 

Campbell v, Portland Sugar 


Co. 


125 

Canedy v. Marcy 


240 

Carte v. Duff 


57 

V. Evans 


68 

V. Ford 


88 

Carter v. Ferguson 


434 


Claflin V. Meyer 223, 224 

Clark V. Price 429 

Clarke v. Price 431 

Clason V, Bailey 332 

Clement v. Cash 41 1 

Clifford V. Brandon 165, 231 

The Central Litho. & Eng. Co. 

V. Moore 377 

Champer v. Greencastle 456 

Chicago etc. R. R. Co. v. 

Flexman 215 

Chicago Gen. R. Co. v, Chicago 
etc. R. Co. 418 

City of Cincinnati v. Brill 33, 185 
Civil Rights Cases 187 

Cobb V. Boston Elevated Ry. 213 
Coghlan v. Stetson 329, 398 

Cohen v. Dry Dock etc. R. Co. 216 
Cohn V, Heimbauch 279 

Colliery Engmeer Co. v. United 
etc. Co. 109 

Collins V, B. & M. R. R. 370 
Collister v Hayman 168, 179, 199 
Commissioners v. Commission- 
ers 40 

Commonwealth v, Alger 455 

V. Bow 37 

V, Bush 21 1 

V. Clark 21 1 

V. Colton 30, 32 

V, Gee 35 

V. Mann 21 1 

V. Porter 236 

V. Powell 186 

V, Power 210 

V. Quinn 35, 36 

V. Ray 205 

V, Stokeley 50 

V. Twitchell 31 

V, Weidner 283 



XI 


TABLE OF CASES CITED 

References aee to Pages. 


Congregation v. Committee 39 
Conradt v, Clauve Ii8, iig, 126, 

136 

Consumers’ Oil Co. v. Nunne- 
maker 295 

Cook V, Steams 125 

Corbett v, Purdy 112 

Corbin v. American Mills 218 
Cordes v. Miller 257 

Corliss V, E. W. Walker Co. 378, 

443 

Corsi V, Maretzek 273 

Cort V. Lassard 430, 434, 435 

Cosulicb V, Standard Oil Co. 224 
Coughey v. Smith, 401 

Cowan V, Milboum, 459 

Craker v, Chicago etc R. W. 

Co. 215 

Cranson v, Goss 49» 278, 281, 283 
Crawford v. Mail Pub. Co 319 
Crease et al v. Babcock 451 

Croft V. Lumby 360 

Crowe V, Aiken 73, 80, 81, 84, 422 
Currier v, Boston Music Hall, 

118, 122, 128 
Curtis V. Kiley 131 

Daly V. Byrne 104 

V. Palmer 55, 59, 61, 63, 64, 
106, 421, 422 
V, Smith 428, 432, 434 

V. Webster 57, 59, 63, 68, 106 
Dauney v, Chatterton 186 

Davis V. Central Cong. Soc. 118 
Day V, McAllister 281, 282 

V. Simpson 55 

Dedham Inst for Savings v. 

Slack 333 

DeGelleet v, Poole 325 


Denny v. New York Central 


R. Co. 395 

Dent V, West Virginia 463 

DePol V, Sohlke 425, 428, 434 
DeRivafinoli v. Corsetti 429 

Derry v. Board of Education 324 
Detroit Base Ball Club v, Dep- 
pert 446 

Dexter v. Norton 269 


Diamond Match Co. v. Roeber 

445, 448 

Dickson v. Waldron 121, 214, 215, 


216 

Didbin v. Swan 235 

DisDebar v. Hoefle 375 

District of Columbia v. Saville 185 
Donnell v. State 188 

Dooling V. Budget Pub. Co 235 
Downing v, Blanchard 36 

Downing v, Elliott 418 

Drayton v, Reid 312 

Drew V. Peer 171, 174, 176, 190, 

391 


Duff V, Russell 239, 304, 429, 430, 


435, 436 

Duke of Queensberry v. Sheb- 
beare 378 

Duluth V. Marsh 39, 42 

Duim V Brown County Agri. 

Soc. 120 

Dunning w. Jacobs 122, 126, 133 

Duplex Safety Boiler Co. v. 

Garden 321 

Duval V. Wellman 279 

East India Co. v. Vincent 429 

Eaton V, Smith 296 

Edwards v. New York & Har- 
lem Railroad 129 

Egbert v. Greenberg 62 



xii TABLE OF CASES CITED 


Refebences are to Pages. 


Ehrgott V, New York 

393 Gay Mfg. Co. v. Camp 

409 

Electric City Land etc. 

Co. V. 

Georgia R. R. Co. v, Hayden 393 

West Ridge Coal Co. 

431 

Gibson v, Oliver 

409 

Ellser V. Brooks 328, 385, 406 Gilbert v. Bacher 

80 

Emerson v, Davies 

62, 108 

V. Nagle 

126 

Emery v. Kempton 

49 

Giles V. Simonds 

171 

Escott V. Cram 

384, 392 

Goddard v. Binney 

377 

Everson v. Powers 

395, 397 

Goldmark v. Kreling 

61 

Ex parte Bell 

33 

Gonsolis V, Gearhart 

310 

Ex parte Persons 

40 

Gordon v. R. R. Co. 

393 

Ex parte Ryan 

35 

Gossler v. Eagle Sugar Refin- 



ery 

339 



Gott V. Pulsifer 

235 

Falk V, Engraving Co. 

380 Gk)uld V. Murch 

269 

Farrell v. School District 400 

Graddon v. Price 

300 

Fay V. Harrington 

235 

Grau V, McVicker 360, 364, 401 

V. Noble 

333 Gray v. Boston Gas Light Co. 127 

Fechter v, Montgomery 

437 

V, Russell 

62 

Ferguson v, Gies 

188 

Great Northern Ry. Co. v. 

Field V. Brackett 

269 

Shepherd 

369 

Finch V. Gridley 

463 Greenberg v. Western 

Turf 

Finn^ran v. Lucy 

332 

Assoc. 

171, 188 

Fire Dept v. Hill 

48 Gregory v, Brunswick 

231 

V. Stetson 

33, 48, 186 

Grier v. Puterhaugh 

242 

Fisher v. Monroe 271, 272, 324 

Griflfin v, Colver 

387 

Fleron v. Lackaye 

86, 104 

Grinnell v, Kiralfy 

. 302, 318 

Forbes v, Howard 

361 

Gross V, Jackson 

361 

Forsyth v. Hooper 

139 

Grosz V. Jackson 

362 

Fox V. Buffalo Park 

124, 125 

Gwynne v, Hitchner 

319 

* V. Dougherty 

129 

Gyre v. Culver 

210 

Foster v. Goodrich 

415 



Francis v, Cockrell 

124, 125 



Fredericks v, Mayer 

429 

Hadley v* Baxendale 

393 

Freeman v. Selectmen 

41 

Hahn v. Concordia Soc. 

410, 430, 

French v. Kreling 

81 


435, 447 

V, Maguire 65, 104, 422 

Haines v, Chicago St P., 

M. & 

V. Vining 

396 

0. R. R. 

369 

Frye v, Bennett 

49, 235 

Hall V. Aronson 

325 

Fuchs V, Koemer 

399, 400 

V, Solomon 

431 

Fuller V. Bemis 

57, 58, 107 Halley v. Alloway 

362 



Xlll 


TABLE OF CASES CITED 

References are to Pages. 


Hallyburton v. Burke County 


Fair Assoc. 

133 

Hamblin v, Dinneford 428 

Hamlin v. Race 

310, 312, 31S 

Hannibal R. Co. v. Swift 369 

Harding v. Hagar 

284 

Hardy v. Martin 

315 

Harris v. Commonwealth 36, 55 

Harrington v. Fall 

River etc. 

Co. 

270, 273, 274 

Harrison v. Conlan 

269 

V, Trustees of Phillips 

Academy 

292 

Hart V. Washington 

Park Club 

118, 124, 133 

Harter v. Blanchard 

225 

Haskell v, Wright 

431 

Hathaway v, Sabin 

292, 332, 399 

Hawes v, Knowles 

217 

Hawkins v. Chace 

332 

V. Graham 

321 

Hawver v. Whalen 

131 

Hayes v, Willis 

428 

Hazzard v, Hoxsie 

377 

Heine v. Appleton 

449, 450 

Henderson v, Louisville & 


Nashville R. R. 224 

V. Tompkins 106 

Herrick v. Wixom 13 1, 135 

Higgins V. Franklin County 


Agr. Soc. 

129 

Higginson v. Weld 

316 

Hill V, Haberkom 

437 

Hilliard v. Richardson 

139 

Hope V, Linden Park 

etc. 

Assoc. 

279 

'Homer v. Nixon 

390 

Homey v. Nixon 172, 

175, 390 

House V, Clemens 

105 

Houston V, Freemansburg 

389 


Howard v. Daly 334» 397» 399 
Howe V. Newmarch 217, 219 

Howe Sewing Machine Co. v. 


Rosensteel 

273 

Hochster v. DeLatour 

401 

Hoeger v. The C. M. & St P. 

Ry. Co. 

369 

Hodges V, Town 

33 

Holden «/. Holden 

419 

V, Hoyt 

418 

Holman v. Johnson 

277 

Hubbard v. Belden 

271, 394 

Hughes V. Wamsutta Mills 

257 

Ikerd v. Beavers 

429 

Inchbald v. Robinson 

439, 440 

In re Considine 

461 

Debs 

452 

Lennon 

452 

Stevens 245, 

246, 468 

lolanthe Case 81, 88, 438 

Irvin V, Irvin 

279 

Isaacs V. Daly 109, 112, 114, 444 

Jacko V. State 

36, S6 

Jackson v. Babcock 

17s. 182 

Jacobs V, Denison 

292 

Jameson v. Carpenter 

279 

Jamieson v. Milleman 

175 

Jacquith v. Hudson 

4II 

Jardine v, Cornell 

216 

Jenne v. Sutton 

136 

Jennings v, Tompkins 

122 

Jeter v. Blocker 

400 

Johnson v. Wilcox 

132, 133 

V, Wilkinson 171, 

172, 363 

Jollie V. Jacques 62, 63, 

III, II 2 

Jones V, Jones 

2 II, 212 

Jordan v. Fall River Co. 

368 

Joseph V. Bidwell 

188 

Joyce V. Martin 

129 



XIV 


TABLE OF CASES CITED 


References are to Pages. 


Keene v. Kimball 75, 77, 88 
V. Wheatley 80, 85, 86, 88 
Kelley v. Caldwell 301 

Kemble v. Kean 427, 435 

Kendall v. City of Boston 13 1 

V, West 320 

Kimball v. Holmes 212 

Kimberly v. Jennings 427 


Macklin v. Richardson 80, 84 
Mapleson v. Del Puente 410, 437, 
447, 450 

Mark Twain Case 88 

Markham v. Brown 210 

Marks v. Jaffa 380, 442, 443 

Martin v. Murphy 447 

Martinetti v, Maguire 60, 86, 106, 
108, 422, 423 


Lanagan v. Atchinson 138 Mason v. Holt 126 

Lane v, Minn. State etc. Soc. 118 Mastad v. Swedish Brethren 129 

Latham v. Roach I2d Matter of Jacobs 457 

Latone v. Bland 449 Matthews v. Park 310, 315 

Lawrence v. Dana 62, 109 Mawson v. Leavitt 346, 348, 407, 

Leach z;. N. Y., N. H. & H. 408 

R. R. 371, 386, 401 Maxwell v. Somerton 450 

Leader v. Moody 360 May v. Parker 451 

V. Purday 63 Mendenhall v. 'Klinck 178, 179 

Leary v, Laflin 408 Messenger v. State 188 

Leatherberry zf, Odell 310, 315, 400 "Metcalf Case” 200 

Leavitt v. Kennicott 301, 328 Metropolitan Exhibition Co. v. 

V. Windsor Land etc. Co. 357 Ewing 436 

Lee V. Simpson 55, 60, 106 v. Ward 430, 434, 436, 437 

V. State 12 Mexican Soap Co. v. Clarke 303 

Levy V. Yates 357 Meyer v, Estes 316, 409 

Lewis V. Arnold 186 Mich. Cent. R. R. v, Carrow 370 

Lewis V, Fullarton 62 Mich. Southern R. R. v, Oehn 367 

Lindenmuller v. People 283, 285 Mifflin v. Dutton 83 

Linton v. Smitii 139 Miles v. State 44 

Lithographic Co. z/. Sarony 380 Miller v. Mariner’s Church 397 

Liverpool Ins. Co. v. Mass. 286 Minter v, Pac. R. R. Co. 369 

Loker v. Damon 396 Mixer v. Howarth 377 

Lord V, Wheeler 270 Montague v, Flockton 297, 3^, 

Lowenfield v, Curtis 301 427, 429 

Lumley v. Wagner 426, 429, 431, Moore v. Rugg 379, 442 

432 Moran v. Prather 297 

Lynde v, Thompson 409 Morrison v, Davis 395 

Lyon V. Pollard 303 Mosby v. State 37 

Mott V. Consumers Ice Co. 216 
Macrow v. Great W. Ry. Co. 369 Mounsey v. Drake 254 



XV 


TABLE OF CASES CITED 


References are to Pages. 


Mowers v, Fogg 

429 

Oliver v, Lansing 

362 

Mugler V, Kansas 

457 

Orton V, Brown 

32, 36 

Munn V. Illinois 

188, 460 

Osgood V, Allen , 

in, 112 

Murdock v. Martin 

409 

Oxford V. Leathe 

122, 125, 129 

Myers v. Walker 

328 



McAneany v. Jewett 

406 Palmer v. DeWitt 

73 , 74 , 79 , 84, 

McCaull V. Braham -239, 295, 410, 


88, 422 

430, 431, 434 , 43 S, 447 , 452 

V. Stevens 

452 

McCrea v. Marsh 171, 172, 175, 

Paradine v, Jayne 

264 


177, 390 

Parker v. Portland 

401 

McGavcock v. Morton 

332 

Parry American Opera Co. 397 

McGkjvemey v* Staples 

186 Partington v. Wamsutta Mills 274 

MacGowan Duff 176, 185, 391, 

Patterson v. Hammerstein 221, 223 


398 Pearce v. Spalding 

171, 172, 183 

McGuinness v. Shannon 

240 

Peckett V, Bergen Beach Co. 120 

McIntosh V. Miner 

241 

People V. Albany 

38 

McKnight v, Ratcliff 

386 

V. Daly, et al 

441 

McManus v. Crickett 

218 

V. Ewer 246, 455, 456, 464 



V, Examiners 

44 

Nash V, McCathem 

419 

V, Fairchild 

41 

National Tel. etc. Co. v. 

West- 

V. Flynn 

200 

cm etc. Co. 

63 

V. Gillson 

457 

Naylor v. Fall River etc. Co. 273, 

V. Grant 38, 39, 4 °. 4 i. 43 . 


274 


246 

Nessle v, Reese 

448 

V. Globe etc, Co. 

257 , 394 

Neuendorff v, Duryea 

30 

V, King 

188, 190 

Newcomb v. Wallace 

406 

V. Marx 

457 

Newman v, Reagan 

303 

V. Meade 

30, 246 

New York v. Eden Musee etc. 

V. Rosenberg 

457 

Co. 

35 

V. Royal 

37 

N. Y. Cent & H. R. 

Co, V. 

V. Scully 

44 

Haffen 

417 

V. Wurster 

38, 41, 43 , 44 

N. Y, Life Ins. Co. v, Allison* 3^ Peverly v. Poole 

324, 325, 326 

Nicol V. Fitch 

270 

Philadelphia Base Ball Qub v. 

Noice V, Brown 

400 

Lajoie 

430 

Noxon V. Hill 

393 

Philadelphia etc Ry. Co. v. 

Oakes v. Northern Pac. R. R. 

Derby 

217 


367, 368 Phillips V. Wise, State etc. Soc. 118 


Oakland City Agri. Co. v. Pike v, Compionwealth 26 

Bingham I2i, 214, 219 Platt v, Jones 4^7 



XVI 


TABLE OF CASES CITED 


References are to Pages. 


Pollard V. Photo Co. 

379, 442 

Rogers Mfg, Co. v. 

Rogers 

Pollard V. Schaffer 

257, 394 


435. 436 

Pond V, Merrifield 

406 

Rogers v. Union Stone Co. 334 

Pope V. Linn 

278 

Ropes V, Upton 

436. 448 

Poussard v. Spiers 

269 

Roys V. Johnson 

45. 28s 

Po\gell V, Burroughs 

409 

Russell V, Butterfield 

397 

Press Pub. Co. v. Falk 

380 

V. Smith 10, 

II. 59. 107 

Prince v. Case 

175 

Ryan v. Dayton 

272 

Pringle v. Napenee 279, 357, 459 



Prior V. Flagler 

271, 394 



Produce etc. Co. v. Bieberbach 334 

St Joseph County v. 

South 

Pullman Co. v, Krauss 

191 

Bend etc. R. Co. 

255 

Purcell V. Daly 177, 179, 197, 460 

Sanborn v. Flagler 

331 



Sanquirico v. Benedetti 

428 

Quarles v. State 

30. 283 

Sargent v. Carnes 

211 



V. Mathewson 

401 

Redloff V, Haase 

406, 411 

Savery v, Ingersoll 

382, 385 

Railroad Co. v. Fraloff 

368 

Scanlon v, Wedger 

13^ 

Ramsden z?. B. & A. R. Co. 217 

Schofield V. Wood 

122, 124 

Raymond v, Rhodes 

242 

Schonberg v. Cheney 

385 

Reade v. Lacey 

422 

School Dist No. i v, ' 

Dauchy 

Reed v. Carusi 

62, 63, 108 


254, 262 

Reeves v. Territory 

438, 441 

Schuyler v. Curtis 

380 

Reg. V. Saunders 

439 

Sebeck v. Plattdeusche etc. 

V, Strugnell 

SO 

Verein 

1 19, 120 

Reid V. Inglis 

210 

Selinas v, Vermont State etc. 

Rex V. Forbes 

232 

Soc. 

118, 133 

V. Handy 

55 

Serrana v. Jefferson 

57, 66, 106, 

V. Jones 

178 


107 

Reyer v. Odd Fellows’ Assoc. 286 

Shannon v. Comstock 

400 

Rice V. D’Arville 

437 

Shea V. Gurney 

135 

V, Winslow 

418 

Shelby v, Emerson 

50 

Richardson v. Boynton 

332 

Sherman v. Fitch 

333 

Richmond & M. R. 

Co. V. 

Shook V. Daly 80, 84, 86, 104, 422, 

Moore 

120, 131 


445 

Roberts v. Myers 

80 

Shook V. Rankin 80, 

81, 83, IDS 

Robinson v, Davison 

269, 272 

V, Wood 

II 2 

Rochester v. West 

456 

Simpson v. Wood 

45 

Rogers v. Mich. S. & 

N. L 

Slaughter House Cases 

4 ^ 

R. Co. 

417 

Sloan V. Williams 

429 



XVll 


TABLE OF CASES CITED 


"References are to Pages. 


Sloman v. Great Western Ry. 

Taxing District v, Emerson 12 

Co. 

371 Taylor v, Bradley 

38s. 387. 406 

Smith V, Bergengren 

41 1 V, Caldwell 


350, 364 

V. Loag 

406 V. Downey 


226 

V. Leo 174, 176, 391 V. Finnigan 


261 

V, Westfield etc. Bank 

225 Texas etc. Ry. Co. v. 

Putnam 283 

Smoot’s Case 

256 Texas State Fair v. 

Brittain 119, 

Snyder v, Cabell 

440 


Z20 

Sosman .v, Conlon 

362 V. Marti 


120 

Southwick V. Estes 

217 Thomas v, Knowles 


269 

Spade V. Lynn & Boston Rail- 

V. Lennon 


80 

road 

213 Thompson v. Lowell 

etc. 

Ry. 

Spalding v. Rosa 269, 272, 338 Co. 


120, 130 

Spring V, Ansonia Clock Co. 

320 Thornton v. Maine State 

etc. 

Spurgeon v. McElwain 

284 Soc. 


118, 120 

Stanley v, Montgomery 

409 Tobias v. Lissberger 


2SS 

State V. Bowers 

35 Todd V, Keen 


389, 406 

V. Commissioners 

39 Tompkins v. Halleck 

7S. 76, 80 

V. Gregory 

44 Tool’s Appeal 


38 

V. Hastings 

41 The Tornado 


270 

V, Hogriever 

30 Tower v. Utica etc. R, R. 

224 

V. Lundie 

37 Towle V. Larabee 


278 

V, Mackin 30, 245, 

246 Trask v. Little 


362, 446 

V. Schonhausen 

30 Traver v. Halstead 


360, 401 

V. Smith 

39 Turner v, Butler 


292 

V, Walker 209, 232 Tyler v, Ames 


320 

Stebbins v. Peck 

282 



Sterling v. Bock 

329 



V . Warden 

126 Union Mutual Life Ins. Co. v. 

Stewart v, Loring 

272 Univ. of Chicago 


419 

V. Thayer 30, 49, 279, 285 United States v. Seamen 

41 

Stewartson v, Lothrop 

284 



Stinson v. Conn. R. R Cq. 

371 



Stoneman v. Erie Ry. 

371 Van Neas v. Packard 


364 

Story V , Livingston 

451 VanHook v. Selma 


463 

Strakosch v, Strakosdi 

328 Village etc. v. People 


44 

Swanson v, Kirby 

295 Vincent v. King 


316 


Vogel V , St Louis 

Museum 

T. & P. Ry. Co. V. Faust Co. 

369 etc 


249, 333 

Tanner v. Robinson 

439 Vosburgh V. Moak 


136 



XVlll 


TABLE OF CASES CITED 

References are to Pages. 


Walker v. Walker 

331 

Wall V. Gordon 

83 

V. Lee 

210 

Wallace v, DeYoung 

295 i 430 

Wallack City 

30 

Wallis V. Day 

429 

Walsh V, Wiggins 

439 , 459 

Watson V. Russell 

409 

Warren v. Stoddart 

396, 397 

Waycross Opera House Co. v. 

Sossman 

362 

Wakeman v, Wheeler eta Mfg. 

Co. 

38s. 393 

Walker v, Brewster 

440 

V, Cronin 

400 

V. Tucker 

255, 269 

Watson V, Russell 

239, 324 

Webbes v. Chicago 

36 

V, Virginia 

456 

Webster v. Dillon 

429 

V. Watts 

210 

Welles V, Castles 

26s 

Welty V. Jacobs 

360, 446 

Wendell v. Baxter 

I 2 S 

Wheaton v, Peters 

69,88 

Wheeler v. Russell 

279 


Whitman v. Freese 339 

V, Merrill 389 

White V. Keaney 441 

Whitewood Chem. Co. v. 

Hardman 429, 430 

Whitney v. Lee 22$ 

Wicher v. Boston & Albany 
R. R. 224 

Widmer v. Greene 104 

Wigglesworth v, Dallison 364 
Wilkinson v. Stitt 452 

Williams v. Dental Examiners 44 
Willoughby v. Lawrence 375 

Wilson V. G. T. R. R. Co. 368 
Winsor v. Lombard 339 

Wood V. Leadbitter 166, 171, 172, 

177. 178 

Wood Co. V. Smith 320 

Woodman v, Howell 210 

World’s etc. Exhib. v. United 
States 448 

Worthington v. Waring 417, 4^9 
Wunsch V. Northern P. R. R. 

Co. 370 

Younger v, Judah 187 



INTRODUCTION 




INTRODUCTION 


The decisions of the courts on matters pertaining to the 
stage, and all manner of amusements to which the public is 
admitted, are no distinct phase of the law, merely an appli- 
cation of established principles to those particular subjects. 
To the lay mind a finding in a particular case on certain facts 
may sometimes appear opposed to common justice. Such, 
however, on analysis will prove otherwise, for legal principles 
do not vary to meet particular cases, and in application must 
always support those propositions of law which are certain 
and determined. A rule of justice varied to meet the contin- 
gencies of any particular instance would work serious dis- 
order to business and personal dealings. No hardship is done 
when the individual, understanding the fixed principles of 
law, accommodates himself and his actions thereto- Every- 
one is presumed to know the law, and ignorance thereof 
cannot be pleaded as an excuse. The popular idea of injustice 
generally arises from a state of facts where ignorance of what 
the law has determined has been the controlling element. 
Business would be at a standstill if ignorance and carelessness 
could override and control contracts and established legal 
relations. The law attaches to an agreement an integrity of 
purpose and compels the parties to abide by its terms, and 
the intent must be construed according to established princi- 
ples. The careless individual who signs a contract without 
thought or advice, or assumes relations without knowing his 
responsibility therein, is most often the one who complains of 



4 


INTRODUCTION 


lack of justice and unfairness in the courts. His the blame, 
for the law in its treatment of him as a reasoning, intelligent 
being presupposes his ability to safeguard his individual rights. 
No contract is so unimportant as not to merit care and due 
consideration, no business undertaking so trivial as not to call 
for an analysis of what it really comprehends. The “com- 
mon-sense ” method of doing business is often a futile attempt 
to accomplish the legally impossible. 

This volume covers in a general, and it is hoped compre- 
hensive, manner, matters which commonly arise in the man- 
agement of a theater and in the contracts between manager 
and artist. The rights of the public and the rights of the 
individual are respectively considered under appropriate heads. 
Amusements as a generic term covers all kinds of entertain- 
ment to which the public is admitted, and the principles stated 
apply not alone to theaters, but to the race track, the circus, 
a lecture, an advertising show, or a concert, in fact to any and 
all kinds of public entertainment. 

The author has selected such illustrations and arrangement 
of these principles as personal experience in actual practice 
has demonstrated are the general daily questions arising for 
1^1 consideration. No attempt has been made to cover the 
broad subjects of law involved in the specific instances, but 
rather to classify them with reference to decided cases and 
general controlling principles. Important statutes are referred 
to and many common and erroneous ideas of theatrical law 
explained, with suggestions for their avoidance. It is hoped 
this volume may prove a helpful gfuide to the manager, the 
artist, and the public, and contribute to a better underst an din g 
of their respective rights, duties, and liabilities. 

The text has been arranged with the thought that it may 



INTRODUCTION 


5 


interest the general public without detracting from its useful- 
ness as a legal authority for the attorney’s use. 

The author acknowledges the valuable assistance of John 
Vandervoort Sloan, Esq., of the Boston Bar, in preparing the 
index and table of cases. 

J. Albert Brackett. 

BAsiasTERs’ Hall, Boston, Mass. 

March, igoy. 




DEFINITION AND HISTORY OF THE THEATER 


AND PUBLIC AMUSEMENTS 




DEFINITION AND HISTORY 


CHAPTER I 


§ 1. nieatei Defined. 

A theater is a “ room, hall, or other place, with a .platform 
at one end, and ranks of seats rising step-wise as the tiers 
recede from the center, or otherwise so arranged that a body 
of spectators can have an unobstructed view of the platform.” 

"Century Diet," Tit “Theater.” 

From the Latin theatrum, from the Greek ddarpov, a place 
to view shows or plays, from 6scu;0cu (theasthai), to view, 
behold from. 

§ 2. The Kodem Theater. 

The modem theater consists, roughly speaking, of two 
parts, the auditorium and the stage. The first comprises 
suitable entrances, lobbies, reception-rooms, staircases, and 
means of approach to the auditorium proper, which is com- 
monly of semicircular or horseshoe form, the floor sloping 
down to the stage. According to the size of the house, there 
are from one to four balconies, which follow the curve of the 
horseshoe. The stage has a floor with an upward incline 
from the footlights to the rear wall of the theater, and on 
either $ide of the stage and at the rear there are spaces for 
the proper manipulation of the scenery and for dressing-rooms. 
Above the stage are the flies, where hang the pieces of scenery 



10 


DEFINITION AND HISTORY 


to be lowered into place by ropes, and below it corresponding 
depths into which the scenery may be dropped. 

See “ The New International Encyp.,” Tit “ Theater.” 


§ 3. Legally, a Theater. 

Legally, a theater is a building or any part of a building 
equipped or adapted and used for the purposes of musical 
or dramatic entertainments which has a stage, scenery, and 
like paraphernalia. A hall is not necessarily a theater, though 
it has a platform or stage. The bare platform is not enough 
to constitute a theater, but the furnishing of the stage with a- 
curtain, scenery, and other theatrical accessories in the way of 
footlights and flies would constitute a legal theater as defined 
by decision and statute. 

§ 4. Performance Does Kot Determine Theater. 

The performance itself, although dramatic in nature, does 
not establish a place as a theater, and has nothing to do with 
the characterization of the place or building from a legal 
standpoint; for a performance given in an ordinary hall with- 
out scenery, curtain, or other theatrical accessories, though 
dramatic, does not constitute the place a theater. All exhibi- 
tions, whether dramatic, musical, or negro minstrelsy, are 
classed as theatrical entertainments, and theatrical equipment 
in the way of curtains, scenery, and stage properties estab- 
lishes the room or structure as a theater. A mere temporary 
occupancy with the removal of all theatrical paraphernalia 
when not in use does not establish the place as a theater, nor 
does the payment of an admission fee make it such. 

Russell V. Smith, 12 Q. B., 217. 



DEFINITION AND HISTORY 


ir 


It is not important whether the performances are given by 
public performers or are in the nature of private theatricals 
if an admission fee is charged, but depends wholly on the char- 
acter of the place as determined by its general and perma- 
nent equipment 

Private Theatricals, Jour. Jur., 28: 19. 

“ The use for the time in question and not for a former 
time, is the essential fact. As a regular theater may be a 
lecture-room, dining-room, ball-room, and concert-room on 
successive days, so a room used ordinarily for either of these 
purposes would become for the time being a theater.” 

Russell V. Smith, 12, Q. B., 217. 

§ 6. Sramatio Ferfoimanee Defined. 

What constitutes a strictly dramatic performance is not 
entirely agreed, and such performances have been variously 
defined in different jurisdictions. Generally, it means any 
kind of a performance given on a stage, whether comedy, 
tragedy, opera, or minstrel show, in which people take 'part 
or perform either by speech, song, pantomime, or dance. 

The license to keep a theater or to give theatrical enter- 
tainments would, if strictly construed, bar everything but the 
pure drama; such is not, however, the intention of the law, 
for a theatrical establishment in any city that confined itself to 
the legitimate drama would be badly equipped to meet the 
popular taste. A more liberal construction is applied as more 
nearly giving effect to the real intent of the legislature. 

“ The legislature having determined as to the propriety and 
policy of requiring a license fee for all theatrical exhibi- 



12 


DEFINITION AND HISTORY 


tions, it would be difficult to state any reasonable ground for 
a distinction between the spoken and the lyrical drama, which 
would justify the exaction of a license fee from one and the 
exemption of the other. They are exhibitions of the same 
general character, and there is no reason why one should bear 
the public burden more than the other. Both are places of 
popular amusement and both collect large assemblages of the 
people and require additional police protection. These con- 
siderations are proper in determining the intent of the legis- 
lature.” 


Bell V. Mahn, 121 Pa. St, 225. 

Taxing District v. Emerson, 4 Lea. (Tenn.), 312. 

Lee V. State, 56 Ga., 477. 

§ 6. Theater, History of. 

Law is but the necessary regulation of things as they exist ; 
every new subject as it grew and developed into a part of 
the civic life required laws for its protection, government, and 
use. The same general laws applied to all things, but they 
had to be molded by the courts to apply with reason and 
justice to new conditions. The rationale of law depends upon 
its historical development; its application must ever change 
to suit the needs of newer and changing conditions. For this 
reason it is of profit and interest to review in a general way 
the history of the theater and its performances. 

Amusement commenced with life; man early found relaxa- 
tion and enjoyment in sports, music, and dance. The pastoral 
and not the dramatic prevailed in the earliest times. It was 
left to the Greek to establish a locus or place for entertain- 
ment, which, from the fact of its being a place to “ view ” or 
“behold from,” was called a theater. This was no more 



DEFINITION AND HISTORY 


13 


than the name implies, a mere place er depression with rising 
ground about it from which spectators could look down into a 
spot circular in form and called the orchestra, from the Greek 
word meaning “ dance.” Otherwise a place to view dances, 
synonymous with amusement. This so-called theater was 
open to the sky above and in no way protected from the 
weather. In such an open space, without background or 
scenery, were performed the earlier plays of .Sschylus. The 
performers dressed in some near-by house, walking to the 
place of performance through the ranks of spectators. Some 
years later the ground was so raised at the rear of the orches- 
tra as to allow for an underground passage called “ Charon’s 
steps,” from which the actors could rise from the ground to 
the center of the orchestra without mingling in any way with 
the spectators. Still later a tent was provided for the purposes 
of a dressing-room, which soon gave way to a permanent 
structure of wood or stone, in the shape of a temple or palace, 
from which usually three doors led directly to the orchestra, 
which was still retained on the same level. Sometimes, to 
emphasize the meaning of the play, characters representing 
the gods appeared on the roof of this building, which was 
called the skene, and was frequently covered by a curtain 
whereon was a painted scene. Hence the derivation of the 
modem word “ scene ” and its uses. 

§ 7. First Use of Stage. 

It is not until the fifth century that we find evidences of 
the use of a platform or stage. In the early times the profes- 
sion of acting was not classed as dishonorable; the actors and 
chorus were free citizens and always men. Women, save as 
lute girls, had no part in these performances. The plays 



14 


DEFINITION AND HISTORY 


generally depicted matters of a serious nature, mpre or less 
patriotic or educational in trend, as Grecian life, history, or 
religion. 

At Rome the drama, like the theater, was copied from 
Athens, but never attained to the dignity of a state perform- 
ance by citizens. The actors were generally freedmen or 
slaves, who performed plays adapted from the Greek, both 
tragedies and comedies. While it is generally supposed admis- 
sion was at first free, we find in Plato’s “ Dialogues ” 
(“ Apology of Socrates ”) these words : “ And these are 

the doctrines which the youths are said to learn of Socrates, 
when there are not infrequently exhibitions of them at the 
theater, price of admission one drachma at the most.” 

§ 8. Drama iu Early Times. 

In the earliest times the drama was a part of the civic life, 
protected by the state, and of an elevating and inspiring 
nature. Actors, in Greece, were of an honorable company and 
a part of the public life and influence. The use of the stage 
naturally led to supplying needs at first unthought of, and the 
theater, though still an open, uncovered space, became more 
permanent and elaborate of construction, as amply evidenced 
by existing ruins. 

The Middle Ages saw no improvement of structural condi- 
tions in theaters. The plays given were of a religious or 
semi-religious character, known as mysteries or miracle 
plays, and were performed on two- or three-storied scaffolds 
roughly erected in cathedrals, monasteries, or castle halls, and 
were sufficient to represent heaven, the earth, and hell. When 
given out of doors at fairs or public festivals a rough tempo- 
rary booth was constructed of boards, but no seats were 



DEFINITION AND HISTORY 15 

provided, and the spectators were forced to stand if they 
desired to witness the play. 

These plays all had religious significance, consisting of 
representations of the popular mysteries and moralities of 
the day, and were thought proper of performance in sacred 
places. The players were strollers moving from place to 
place, having no social recognition, and looked do"™ upon 
as of no respectable calling, being classed as mountebanks 
and not afforded the l^al protection givai the so-considered 
more respectable artisan or laborer. Their life was one of 
wandering discomfiture, for they lived and slept as they best 
could, often in the fields, and were constantly moving from 
place to place. 

§ 9. English Stage in Sixteenth Centniy. 

This was the general condition of the Stage and player folk 
in England until the end of the sixteenth century, when the 
play sprung into wider prominence as an amusement for all 
classes and conditions. 

§ 10. Eevival of the Drama. 

With the revival of learning came a like revival of the 
drama, and this period witnessed the construction of build- 
ings specially designed for dramatic uses. The early Italian 
theaters always followed on a small scale the model of the 
ancient theater, but in England, France, and Germany the 
representations took place in booths and inn yards. The form 
of our modem theater with its tiers of seats and galleries was 
doubtless originally copied from the old Eaiglish inn court or 
stable yard. 



i6 DEFINITION AND HISTORY 

§ 11. In Shakespeare’s Tine. 

The theater of Shakespeare’s tune was a rudely constructed 
affair, and is well described by Mr. W. Lloyd in his account 
of the Globe Theater in Bankside, London, which was built 
by James Burbage in 1598 and in which Shakespeare's plays 
were produced. “The internal galleries were protected by 
a roof of which the eves sloped outward only, while the 
central pit or yard was open to the sky and the portion of 
the octagon that was occupied by the stage and tiring-rooms 
was covered. The foppish custom of privileged spectators 
sitting on the stage on stools, with pages attendant, was a 
source of standing annoyance to the general audience. The 
curtains in front of the stage ran upon a rod and opened 
in the center, and the stage itself seems to have had an 
enclosure or arras, answering the purpose of our side scenes; 
toward the back, where they were called traverses, they could 
be drawn and imdrawn as required. In the center of the 
stage at the back was a secondary stage, more or less perma- 
nent. The break of level was supposed to account for any 
distance of perspective, and thus a double action might pro- 
ceed on the stage at once. This secondary stage formed indif- 
ferently the ramparts of a castle or the heights of a battlefield, 
Marc Antony’s rostrum, Juliet’s balcony, or the stage for- 
Hamlet’s prayers. In the way of scenery, the utmost that 
was attempted seems to have been to put such fixed proper- 
ties on and about the stage as would suggest the scene re--, 
quired. Tombs, rocks, hell mouths, steeples, beacons, and 
trees are found in lists of properties. There were devices for 
counterfeiting thunder and lightning, for exhibiting the sun 
breaking through a cloud, etc. Graves and trap doors, as- 
cents to and descents from heaven were also provided for. 



DEFINITION AND HISTORY 


17 


The stage was strewn with rushes, and on occasion, by excess 
of refinement, it was matted. The band of eight or ten per- 
formers is supposed to have sat in an upper balcony over 
what is now called the stage box. It remains to be said that 
changes of scene were generally effected simply by putting 
up a placard announcing what the stage was supposed to 
represent; that the dresses were rich and often extravagant; 
and that until the Restoration female parts were uniformly 
taken by boys or young men.” 

§ 12. itot Playhouse in Iioadoii. 

This describes the Globe Theater, built by Burbage, al- 
though the first permanent playhouse in London was built 
by him about 1576, and was known as the theater in Shore- 
ditch (1576-1598). Other playhouses rapidly followed and 
were briefly: The Curtain, also in Shoreditch (1577-1623) ; 
The Blackfriars (1576-1647); Paris Garden, Southwark, 
also used for bear baiting (1544-1647); The Whitefriars 
(1580-1612), rebuilt as the Salisbury Court Theater (1629), 
called in 1660 the Dorset Court Theater; The Fortune in 
Golden Lane, built 1621, rebuilt 1623, pulled down 1621. The 
Globe (1593-1647, burned 1613), and several others of minor 
importance. The Drury Lane Theater was first opened in 
1663, burned in 1672, rebuilt by Sir Christopher Wren, 1674, 
again rebuilt in 1794, burned 1809, and rebuilt by W)^tt 1812. 
The Haymarket Theater was originally built in 1702, rebuilt 
in 1767, and again rebuilt in 1821. Covent Garden Theater 
opened in 1732, burned in 1808, again burned in 1856, and was 
rebuilt by Barry in 1858. 



i8 DEFINITION AND HISTORY 

§ 13 . Erst Movable Scenery. 

Balthazar Sienna first introduced movable scenery in Italy 
about 1553, which to some extent was perfected by Bibbiena 
in 1657. Inigo Jones carried stage mechanism to a degree of 
perfection for use in the masques which he invented in con- 
junction with Jonson, Carew, and Davenant, but it was not 
until after the Restoration that movable scenery, as we know 
it now, was practically utilized on the stage. In 1700 scenery 
began to be painted upon flats which were run in grooves 
on the stage. It was not until 1660 that women appeared 
upon the English stage to assume the female parts thereto- 
fore taken by men and boys. The price for seats or admis- 
sion to the theater in Shakespeare’s time varied from one 
penny to one shilling. 

§ 14. Elizabethan Theaters. 

Says Taine in his “ History of English Literature ” ( Vol. 
I, p. 264), writing of the period of Elizabeth: “ There were 
already seven theaters in London in Shakespeare’s time, so 
brisk and universal was the taste for dramatic representa- 
tions. Great and rude contrivances, awkward in their con- 
struction, barbarous in their appointments; but a fervid im- 
agination readily supplied all that they lacked, and hardy 
bodies endured all inconveniences without difficulty. On a 
dirty site, on the banks of the Thames, rose the principal 
theater. The Globe, a sort of hexagonal tower, surrounded 
by a muddy ditch, on which was hoisted a red flag. The com- 
mon people could enter as well as the rich; there were six- 
penny, two-penny, even penny seats; but they could not see 
it without money. If it rained (and it often rains in Lon- 



DEFINITION AND HISTORY 19 

don), the people in the pit, butchers, mercers, bakers, sailors, 
apprentices, received the streaming rain upon their heads. I 
suppose they did not trouble themselves about it; it was not 
so long since they began to pave the streets of London, and 
when men like these have had experiehce of sewers and 
puddles, they are not afraid of catching cold. While waiting 
for the piece th^ amuse themselves after their fashion, 
drink beer, crack nuts, eat fruit, howl, and now and then 
resort to their fists; they have been known to fall upon the 
actors and turn the theater upside down. At other times th^ 
were dissatisfied and went to the tavern to give the poet a 
hiding or toss him in a blanket; they were coarse fellows, 
and there was no month when the cry of ‘ Clubs ’ did not call 
them out of their shops to exercise their brawny arms. When 
the beer took effect, there was a great upturned barrel in 
the pit, a peculiar receptacle for general use. The smell rises, 
and then comes the cry ‘Bum the Juniper!’ They bum 
some in a plate on the stage, and the heavy smoke fills the air. 
Certainly the folk there assembled could scarcely get dis- 
gusted at anjrthing and cannot have had sensitive noses. In 
the time of Rabelais there was not much cleanliness to speak 
of. Remember that they were hardly out of the Middle -Ages 
and that in the Middle Ages man lived on a dung hill. 

“ Above them, on the stage, were the spectators able to pay 
a shilling, the elegant people, the gentlefolk. These were 
sheltered from the rain, and if they chose to pay an extra shil- 
ling, could have a stool. To this were reduced the preroga- 
tives of rank and the devices of comfort. It often happened 
there were not stools enough; then they would lie down on the 
ground; this was not a time to be dainty. They play cards, 
smoke, insult the pit, who gave it them back without stinting. 



20 


DEFINITION AND HISTORY 


and Arow apples at them into the bargain. They also ges- 
ticulate, swear in Italian, French, English; crack aloud jokes 
in dainty, composite high-colored words, 

“ With such spectators illusions could be produced without 
much trouble; there were no preparations or perspectives; 
few or no movable scenes; their imaginations took all this 
upon them. A scroll in big letters announced to the public 
that they were in London or Constantinople, and that was 
enough to carry the public to the desired place.” 

§ 15. The Stage O^feneiates after Shakespeare’s lime. 

A few years saw greater changes for the worse in matters 
of dramatic representation. Romance had given place to 
gn’oss sensuality. The public demanded from the stage what 
it saw and encountered in actual life. The mimic had to be 
the real — ^the theater had to produce the street, and that was 
life in its most sordid and nauseous aspect. The theatergoer 
no longer was satiated with poetry, comedy must give him 
the same species of entertainment as real life. “ He will 
wallow equally well there in vulgarity and lewdness, to be 
present there will demand neither imagination nor wit ; eyes 
and memory are the only requisites. This exact imi tation 
will amuse him and instruct him at the same time. Filthy 
words will make him laugh through sympathy. Shameless 
imagery will divert him by appealing to his recollections. 
The author, too, will .take care to arouse him by his plot, 
which generally has the deceiving of a father or a husband 
for its subject The fine gentlemen agree with the author in 
siding with the gallant; they follow his fortunes with interest 
and fancy that they th^elves have the same success with 
the fair. Add to this women debauched and willing to be 



DEFINITION AND HISTORY 


21 


debauched, and it is manifest how these provocations, these 
manners of prostitutes, that interchange of exchanges and 
surprises, that carnival of rendezvous and suppers, the im- 
pudence of the scenes only stopping short of physical demon- 
stration, those songs with their double meaning, that coarse 
slang shouted loudly and replied to amidst the tableaux vi- 
vanfs, all that stage imitation of orgie, must have stirred 
up the innermost feelings of the habitual practicers of in- 
trigue, And, what is more, the theater gave its sanction to 
their manners. By representing nothing but vice, it author- 
ized their vices. Authors laid it down as a rule, that all 
women were impudent hussies and that all men were brutes. 
Debauchery in their hands became a matter of course; nay 
more, a matter of good taste ; they profess it. Rochester and 
Charles II. could quit the theater highly edified; more con- 
vinced than they were before that virtue was only a pretense, 
the pretense of clever rascals who wanted to sell themselves, 
dear. ” 


“History of English Literature,” voL il, 154. 


§ 16. Public Demands Immoral Plays. 

The stag;e never persists in giving the public what it does 
not want nor expect, or refuses to patronize. The degradation 
of the stage at the period of Charles I. was the natural out- 
come of the demands of a people, who saw no beauty in 
decency and condemned the works of Shakespeare as too 
moral for amusement, and too tame to be countenanced. 

The taste of such a people fashioned the theater and its 
offerings ; from them it got its inspiration. It was a time of 
laxity of religion. Morality was scoffed at, and the severe 



22 


DEFINITION AND HISTORY 


views of life taken by the Puritans were ridiculed on the 
stage in the most wanton and lewd manner. The people 
demanded performances which left nothing to the imagina- 
tion in the way of words and action, and for sixty years the 
theater, though it throve, was steadily pushed to the depths 
of all' that was immoral and bad. It was a true reflection 
of the condition of the times and of a people who were 
swayed by their desires, and actuated by the baser passions. 
Catholicism, reduced to external ceremony, had just ended; 
Protestantism, arrested in its first groping after truth or 
straying into sects, had not yet gained the mastery, and there 
was a lack of moral and religious sense. 

§ 17. The Fnritaiis. 

To such a state had the theater fallen when in the seven- 
teenth century the Puritans crossed the sea to settle a new 
land. They brought the laws of England with them as a 
nucleus for their common law, reserving such parts as they 
deemed fit for their civic guidance in which the puritanical 
spirit and its narrow ideas held absolute sway. It was a 
parting of the ways; a literature entirely religious left no 
place for the condemned wickedness of the play; a theater 
was considered no better than a bawdy house, and classed as 
a haunt of sin, having neither part in the needs nor protec- 
tion under the laws of those stem-minded Puritans 

S' 18. ProhibitioiL and Begeneration. 

, England a few years later was swayed by the puritanical 
spirit, and Parliament under Cromwell prohibiting the play- 
hjouse, it sunk into obscurity and lost all place for several 
years in the life of the people. During the eight years of 



DEFINITION AND HISTORY 


23 


Cromwell’s dictation no theatrical performances of any sort 
were countenanced or allowed. After Cromwell, when the 
theaters were reopened, public taste had changed; the old 
comedies, fallen into disuse under the demand for plays less 
decent, were adapted to suit more puritanical ideas, and in 
a manner to mar the beauties of their original intendment 
Shakespeare’s works were considered too immoral for presen- 
tation as originally written. The pendulum of public taste 
had swung far the other way. Plays were transformed, the 
public had changed, and with it all the stage, too, was changed. 

§ 19. Pepys as a Critio. 

Pepys records in his diary under date of September 29, 
1662 : “To the King’s Theater, where we saw ‘ Midsum- 
mer Night’s Dream,’ which I had never seen before, nor shall 
ever see again, for it is the most insipid, ridiculous play that 
I ever saw in my life.” 

Such was the havoc that the pruning knife of public de- 
mand had caused with the drama, and managers well realized 
the necessity of catering to the changed taste of the people, 
offering only what was expected or would be tolerated, no 
matter how vapid that same might be. 

§ 20. Pizst Ameiioan Theaters. 

Two decades before this was the commencement of the 
law-forming period of this coimtry, and although the earlier 
settlers differed on questions of religion and in their defini- 
tion of liberty of thought, it was not tmtil 1752 that the first 
American theater was built in Williamsburg, and there in 
that region of the American cavalier, William Hallam, an 
English actor, first dared to defy the colonial prejudices 



24 


DEFINITION AND HISTORY 


and construct a playhouse. His venture, however, not re- 
ceiving sufEcient patronage, caused him to abandon that place, 
and a year later he opened the first theater in New York, 
in Nassau Street, on the site of an old Dutch church; at the 
end of the same year he moved to Philadelphia and fitted up 
a building as a playhouse in the vicinity of Pine Street It 
was not until 1773 that a theater was built in Boston, which 
at once became a place of mere toleration and was bitterly 
opposed by the foremost citizens. 

“The Drama,” Vol. 19. America. 

§ 21. Pniitanical Opposition to St^;e. 

In the few cities now supplied with theaters performances 
were infrequent and not patronized to any considerable ex- 
tent, bemg mamtained under the active disfavor of the clergy, 
who did everything in their power to discourag^e and prevent 
such form of amusemait The performers were considered 
outcasts, and the most rigid and absurd regulations enforced 
against them and their vocation. These wandering players 
came from England, and it is not overstrange that the Puri- 
tans looked upon them askance, as their knowledge of the 
theater was traditionary, and conditions which were bad 
enough at earlier times in the mother country took on no 
better aspect in their remembrance. It was a new generation 
who knew only of plays and player folks from the recitals 
of their fathers, whose knowledge was of the worst period 
in the history of the stage, and who did not hesitate to con- 
demn such as the product of all that was pernicious, wicked, 
and inunoral. 



DEFINITION AND HISTORY 


25 


§ 22. ForMdding Satuday Night Fetfonaanees. 

The law which allowed the opening of the theaters in 
Boston expressly forbade performances on Saturday night, 
for nothing so profane could be tolerated at an hour near 
the holy day, when every thought must be directed toward 
preparation for the all-important religious duties, and it was 
not until 1858 that the legislature repealed this statute and 
allowed the opening of theaters on Saturday night. 

The first theatrical performance given on a Saturday night 
in Boston took place May i, 1858. The playbills for some 
time previous contained this announcement: 


“special notice. 

“ The Legislature of Massachusetts during the last 
session, having abrogated an old law, which pre- 
vented Dramatic Representation from taking place 
on Saturday Evenings, and the Board of Aldermen 
also having granted the petition of Mr. Barrow to 
open this Theater on Saturday evenings, he proposes 
testing Public Opinion by giving a Dramatic Per- 
formance of a high order on Saturday Evening 
next.” 

It is said the public did not respond cordially to the inno- 
vation, small attendance being the rule for many Saturday 
nights. 

§ 23. The Common law. 

The common law followed the trend of public opinion, 
and while it came to sanction prudent theatrical perform- 



26 


DEFINITION AND HISTORY 


ances, it still denounces as unlawful and indictable such as are 
licentious, demoralizing, or obscene, the definition of which 
varies according to the time and the measurement of such 
amusements. 


Pike V. Commonwealth, 63, Ky., 89. 

For an interesting and comprehensive history of the early 
English laws and statutes pertaining to plays, actors, and 
theaters, see an article by R. Vashon Rogers, Esq., entitled 
“ Some Things About Theaters,” published in The Green Bag, 
Vol. 6, p. 259. 



PUBLIC AMUSEMENTS AS DEFINED BY STATUTE 
THE LEGISLATIVE POWER TO LICENSE 
LICENSES, THEIR SCOPE AND NECESSITY 
HOW ISSUED UNDER AUTHORITY 
MANDAMUS PROCEEDINGS 
THE NECESSITY OF A RIGHT OF APPEAL 




LICENSES 


29 


CHAPTER 11 

§ 24. Theatrical and Public Amusements are Proper Subjects for 
Legislative Control, and the Passage of Laws Eegulating the 
same is a Constitutional Exercise of the Police Power Vested 
in the Legislature. 

In America from the earliest times the theater, public shows, 
and amusements alike arose in opposition to the wishes of the 
clergy and came into existence as matters of mere toleration, 
burdened with oppressive and restrictive regulations. The 
church did much in molding the early legislation of the older 
States, and such hostility left no undecided mark on amuse- 
ment law and furnishes the explanation for many decisions 
which are harsh and almost absurd in their legal application, 
when considered from a modem standpoint. 

The courts very early recognized the full right of legisla- 
tive bodies to make laws which should control the theater 
and all kinds of amusements as a matter directly concerning 
public morals and behavior, and held such laws were constitu- 
tional. 

§ 25. The Sight of the Legislature to Eegnlate Amusements. 

The legislative power can properly enact regulations gov- 
erning not only the amusement or exhibition itself, but the 
way, manner^ and place wherein the same may be given. 
This power is derived from the inherent right vested in the 
legislature to protect the public morals and control anything 

29 



30 


LICENSES 


which might disturb its peace or security. It can regulate 
the hours at which public amusements may take place, the 
manner in which given, and the persons who may take part 
Minors can be excluded both as performers and spectators. 

Stewart v. Thayer, i68 Mass., 519. 

People V. Meade, 24 Abb. N. Cas. (N. Y.), 357. 

State V. Mackin, 51 Mo. App., 129. 

A statute which prohibited the opening of theaters and 
the use of bowling alleys after six o’clock on Saturday after- 
noon was held constitutional for the reasons stated, and so of 
statutes prohibiting Sunday performances. 

Commonwealth v. Colton, 8 Gray, 488. 

Stewart v. Thayer, 168 Mass., 519. 

Quarles v. State, SS Ark., 10. 

State V. Hogreiver, 152 Ind., 652. 

§ 26. Legislature May Sequiie the licensing of Theaters. 

It is competent for the legislature to regelate places of 
amusement and require them to be licensed. It has a right 
to determine and declare what recreations and amusements 
are harmless and innocent and therefore lawful. It has the 
power to d^ne what amusements operate injuriously upon 
the public or exert a baneful influence upon the community, 
and thus tend to a breach of the peace or the harm of the 
morals of the people. Such matters may be lawful or unlaw- 
ful according to the decision of the legislature, and no public 
amusement can be given when prohibited or without a license 
when a license is required. 

Wallack v. City of New York, 3 Hun, 84. 

NeuendorfE v. Duryea, 52 How Pr., 267. 

State V. Schonhausen, 37 La. Ann., 42. 



LICENSES 


31 

§ 27. Coiurts Will Not Seview Discretion Exercised by I^^isIatTire. 

The courts will not ordinarily, even if they have the power 
to do so, sit in review of the judgment and discretion exer- 
cised by the law-making power, the same being peculiarly 
within the province of the legislature, and a part of its police 
authority. 

In Boston v. Schaffer, 9 Pickering 415, the question arose 
as to whether it was competent for the legislature to gjrant 
a city the power of exacting payment of money as one of the 
conditions of granting a license for theatrical exhibitions. 
In 1828 the defendant applied for a license to give theatrical 
and equestrian exhibitions in the City Theater, and the right 
of the city to exact pa3mient of a license fee as authorized by 
an act of legislature was before the court. Here it was held 
that “ the levying of an excise has been practiced in r^rd 
to other occupations, and the constitutionality of it has never 
been doubted. There can, therefore, be no objection to it in 
the present case, admitting theatrical entertainments to be as 
meritorious as other occupations. But it seems to be pecu- 
liarly proper in employments of this kind. They require to 
be watched. Towns are put to expense in preserving order, 
and it is proper they should be indemnified for inconveniences 
or injuries occasioned by emplojnnents of this nature.” 

That a license is usual and properly required and that the 
legislature can regulate places of amusement and require 
licenses, see 


Baker v. Cmcinnati, ii Ohio St, 543. 
Commonwealth v. Twitchell, 4 Cush., 74. 
Camden t. Camden, 77 Me., 530. 



LICENSES 


32 

§ 28. The Lmislfttare has fhe Power to Enact Police Kegnlations 
Places of Public Amusement. 

It is clearly within the power of the legislature to make 
police regulaticms as to the hours and modes of occupying 
places of amusement, so as to make their use consistent with 
the peace of the community. The reasons which may induce 
a legislature to make it penal to suffer a place of amusement 
to remain open after certain hours are not open to investiga- 
tion by the court, the same being within the province of 
legislative enactment. 

Commonwealth v. Colton, 8 Gray, 488. 

The legislature may require the obtaining of two licenses, 
one from the State and another from the city, and still act 
within its constitutional limits, but a county cannot impose 
an additional license fee, it having no power to levy taxes. 

Orton V. Brown, 35 Miss., 426. 

31 Leg. Int. (Penn.), 84. 

The legislature or local authority has full power to con- 
trol the building and maintenance of theaters and structures 
for public amusements, and may adopt such regulations and 
conditions as it considers necessary for the protection of the 
public, even to the requiring that exits and aisles be kept 
clear and open. 

It is obviously impossible for any man to say how many 
people would, in a panic, block up a narrow passageway. Cer- 
tain it is that in a rush some of the weaker will be knocked 
down and trampled under foot and that their bodies will effec- 
tually obstruct the way. It is not a question as to how long 
it may take to empty a theater where everybody is cool and 



LICENSES 


33 


moving leisurely, but as to whether it is safe to allow pas- 
sageways to be blocked when a crowd of panic-stricken people 
are making a mad rush for the doors. 

“ The legislature has made its meaning perfectly clear, 
and has said that no person shall be allowed to stand in the 
passageways, and it is not for any judge to say that, although 
the legislature has forbidden it, the manager is at liberty to 
allow forty or fifty people to occupy the ways of exit. Of 
course if it should appear that, despite the bo^ia fide efforts 
of the defendant’s servants, there was a knot of two or three 
persons tarrying for a moment or two in a passageway, no 
sensible justice would hold that the statute was violated.” 


Fire Department v. Stetson, 14 Daly, N. Y., 125. 

Dillon Mun. Corp., par. 357 et seq. 

§ 29. The Begulations Must be Eeasonable. 

The general rule has its reasonable limitations, and it was 
decided in Waters v. Leech, 3 Ark. no, that, although a 
city council has the right to prescribe reasomble regulations 
governing the acts of theatrical managers in the operation of 
their business, it cannot transcend the rule of reason and de- 
mand what is repugnant to common-sense, and that an ordi- 
nance requiring owners of theaters to pay the city police two 
dollars a night for attending public performances therein 
was unreasonable. On this point, however, it is well to con- 
sider the more recent case of Duluth v. Marsh, 71 Minn. 
248, wherein the court decided that a license fee for six months, 
based on the payment of a like amount to an officer, was 
consistently reasonable. 

City of Cincinnati v. Brill, 7 Ohio N. P., 534. 

lEodges V. Town, 21 Tenn., 61. 

Ex Parte Bell, 32 Tex. Cr. R., 308. 



LICENSES 


34 

In City of Cincinnati v. Brill it was decided that under 
the provisions of an ordinance which prohibited the selling 
of reserved seats for a theatrical performance after the doors 
of the theater had been opened, a speculator was liable, as 
having bought theater tickets he became in effect the agent 
of the theater and liable in the same way as the agent in 
the box ofSce for a violation of the ordinance, and it was no 
defense that the speculator purchased the tickets, afterwards 
wrongly sold by him, from the box office the day before the 
performance, and that such ordinance was a reasonable and 
proper regulation. 

§ 30. How such Sestiiotive Statutes are Construed. 

Statutes of this restrictive nature are narrowly construed, 
and the prohibition requiring a license to maintain the sport 
or amusement only extends to the class of entertainment spe- 
cifically mentioned. 

The definition will not be extended to embrace an exhibi- 
tion which is not clearly prohibited, and a license will not 
be required except in such instances as are clearly intended 
by the legislature. Statutes in the different States materi- 
ally vary in the definition of what may be the subject of 
license requirement, and should be separately considered. A 
statute prohibiting public amusements without a license does 
not apply to a school for instruction in dancing, as the whole 
scope and purpose of the statute would seem to have reference 
to a different sort of assembly. Such a case is not within 
the language of the statute nor one of the evils sought to be 
remedied by it. It is clearly not a place of public show or 
public amusement or exhibition prohibited by the statute. 
This view of the statute will not protect a party setting up a 
place of public amusement to which admission is granted on 



LICENSES 


35 


payment of money under color or pretense of a school for 
teaching dancing. A dance hall, to which the public is ad- 
mitted on the payment of a fee, is a public amusement within 
the prohibition of such statute. 


Commonwealth v. Gee, 6 Cush., 174. 

Commonwealth v. Quinn, 164 Mass., ii. 

§ 31. Various Constrnctions. 

A statute which enumerates specifically the kinds of enter- 
tainments requiring a license will not be extended to a covir 
cert if the same is omitted from the list, not being specifi- 
cally enumerated.” 

State V. Bowers, 14 Ind., 195. 

But a statute requiring that a license be obtained for any 
“ interlude, tragedy, comedy, opera, ballet, play, farce, min- 
strelsy or dancing or any other entertainment of the stage ” 
has been construed to apply to orchestral concerts given upon 
a stage. 


New York v. Eden Musee Amusement Co., 102 N. Y. 593. 

A Statute providing a penalty for “exhibiting or partici- 
pating in exhibiting in public any musical performance with- 
out a license” refers only to the proprietors of the place 
wherein such performance is given, and not to those who 
perform therein, the phrase “participating in, exhibiting,” 
etc., having sole reference to a jomt owner, manager or 
controller. 


Ex parte Ryan, 7 W. L. B. (Ohio), 50, 299. 



LICENSES 


36 

“ It would be hard to imagine a public amusement offered 
by the entertainers which would not be included in the words 
‘ public shows and exhibitions of any description ’ as used 
in the Revised Laws of Massachusetts/’ 

Commonwealth v. Quinn, 164 Mass., ii. 

The word “ museum ” in a statute providing that any per- 
son who shall exhibit for hire any museum, waxworks, etc., 
shall first obtain a license, includes an exhibition of living 
animals. 


Bostick V. Purdy, 5 Stew. & P., 105. 

A license to keep a “ theater ” will not protect one who by 
contract with the licensee exhibits therein feats of legerdemain 
or sleight of hand. 

Jacko V. State, 22 Ala., 73. 

A horse race is included within a statute prohibiting “ simi- 
lar games of sport and all other exhibitions, performances, 
and entertainments.” 

Webber v. City of Chicago, 148 111 ., 313. 

Downing v. Blanchard, 12 Wend., 383. 

As to a circus, see 


Orton V. Brown, 35 Miss., 426. 

Harris v. Commonwealth, 81 Va., 240. 

Side shows to which no entrance fee is charged, which are 
maintained to attract patronage for the main performance to 



LICENSES 


37 

which an entrance fee is charged, are included in the license 
of the latter. 

State V. Lundie, 47 La. Ann., 1596. 

Performances given by venders of goods to attract cus- 
tomers are not within the statute. 

People V. Royal, 23 N. Y. App. Div., 258. 

That a “ Flying Jennie ” is a public amusement, see 

Mosby V. State, 98 Ala., 50. 

A merry-go-round was held to be a public amusement re- 
quiring a license, and “ the virtuous character of those amused 
by it is not enough to make an exception to the general words 
of the statute. It is true that the ntunber of persons who 
could ride the wooden horses at any one time was limited, 
but that is true of all amusements. The public was invited, 
and several, if not many, could be accommodated at once. 
There is nothing to show that the number was so small as to 
raise the question whether an amusement which could be 
enjoyed by people only one at a time is public if the public 
comes to and pays for it in such marmer as the nature of the 
diversion permits.” 

Commonwealth v. Bow, 177 Mass., 347. 

§ 32. The Eight of Officials to Q-rant ox Withhold Licenses and to 
Ils the Fiioe Thereof. 

The granting of a license for a public amusement or place 
for the giving of the same is discretionary and may be granted 



38 


LICENSES 


or withheld by the licensing power. The courts will not 
interfere, as it is a matter of pure discretion whether the 
commission or official delegated by statute issues the license 
or not, and is therefore no subject for judicial review. The 
fact that the license is for the place where the enterainment 
is to be given and not for the entertainment itself makes no 
difference. Here the applicant must specify the place as well 
as the purpose, and the inquiry which the licensing official may 
properly institute is not limited to the applicant’s characteri- 
zation of his intended performance. If the purpose is appar- 
ently proper, the official may look beneath the surface and 
ascertain the real purpose, and if, upon investigation, that 
purpose, in his judgment, is inimical to good order and public 
decency, he may properly withhold the license, and even if 
the official’s authority is limited to the place, without regard 
to the purpose, his discretion remains. The locality of play- 
houses, circus pavilions, concert halls, and the like is clearly 
a matter of public concern. The question of the neighborhood 
might be highly important, and that, too, is a question over 
which the licensing power might exercise his judgment. The 
discretion is not reviewable and mandamus will not lie, as 
the court cannot substitute its discretion for that of the 
officer. To do so would be in effect to usurp the power to 
grant the license. 

People V. Grant, $8 Hun, 435. 

People V. Albany, 12 Johns, 414. 

Tool’s Appeal, go Pa. St, 376. 

People V. Wurster, 14 N. Y. App. Div., 356. 

“ A power to grant a privilege to one is inconsistent with 
the possession on the part of another of an absolute right to 



LICENSES 


39 


exercise such privilege. The requirement that a person must 
secure leave from someone to entitle him to exercise a right, 
carries with it, by natural implication, a discretion on the part 
of the other to refuse to grant it, if, in his judgment, it is 
improper or unwise to give the required consent.” 

People V. Grant, 126 N. Y., 481. 

Armstrong v. Murphy, 6s N. Y. App. Div., 123. 

The power of granting a license carries with it an implied 
right to charge therefor, which power may be conferred upon 
some commission or official, the amount to be determined by 
the licensing power, from which there is no appeal. As this 
is an implied right, the court has no power to pass upon the 
fixing of an amount and can only in clear cases of unreason- 
ableness of charge pass in review on that. 

Boston V. Schaffer, 9 Pick., 415. 

Duluth y. Marsh, 71 Minn., 248. 

§ 33. Necessity of Obtainii^ license. 

Where a statute prohibits the use of a place or the giving 
of an amusement, except under a license, such cannot be used 
or given until a license is actually obtained, and courts will 
not interfere with the power vested in municipal bodies and 
officers to grant or refuse such licenses. 


Congregation, etc., v. Committee, 56 N. J. L., 48. 
Bates V. Keith, 66 Vt, 163. 

State y. Commissioners, 57 Oh. St, 86. 

State y. Smith, 49 Neb., 755- 



42 


LICENSES 


The kind of license under discussion is one which is prop- 
erly governed by matters of local consideration involving the 
well-being and peace of a community. No rule of law could 
be framed governing definitely the granting thereof, so of 
necessity the power must be vested in someone who can grant 
or withhold according to his discretion. The case differs 
from that of filling an office where the appointing power 
refuses to act; in such instance the statute is mandatory; in the 
case of an amusement license it is merely discretionary. 

§ 36. Officials Cannot Impose Tax. 

Where it is left to the discretion of an official to grant a 
license and fix its terms, the power must not be abused to the 
extent of charging a fee which is tantamount to imposing 
a tax or compelling the doing of anything prohibited by law. 
A reasonable exercise of discretion is not the proper subject 
for judicial review, but an abuse of such power is. 

In Duluth V. Marsh, 71 Minn. 248, the question arose 
whether a license fee of $125, for six months, imposed by the 
Common Council of the City of Duluth for theatrical per- 
formances was so excessive that the court would be justified 
in holding it was unreasonable and in excess of the police 
power conferred on the Common Council. “ What is a rea- 
sonable license fee, under all the circumstances of the case, 
must be left largely to the sound discretion of the municipal 
authorities; and unless the amount is so manifestly unrea- 
sonable, in view of its purpose as a police regulation, that 
it is apparent that the police power has been abused and 
made a pretext for doing what is forbidden, as, for example, 
imposing a tax, the courts ought not to and will not interfere 
with the municipal discretion. 

“In respect to theatrical exhibitions and amusements of 



LICENSES 


43 


similar character, a larger discretion on the part of munici- 
palities is recognized than in the case of ordinary trades and 
occupations, both because they are liable to degenerate into 
nuisances and also because they require more police surveil- 
lance and police service. 

“ Theatrical and other similar performances are of this char- 
acter, both because of the large number in attendance, and 
also of the crowds (frequently in part of disorderly persons) 
which are liable to congregate in the vicinity of the entrance. 
Such performances in a city of any size usually require the 
attendance of at least one policeman to preserve order. The 
wages of one policeman every time there is a performance 
at a theater, which may be daily, would in six months amount 
to more than the fee required by this ordinance.” 

I 37. Abuse of Power. 

The courts will not interfere in the granting of discretion- 
ary licenses, save in a clear case of abuse of that power, 
either resulting from an error on the part of the official as 
to what he can legally exercise his discretion over or where 
the discretion is abused in such a way as to work an injustice. 

See Spelling’s Injunctions, etc., § 1433 and § 1384 and cases 
cited. 

People V. Wurster, 14 N. Y. App. Div., ss6. 

People V. Grant, 126 N. Y., 473. 

Where there is a clear case of an abuse of discretion 
which works an injustice it may be controlled by mandamus; 
as to just how far discretion may go before it will be arrested 
by mandamus is not clear, and the rule is stated with some 
doubt. The right is, however, recognized in People v. Grant, 
58 Hun, 460, where it is said, by way of dicta, that “ there 



44 LICENSES 

are cases where an abuse of discretion may be controlled 
by mandamus.” 

Village of Glencoe v. People, 78 111 ., 382. 

Topping on Mandamus (Am. Ed.), 66. 

SpeUing's Injunctions, etc. (2d Ed.), § 1433. 

Commonwealth v. Stokely, 12 Fhila. (Pa.), 316. 

Where in terms the statute is not imperative the official 
has discretionary power. “While the mayor may be per- 
mitted to exercise his judgment, his discretion is not unquali- 
fied. A denial of an application for a license may be such 
as to constitute an abuse of power and be subject to review 
and correction by mandamus.” 

People V. Wurster, 14 N. Y. App. Div., 536. 

“ In performing their duties, the board is exercising a quasi 
judicial function, and, so long as it does not art arbitrarily 
and illegally, its determination cannot be coerced through the 
courts through writs of mandamus, so far as they involve the 
exercise of their discretion.” 

Williams v. Dental Examiners, 93 Tenn., 628, citing 
numerous authorities. 

Courts dislike to interfere in matters of discretion and re- 
fuse most generally to do so, leaving it to the designated 
authorities to act or not as their discretion dictates, only inter- 
fering where there is a clear and well-established instance of 
abuse. 

Williams v. Dental Examiners, 93 Tenn., 619. 

State V. Gregory, 83 Mo., 123. 

People V. The Examiners, no 111 ., 180. 

People V. Scully, 53 N. Y. Sup., 125. 

Miles V. State, S 3 Neb., 305. 

Spelling's Injunctions, etc., § 1476. 



LICENSES 


45 

The distinction is very clearly drawn between powers 
purely discretionary, which are not open to mandamus pro- 
ceedings, and instances of duty to grant a license for a specific 
thing set forth by law, where the abuse of the power is in 
the failure to act. In the former instance the courts will 
generally not interfere, in the latter they will in a clear case 
of abuse. 

§ 38. Befnsal to Giant a License. 

The refusal to grant a license is not changed in legal con- 
templation because the licensing board stated it would make 
no objection to the use of the premises for the purpose re- 
quiring a license. The fact of making no objection to an 
unlicensed use of the premises does not import a license, the 
giving of which is a formal and official act, and cannot be 
implied. 

Simpson v. Wood, 105 Mass., 263. 

The license need not be in writing or in formal form; a 
vote of a city renewing a theater license is sufficient, and if 
the proprietors conformed to the conditions of the vote and pro- 
ceeded thereunder, no question as to the validity of the license 
can be considered. 

Boston T. Schaffer, 9 Fide., 418. 

§ 39. license Determining Bight to Use Bnildiag foi Specific 
Purpose. 

The vesting of the sole power to license a theater or place 
of amusement in one official or board is customary and of 
reason, but when the license determines the right to use the 



46 


LICENSES 


building for amusement purposes on the grounds of public 
safety rather than on grounds of morality, serious hardships 
may result in such sole and arbitrary power. Recent fatali- 
ties have led to the passing of rigid laws concerning fire pro- 
tection which have to do with structural conditions as well 
as equipment, and a license to use the building for a theater 
or place of amusement can only be obtained when a certain 
official or board is satisfied that the requirements of the build- 
ing laws have been met, or the building is safe for the 
intended use. These laws necessarily apply to all structures, 
some of which are old and of varying architecture and con- 
dition, both in construction and location. No definite stand- 
ard or line of requirements can be universally applied, and 
some discretion must be allowed or else no old building could 
be made to conform in all respects to such hard and fast rules. 
While one method of protection may be safe, others suitable 
to particular buildings can be devised which are equally so, 
yet no general law could be framed containing enough specific 
provisions to cover the needs of every structure. The impor- 
tant question is one of safeguarding the public, protecting it’ 
in a sound building, with suitable means of egress and rea- 
sonable methods of fire protection properly installed. 

No matter what or where the structure, if this is accom- 
plished the intendment of all protective building laws is satis- 
fied. The application of the law should be within reason, 
and with proper regard to its real intendment. To enforce 
protective legislation to the letter would result in serious in- 
jury and often dqprive the owners of all right to use buildings 
constructed and only fit for a definite purpose. Even here 
the exercise in good faith of discretion in issuing licenses 
can work a serious hardship, through ignorance or misap- 
plied zeal. 



47 


LICENSES 
§ 40. Appeal Should be Provided For. 

Statutes or ordinances are unfair unless providing some 
direct method of appeal to the courts when an official with- 
holds a license and thereby deprives the owner of the right 
to use his property. 

Here is an instance of virtually condemning real estate 
without any provision for damages or relief. Such may not 
have been the intendment of the law-making body ; the result 
is, however, clear. It goes beyond the mere question of refus- 
ing a license for some special entertainment, for others can 
be substituted; it is, in effect, a power to close a place of 
amusement to its intended uses, for a cause which may only 
exist as a theoretical possibility of constructural danger; 
whether mandamus would lie under such circumstances, with- 
out showing actual bad faith, is open to question. In such 
an instance of serious hardship the court might well see fit' 
to grant the remedy as against an unreasonable exercise of 
discretion within the limitation of the rules heretofore stated. 
The decisions, however, show a marked disinclination on the 
part of the courts to interfere in matters where the legislature 
has made the matter of licensing clearly discretionary, and will 
generally only review the question of whether the official or 
board has acted under a wrong construction of the power con- 
ferred, and not as to whether the exercise of the discretionary 
power has been wise or just. 

The application of the rule to a case which in effect is 
really the condemning of property as such, is debatable mat- 
ter and not at all clear in the decisions. 

§ 41. Terms of license Must be Strictly Complied With. 

The terms of the license when issued must be strictly com- 
plied with, and the lessee of a theater does not escape liability 



48 


LICENSES 


under statutes which require of him the enforcement of 
prescribed regulations by allowing another to sublease the 
theater and give performances therein, unless the original 
lessee has absolutely no control or authority over the prop- 
erty and the persons employed therein. 

Allowing another to use the place, with the employees under 
the original lessee’s control, although subject to another’s 
orders, is no bar to liability imposed on the manager by 
statute. He has it in his power to see that the requirements 
of the law are obeyed, and so long as he has that legal right 
he must exercise it in obeying the terms of the statute. The 
responsibility attaches to the one actually though not actively 
in control. 

As illustrative of this principle, in an action for a penalty 
for violation of a statute prohibiting the crowding of passage- 
ways, it was shown that the defendant was the lessee of the 
theater and had sublet to another the right of giving per- 
formances therein. The defendant furnished the ticket sellers, 
ushers, and other attaches^ and paid the same, although they 
were subject to the orders of the one giving the performances, 
and it was by the latter that the persons who crowded the 
passageways at the time complained of were admitted. It 
appeared that a few days previous the officers had called the 
defendant’s attention to a similar violation of the statute, 
and he was cautioned not to allow its occurrence again, and 
promised he would obey the law, and that he was subse- 
quently about the theater when the overcrowding continued. 
Held, that these facts were sufficient to warrant a finding that 
the defendant was liable under the statute for obstructing the 
passageways, as being actually the one in control. 

Fire Dept v. Hill, 14 N. Y. Supp., 158. 

Fire Dept v. Stetson, ubi supra. 



LICENSES 


49 


§ 42. Effect of TTnlioeiised Entertainments on Contracts. 

Matters prohibited unless licensed are in violation of the 
criminal law and subject to such punishment as may be pre- 
scribed in the statute, and such prohibited matters cannot be 
the subject of a legal contract, when the disability is known 
to the parties concerned. Knowledge of the illegality is, how- 
ever, essential, where the matter would be leg^l if licensed. 

In Roys v. Johnson, 7 Gray 162, the defendants without 
first obtaining a license set up theatrical exhibitions in which 
they employed the plaintiff as an actor, and thereby violated 
the law and subjected themselves to punishment. The court 
there says : But it does not appear that the plaintiff knew 
that they had no license. Unless he knew the fact, he is in 
no legal fault; and where a defendant is the only person who 
has violated the law, he cannot be allowed to take advantage 
of his own wrong, to defeat the rights of a plaintiff who is 
innocent. It is the ignorance of a fact, and not of the law, 
that saves the plaintiff's case. He undoubtedly knew, or was 
bound to know, that unlicensed theatrical exhibitions were 
unlawful ; but he was not bound to know that the defendants 
had no license and were doing unlawful acts.” Penal statutes 
of this character are not to affect innocent parties who are 
not participators in the acts made punishable by statute. 

Cranson v. Goss, 107 Mass., 442. 

Frye v. Bennett, N. Y., 324. 

Emery v. Kempton, 2 Gray, 257. 

See post. Illegal Contracts. 

There must, however, have been authority in some person 
or board to license, otherwise there can be no recovery for 
services. 

Stewart v. Thayer, 168 Mass., SiQ- 



so 


LICENSES 


An actor can recover for services rendered in an imm oral 
performance, if the giving of the same is permitted by law, 
and is to that extent protected by the license given the mana- 
ger by whom he is employed, 

Baumeister v. Markham, loi Ky., 122. 

Shelby v. Emerson, 4 Lea. (Tenn.), 312. 

Reg. V. Stmgnell, L. R., i Q. B., 93. 

Statutes compelling the necessity of procuring a license are 
construed to give the licensing board or official discretionary 
power when the phrase “ may license ” occurs. The power im- 
posed becomes mandatory, however, when the words “shall 
grant ” are employed. 

Commonwealth v. Stokelj, 12 Phila. (Pa.) 316. 



DEFINITION OF DRAMATIC PERFORMANCE 
DRAMATIC PORTRAYAL 
NECESSITY OF DRAMATIC ELEMENT 
IMPORTANCE OF ORIGINALITY 
MECHANICAL AND SCENIC CONTRIVANCES 
COMMON-LAW OWNERSHIP IN TITLE 
METHODS OF PROTECTION OF TITLE 




DRAMATIC PERFORMANCE 


'53 


CHAPTER III 

§ 43. Definition of a Diamatie Perfoimanoe. 

The definition of a dramatic performance is broad and com- 
prehensive, covering any representation in which a story is 
told, a motive conveyed or the passions portrayed, whether 
by words and actions combined or by mere actions alone. 
While generally orally spokoi, it may be pantomime without 
uttered words, or an opera where music takes the place of 
ordinary speech, all such, however, being adapted to the stage 
with appropriate scenery and properties for its representation. 

“ A drama is a story represented by action. The represen- 
tation is as if the real persons were introduced and employed 
in the action itself. It is ordinarily designed to be spoken, 
but it may be represented in pantomime, where the actors use 
gesticulation, sometimes in the form of the ballet, but do not 
speak ; or in opera, where music takes the place of poetry and 
of ordinary speech and the dramatic treatment is essentially 
different from either. An opera is defined to be ‘a musical 
drama, consisting of airs, choruses, recitations, etc., enriched 
with magnificent scenery, machinery, and other decorations 
and representing some passionate action.’ — Webster. The 
spoken drama, therefore, and the opera agree in the method 
or manner which is essential to the dramatic art, viz., 
imitation in the way of action. In the former, it is true, the 
actor observes the rules of rhetoric and of oratory and follows 
the special laws of dramatic delivery, while in the latter, 
he employs the power of music, both vocal and instrumental. 



54 


DRAMATIC PORTRAYAL 


as a medium of artistic and passionate expression; music, 
however, which is not arranged with reference mainly to its 
melodic interest, but in such form as to express, not only the 
words, but the thought, emotions and passions of the mind, 
such as joy, grief, hope, despair, etc., which the idea or 
conception of the play may involve. The word-setting, the 
orchestration, the musical intervals and the composition gen- 
erally, are all arranged to serve the exigency of the passing 
sentiment and to turn the subject of the story into the action 
of the play; in short, the opera is composed with special refer- 
ence to the declamatory power of music, 

“ The opera is essentially and in every point of view a dra- 
matic composition and its representation a dramatic exhibi- 
tion. The opera house and the theater alike comprehend the 
stage, proscenium, boxes, orchestra, pit or parquet, and the 
galleries; the scenic representation is of the same general 
character, and the stage machinery and decorations of the 
same order. The ordinary theater is adapted to the per- 
formance of the opera, and it is well known that this form of 
exhibition, especially of the light opera and opera comique, 
rendered ‘partly in song and partly in dialogue,’ forms in 
these days a permanent feature of theater work. 

“ Therefore, there is no ground of legal distinction between 
the spoken and the lyrical drama which would justify the 
exaction of a legal license fee from one and the exemption 
of the other.” 


Bell y. Mahan, 121 Fa. St, 225. 

§ 41 Sramatio Portrayal Must Embody the Element of Htiman 
Life. 

The question of the dramatic portrayal which is the basis 



THEATER AND CIRCUS CONTRASTED 55 

of a dramatic performance depends entirely on the personal 
theme or element as therein represented, which theme must 
be carried out by action portraying or representing some phase 
of human life. This does not depend on spoken words, for 
it may be uttered and portrayed by pantomime or even by 
marionettes if accompanied by dialogue, carried on by unseen 
but living persons. 

Lee V. Simpson, 3 C B., 871. 

Daly V. Palmer, 6 Blatchf., 256. 

Day V. Simpson, 18 C. B. (N. S.), 680. 


Lacking the phase of representing some element of human 
life, there is no dramatic composition; for this reason a 
tumbling or fencing exhibition, a circus, a skating exhibition, 
costume dance, or feats of legerdemain, although full of 
action, does not constitute a dramatic performance. 


Rex V. Handy, 6 T. R., 286. 

Harris v. Commonwealth, 81 Va., 240. 

§ 45. Theater and Circus Contrasted. 

“ Although the term ‘ theater ’ has an extended significa- 
tion and comprehends a variety of perfomances, yet it is 
conceived that all which it does legitimately comprehend par- 
takes more or less of the character of the drama. The term 
drama, as defined by Mr. Webster, means o poem or composi- 
tion representing a picture of human life and accommodated 
to action. It may be conceded that its signification is broad 
enough to cover any representation in which a story is told, 
a moral conveyed, or the passions portrayed, whether by 
words and actions combined, or by mere actions alone ; yet it 
would by no means follow that the terms ‘ theater ’ and ‘ dr- 



56 DRAMATIC COMPOSITION 

cus’ were S3monymous or convertible terms. The dramatic 
performances which are recognized as belonging to a theater 
are those adapted to the stage, with the appropriate scenery 
for their representation. The stage, with its machinery and 
appurtenances, forms an essential element in the definition 
of the term * theater.’ A circus, on the other hand, has no 
stage, but a ring, and the performances are of a character 
and can take place in the circle, in the absence of the stage 
and its appurtenances. They may both be arranged under 
the general term 'amusements,’ but differ from each other 
as one species differs from another under the same genus. It 
may often be difficult to trace the dividing line between the 
terms theater and circus from the character of their exhibi- 
tions, but there can be none whatever in distinguishing the 
difference between the usual performances of a theater and 
an exhibition of feats of sleight of hand or legerdemain. The 
latter cannot be said to be a dramatic performance in any 
legitimate sense of that term.” 

Jacko V. State, 22 Ala., 73. 

§ 46. Dramatic CompositioiL Defined. 

The words dramatic composition have received liberal con- 
struction, both in settling rights of ownership thereto at com- 
mon law or establishing what is embraced within their mean- 
ing for the purposes of copyright. The definition of what 
may properly be classed as dramatic composition is of material 
aid in determining what a dramatic performance is, the 
latter depending on the former, as there can be no perform- 
ance of a dramatic nature unless it consists of the portrayal 
of a dramatic composition. 

We have already considered the extreme limit of the appli- 



DRAMATIC COMPOSITION 


57 


cation of this definition, and while a pantomime in which the 
meaning is made plain by appropriate gestures is adjudged 
dramatic because it would produce the emotions which are 
the purpose of the regular drama, yet a dance full of vigorous 
action, with attractive costumes, lights and shadows, illustrat- 
ing the poetry of motion by a series of steps, poses and move- 
ments, is not dramatic, as it tells no story, portrays no char- 
acter and depicts no real emotion. 


Puller V. Bemis, 50 Fed., 926. 
Carte v. Duff, 23 Blatchf., 347. 


§ 47. Application of tlie Definition. 

The mechanical arrangement on a stage of water flowing 
into a tank, wherein the villain fell from a bridge, is not a 
dramatic composition, being more mechanical than human in 
its elements. 


Serrana v. Jefferson, 33 Fed. R-, 347. 

See, however, Daly v. Palmer, 6 Blatchf., 256, wherein a 
railroad scene involving the use of a track and engine in 
conjunction with human action was held to be sufficiently 
dramatic in matter of composition. See, also, Daly v. Web- 
ster, 56 Fed. Rep., 483, which had to do with the play “ Under 
the Gaslight.” In confirming the decision in Daly v. Palmer, 
the court says: “ In plays of this class the series of events are 
the only composition of any importance. The dialogue is 
unimportant and as a work of art, trivial. The effort of the 
composer is directed to arranging for the stage a series of 
events so realistically presented and so worked out by the 
display of feeling or earnestness on the part of the actors 



58 


DRAMATIC COMPOSITION 


as to produce a corresponding emotion in the audience. Such 
a composition, though its success is largely dependent upon 
what is seen, irrespective of the dialogue, is dramatic. It 
tells a story which is quite as intelligible to the spectator as 
if it had been presented to him in a written narrative. The 
mere exhibition of mechanical appliances to represent inci- 
dents is not to be included within this classification. There 
must be a series of events, dramatically represented in a cer- 
tain sequence or order. In other words, there must be a 
composition, i. e., a work invented and set in order, a work 
of various parts and characters, which, when put upon the 
stage, is developed by a series of circumstances.” 


§ 48. A Stt^e Dance Not a Dramatie Composition. 

In Fuller v. Bemis, 50 Fed. Rep. 926, Loie Fuller attempted 
to protect a stage dance as a dramatic composition under the 
copyright laws, depending upon a copyrighted composition 
describing “ The Serpentine Dance by Marie Louise Fuller.” 
The composition was explicit and described every movement 
and step of said dance, the arrangement of lights, the music, 
etc., etc. In determining that such dance was not a dramatic 
composition and not subject to copyright protection the court 
said : “ It is essential to such a composition that it should tell 
some story. The plot may be simple. It may be but the 
narrative or representation of a single transaction, but it must 
repeat or mimic some action, speech, emotion, passion, or 
character, real or imaginary, and when it does it is the ideas 
thus expressed which become subject of copyright. The merely 
mechanical movements by which effects are produced on the 
stage are not subjects of copyright where they convey no ideas 
whose arrangement makes up a dramatic composition. Surely 



NECESSITY OF DRAMATIC ELEMENT 59 

these described and practiced here convey and were devised to 
convey to the spectator no other idea than that a comely 
woman is illustrating the poetry of motion in a singularly 
graceful fashion. Such an idea may be pleasing, but it can 
hardly be called dramatic.” 

The court also comments on the case of Daly v. Palmer, 
which is sometimes cited as upholding a different rule. 

§ 49. The Necessity of Biamatic Element. 

While the courts have construed the copyright statutes 
liberally, in this respect, it still is necessary that the composi- 
tion have the dramatic element present in a suitable form for 
representation, and capable of producing those emotions of 
human life which are the attributes of the drama, and within 
the meaning of its definition. Such emotions may be sad 
or gay, tragic or commonplace, for all these in their varying 
degrees are a reflection of some phase of life either unusual 
or general. 


Russell V. Smith, 12 Q. B., 217. 

Daly v. Webster, $6 Fed., 483. 

Daly v. Palmer, 6 Blatchf., 256. 

In Russell v. Smith the court construed the “ dramatic 
pieces ” as enacted in the statutes of 5 and 6 Victoria Chap. 
42, section 2. That case concerned a song called “ The Ship 
on Fire,” which related the burning of a ship at sea and gave 
a vivid description of the sufferings of those who escaped; 
this was sung by one person who played his own accompani- 
ment on a piano. No costume or scenic setting was employed. 
This was found to be matter sufficiently dramatic to bring it 
within the meaning of a statute which comprehended “any 



6o 


DRAMATIC COMPOSITION 


piece which could be called dramatic.” Though in Barnes 
V. Miner, 22 Fed. 480, it was held that the singing of well- 
known songs by an artist, with a kinetoscope which was dis- 
played during the interval of her change of costume, was not 
such a dramatic composition as to be subject for copyright. 

§ 50. Scenery Not a Dramatic Composition. 

Divested of the person or the human dialogue the scenery 
and properties alone do not constitute a dramatic composi- 
tion, no matter how elaborate, novel or unique they are. 
These make but a picture which, though moving and beauti- 
ful, attractive to the eye and satisfying to the senses, are, like 
a dance, merely spectacular, and devoid of that which is 
defined as dramatic, or of human interest. It lacks the human 
element which gives it dramatic life. 

Lee V. Simpson, 3 C B., 871. 

Martinetti v. Maguire, Deady, 218. 

See post, § 97, et seq. 

This element of human interest, which to a greater or less 
extent must enter into all dramatic compositions, depends 
entirely on some physical personal connection with the piece 
enacted, which shows some mentally evidenced thought appeal- 
ing directly to the heart or intellectuality of the spectator. 
The person who speaks or controls need not be visible, as in 
the performance of marionettes, nor need he utter words 
when in view, as a clown in a pantomime, for the voice 
explaining the action and gestures of the marionette and the 
mind working through the pantomime art of the clown, both 
illustrate some feature of life with its story of human interest. 
Such is not true of a dance or a superb picture produced by 
scenic art; both may be satisfyingly beautiful, but neither is 
dramatic. To act in the sense of the statute, is to represent 
as real, by countenance, voice or gesture, that which is not 



COPYRIGHT 


6i 


real. A character in a play who goes through with a series 
of events on the stage without speaking, if such be his part 
in the play, is none the less an actor than one who, in addition 
to motions and gestures, uses his voice. A pantomime is a 
species of theatrical entertainment in which the whole action 
is represented by gesticulation, without the use of words. 
A written work, consisting wholly of directions, set in order 
for conveying the ideas of the author on a stage or public 
place, by means of characters who represent the narrative 
wholly by action, is as much a dramatic composition designed 
or suited for public representation as if language or dialogue 
were used in it to convey some of the ideas.’* 

Daly V. Palmer, 6 Blatchf., 264. 

§ 51. Wliat May be the Subject of Copyr^rbt as a Dramatic Com- 
position. 

As we have seen, only such matters as include a performer 
or human dialogue and portray emotion can be classed as 
dramatic performances; a more liberal rule has been laid 
down as to what may be protected as a dramatic composition 
under the copyright law. Hence the necessity of considering 
them separately. 

In 1897 Congress enacted that an unlawful presentation 
of a play or musical composition should be punished by a 
certain money penalty, and if the performance was willful and 
for profit it should be a misdemeanor punishable by imprison- 
ment not exceeding one year. Further, the property in uncopy- 
righted dramatic and musical compositions, for a long time 
recognized at common law, has in several States been pro- 
tected by statute. 

See post, § 80, et seq. 

U. S. Rev. Statutes, § 4967. 

Goldmark v. Kreling, 25 Fed. Rep., 349. 



62 


NECESSITY OF ORIGINALITY 


§ 52. Importance of Originality. 

Originality is the keynote of copyright, for it only protects 
such matter as has been created by the author; it must not 
be imitated or copied from another’s work, nor be immoral 
in its nature. 

The originality of the idea, work, composition or arrange- 
ment is what copyright was created to protect and is the 
test of all decisions thereunder, without which no protective 
action can be successfully maintained at law or in equity. 

Bartlett v. Crittenden, 5 McLean, 32. 

Reed v. Canisi, Taney, 72. 

"JolHe V. Jacques, i Blat^f., 61& 

Emerson v. Davies, 3 Story, 768. 

Egbert v. Greenberg, 100 Fed., 447. 

Broder v. Zeno Mauvais Music Co., 88 Fed., 74 - 

Brady v. Daly, 83 Fed., 1007. 

§ 53. 0x4>uiality Hay Consist of Arrangement. 

“ Copyright may justly be claimed by an author who has 
taken existing materials from sources common to all writers, 
and arranged and combined them in a new form and given 
them application unknown before, for the reason that in so 
doing he has exercised skill and discretion in making the 
selections, arrangement and combination; and, having pre- 
sented something that is new and useful, he is entitled to the 
exclusive enjoyment of his improvement as provided in the 
copyright act” 

Lawrence v. Dana, 4 Clifford, 75. 

Gray v. Russell, i Story, ii. 

Lewis V. FuUarton, 2 Beav., 6. 


A rearrai^ement of old matter, new words to an old air. 



COPYRIGHT PROTECTION 63 

or a new air to old words are matters which may be copy- 
righted as sufficiently orighMJ. 


Leader v. Purday, 7 C. B., 4. 

Reed v. Carusi, Taney, 72. 

Aronson v. Fleckenstein, 28 Fed. Rep., 75. 

Atwill V. Ferret, 2 Baltchf., 39. 

“ Generally speaking, authorship implies that there has been 
put into the production something meritorious from the 
author’s own mind; that the product embodies the thought 
of the author as well as the thought of others ; and would not 
have foimd existence in the form presented but for the dis- 
tinctive individuality of mind from which it sprang.” 


National Td., etc, Co. v. Western, etc., Co., 119 Fed., 294. 


§ 54. Scenic Effects Constitating links in a Chain of Incident 
Speech and Action as the Subject of Copyxqfht. 

A scene, portraying some particular idea in conjunction 
with a play, a written synopsis of directions conveying the 
author’s ideas by means of characters representing the ener- 
getic wholly by action, the arrangement of new words to an 
old time or a new score to an already written opera, an orig- 
inal scene, or some innovation of a mechanical nature clearly 
associated with the production, are all matters properly pro- 
tected by copyright as dramatic or musical compositions. 

Daly V. Webster, 56 Fed., 483. 

Daly T. Palmer, 6 Blatchf., 256. 

Atwill V. Ferrett, 2 Blatchf., 39. 

Jollie T. Jacques, i Blatchf., 216. 



64 DALY V. PALMER 

§ 55. The Doctrine of Daly t. Palmer. 

In Daly v. Palmer, 6 Blatch. 256, concerning Dal3r*s play 
“After Dark,” Blatchford, J., delivering the opinion, said: 
“Boucicault has, indeed, adapted the plaintiff’s series of 
events to the story of his play, and in doing so has evinced 
skill and art; but the same use is made in both plays of the 
same series of events, to excite by representation the same 
emotions in the same sequence. There is no new use, in the 
sense of the law, in B’s play of what is found in the plaintiff’s 
‘ railroad scene.’ The ‘ railroad scene ’ in B’s play contains 
everything which makes the ‘ railroad scene ’ in the plaintiff’s 
play attractive as a representation on the stage. As in the 
case of a musical composition, the air is the invention of the 
author, and a piracy is committed if that in which the whole 
meritorious part of the invention consists is incorporated in 
another work, without any material .alteration in sequence 
of bars ; so in the case of a dramatic composition designed or 
suited for representation, the series of events directed in writ- 
ing by the author, in any particular scene, is his invention, 
and a piracy is committed if that, in whidi the whole merit 
of the scene consists, is incorporated in another work without 
any material alteration in the constituent parts of the series of 
events, or in the sequence of the events in the series. The 
adaptation of such series of events to different characters 
who use different language from the characters and from the 
language of the first play is like the adaptation of the musical 
air to a different instrument, or the addition to it of variations 
or of an accompaniment. The original subject of invention, 
that which required genius to construct it and set it in order, 
remains the same in adaptation. A mere mechanic in dra- 
matic composition can make such adaptation, and it is a piracy 



MECHANICAL CONTRIVANCES 65 

if the appropriated series of events when represented on the 
stage, although performed by new and different characters, 
using different language, is recognized by the spectator 
through any of the senses to which the representation is 
addressed, as conve3ring substantially the same impression 
to and exciting the same emotion in the mind in the same 
sequence or order. Tested by these principles, the ‘ railroad 
scene ’ in B’s play is undoubtedly, when acted, performed, or 
represented on a stage or in public place, an invasion or 
infrii^ement of the copyright of the plaintiff in the ‘ railroad 
scene ’ in his play. The substantial identity between the two 
scenes would naturally lead to the conclusion that the later 
one had been adapted from the earlier one.” 

§ 56. Adaptation is Subject of Ownership. 

An adaptation of a published play, a foreign drama or an 
opera will be protected because of new and original results 
which the adapter has obtained by his own work. 


Aronson v. Fleckenstein, 28 Fed., 75. 

French v. Maguire, 55 How. Pr., 471. 

§ 57. Uechanical Contrivances as Fart of a llramatio Composition. 

An isolated scene or picture, a mechanical contrivance 
merely incident to a play, or a novel treatment of certain 
stage properties is not the subject of copyright as a “ dramatic 
composition ” unless it can be fairly considered as some neces- 
sary or vital part of that which, coupled with the words and 
action of the performance, goes to make up the play or drama 
in its entirety. It must be an int^fral part or reasonable inci- 
dent of the composition to be considered dramatic in nature 



66 


COMMON-LAW OWNERSHIP 


and a part of the drama itself. The element of fitness -.must 
be found, otherwise it is merely incident to and not a part of 
the dramatic composition. 

In Serrana v. Jefferson, 33 Fed. 347, the plaintiffs used 
in the play “ Donna Bianca, or Brought to Light,” a real tank 
three feet square and seven feet deep filled with natural water, 
which was made to represent a river, and the plaintiffs sought 
to protect the same under the copyright act as an original 
composition. The court said: “There is nothing original in 
the incident thus represented on the stage. Heroes and hero- 
ines, as well as villains of both sexes, have for a time whereof 
the memory of the theatergoer runneth not to the contrary, 
been precipitated into conventional ponds, lakes, rivers, and 
seas. So frequent a catastrophe may fairly be regarded as the 
common property of all pla3rwrights.” 

§ 58. Common-Law Ownership in Compositions. 

The common law recognizes a right of ownership in com- 
position and ideas. The same property or title which is pro- 
tected in a tangible thing is in the same degree protected in 
a dramatic or musical production, a song, a verse, a mechani- 
cal or original scene, a method or contrivance of stage craft, 
and so long as its originator or owner keeps it to himself and 
does not dedicate it to the public he can protect its use 
perpetually at the common law. There must, however, be 
originality in the thing in toto or at least in some important 
part. It is the personal idea which is alone recognized as 
the subject of individual ownership. This is his to do with 
as he pleases; in it he has absolute title, and his right therein 
is fully protected. 

That the artisan has a right to the thing he builds or molds 



COMMON-LAW OWNERSHIP 


67 


•with his hands is apparent, and the attempt to take it from him 
is readily recognized as wrong, both in the civil and criminal 
law. His work has created a thing which has shape and sub- 
stance. To the same extent must be recognized a protection 
for the work evolved from the brain of man in the form of 
a literary production, a play, an opera, a song, or a stage 
or scene contrivance. A thing copyrighted has protection, 
but it is also dedicated to certain uses of the public, and 
although still the property of its creator, can be used by the 
public in ways depriving the author of his proper recompense. 

The author of a book or poem copyrights and publishes his 
work; he is protected to the extent of deriving the proceeds 
of its sale, but the work cannot be copied or sold save ‘by 
those having his authority. The nature of such work is only 
profitable when published and oflfered to the public. This, 
however, is no protection to the playwright or composer. His 
profit is derived from a production by those who will give 
him a price or royalty for its use. Its general sale and pub- 
lication as a copyrighted play or composition would at once 
defeat his principal source of income and make his work 
valueless. In such cases the exclusive use constitutes its sole 
value. The original song, sketch, or Joke of a performer, 
the mechanical device and treatment of some scene or situa- 
tion originated by a producer, would at once lose all value 
if after a public use it could be copied in whole or in part by 
anyone else. 

The provision of the cop3night law as to plays and musical 
compositions is generally the same as provided for books. To 
obtain the copyright of a play it must be priirted and copies 
deposited in Washingtoa As a result plays are not copy- 
righted, for the printing would make them public property, and 
their value, apart from the purely literary aspect, would be 



68 


PROTECTION OF TITLE 


nothing. As a matter of practice and protection they remain 
in manuscript, each part with the connecting cues being dis- 
tributed among the players who are to perform therein. 

See “ Law for Playwrights,” 8 So. L. Rev., N. S., 13. 

§ 59. Title, How Frotected. 

The title to a play is a proper subject of copyright and will 
be protected, although the full text of the play itself is not 
printed nor copies deposited in Washington. See post, § 105. 
But there should be no variance between the title as deposited 
and as finally used. Mr. Daly, years ago, filed and secured 
a copyright to the title of a play called “ Under the Gas Light, 
a Romantic Panorama of the Streets and Homes of New 
Yoric.” He produced it as " Under the Gas Light, a Drama 
of Life and Love in these Times.” Twice this was the subject 
of contention before the courts, and both times it was held 
that the variance was fatal. Later, however, the court 
reversed these former decisions and, rejecting the descriptive 
words, held that the title was merely the words “ Under the 
Gas Light,” and upheld the copyright. 


Daly V. Brady, 39 Fed. Rep., 265. 

Daly V. Webster, 47 Fed. Rep., 903. 

Daly V. Webster, 56 Fed. Rep., 483. 

In another case the question arose as to whether the title 
“ Pianoforte arrangement of the Comic Opera The Mikado 
or the Town of Titipu, Tjy W. S. Gilbert and Sir Arthur 
Sullivan ” was a variance from the title “ Vocal Score of the 
Mikado or the Town of Titipu.” See post, § 104. 


Carte v. Evans, 27 Fed. Rep., 861. 



PROTECTION OF TITLE 


69 


§ 60. Hethod of Protecting Title. 

The protection of a title is accomplished by depositing a 
printed copy of the title page of the play, though the play 
itself is never published, and the two copies required by law 
never deposited. See post, § 104. 

“ The letter of the law does not require the book to be 
filed to confer a copyright, and it seem to be assumed through- 
out all of the statutes that a copy of the book will, and must, 
within a short time after filing the title page, be filed with 
the Librarian of Congress.” 

Boucicault v. Hart, 13 Blatchf., 47. 

Revised Statutes, United States, § 4956. 

The rights of a complainant to a copyright, if any he has, 
are conferred by the Constitution and the statutes of the 
United States. It is there we must look for them, and unless 
there found, they do not exist. If conditions are imposed by 
statute, as preliminary to the existence of such rights, their 
performance must be shown. All the conditions clearly 
imposed by Congress are important, and their performance is 
essential to a perfect title.” 

Boucicault v. Hart, 13 Blatchf., 47. 

Wheaton v. Peters, 8 Peters, 657. 




OWNERSHIP IN PLAY OR MUSICAL PUBLICATION 
HOW PROTECTED CIVILLY AND CRIMINALLY 
PUBLICATION DEFINED 

PERFORMANCE OF PLAY DOES NOT CONSTITUTE 
PUBLICATION 

ABANDONMENT 

RIGHT TO REPEAT OR RECITE FROM PLAY 
PLAY MUST BE MORAL AND NOT LIBELOUS 

LIABILITY FOR WRONGFUL USE OF UNPUB- 
LISHED COMPOSITIONS 




OWNERSHIP IN COMPOSITION 


73 


CHAPTER IV 

§ 61. Ownership in Hay or Hnsieal Compositioii. 

The common law has long recognized title or ownership in 
a dramatic or musical composition, and authors are protected 
in the exclusive right of their literary, musical, or intellectual 
productions, with the enjoyment of the pecuniary benefits 
derived therefrom. This is a well-settled proposition and 
applies to all plays or other compositions which have not been 
dedicated to the public either by publication or abandonment ; 
the author has a right of property or title in his original manu- 
script and its contents of words, ideas, sentiments, characters, 
arrangements, combinations, description, dialogue, and their 
connection one with another. Just as the author has a right of 
ownership in his play, the composer in his opera, so has a 
dancing instructor ownership in an arrangement of steps, 
positions, and figures, the producer of plays to his scenes, 
situations, and mechanical devices, the vaudeville artist to 
his original matter and specialty act, and the pantomimist to 
his scheme of silent story as worked out by action and gesture. 
The originality of the tiling, though intangible, is an incorpo- 
real matter capable of ownership and given full protection 
at the common law. This right exists independent of stat- 
utes concerning copyright, and should be considered inde- 
pendently. 

Boucicault v. Hart, 13 Blatchf., 47. 

Boucicault v. Fox, 5 Blatchf., 87. 

Crowe V. Aiken, 2 Biss., 208. 

Palmer v. DcWitt, 47 N. Y., 532. 



74 


PROTECTION OF TITLE 


“ This property in a manuscript is not distinguishable from 
any other personal property. . It is governed by the same 
rules of transfer and succession and is protected by the same 
process and has the benefit of all the remedies accorded to 
other property as far as applicable. It is personal, as other 
movable property, personal in legal contemplation, following 
the person of the owner, and is governed by the law of his 
domicile.” 

Palmer v. DeWitt, 47 N. Y., 532. 

§ 62. Protection at Common law and Under Copyr^rht. 

The common law provides protection which cannot be 
obtained under our copyright law. Many things in the way 
of original ideas, devices, and systems are not subject to copy- 
right r^stration and protection under the copyright law and 
its construction by the courts. Advertisements, advertising 
devices and novelties, contracts, cuts for advertisements, 
dances, form of words, ideas, mechanical devices, names of 
companies, stage names, professional names, stage scenery, 
specialty acts, stage business, stage scenes, systems, and tick- 
ets, though capable of ownership and having a title which 
the common law protects, are not subject to copyright regis- 
tration and protection. 

Ideas, methods, schemes, and systems, as such, are not sub- 
ject to registration for copyright protection, and yet these 
very matters are the underlying basis of much which is valu- 
able and profitable in stage business, and when original are 
capable of ownership, but though protected at common law, 
have no standing in the sense of a copyrightable thing. 

A man’s sole ownership in any Original and unpublished 
manuscript of a play or musical composition, and his sole 
property in the use of that manuscript, whether to play, read. 



PRESENTATION NOT PUBLICATION 75 

or sing it himself or to have it played, read, or sung by other 
people in a theater or elsewhere, is fundamental law. 

This was the law of England until 1845, when its copy- 
right act destroyed such form of property. In the United 
States the common law still prevails and recognizes this kind 
of property, which is not affected by the copyright law. 

§ 63. A Fresentatioii on the Stage is Not a Publication. 

The very important question as to ownership and title 
to a play which had been publicly performed arose in the early 
case of Keene v. Kimball, 16 Gray (Mass.), 545, which in- 
volved the rights to Tom Taylor’s play of “Our American 
Cousin.” Taylor gave to Laura Keene, the lessee and mana- 
ger of Laura Keene’s Theater, an absolute bill of sale and 
assig^iment of the comedy and delivered thereimder the manu- 
script. Laura Keene presented this comedy at her theater 
continuously for five months, when the proprietor of the 
Boston Museum attempted a production of the same play 
without any right to do so from either Taylor or Keene. And 
although the doctrine established in this case was subsequently 
reversed in Tompkins v. Halleck, 133 Mass. 32. it is interest- 
ing to note what the court said in respect of ownership in 
dramatic compositions. “We can entertain no doubt that a 
dramatic composition is equally under the protection of law 
with any other literary work. Courts will not interfere to 
vindicate the claims of any party to the exclusive enjoyment 
or disposal of an immoral or licentious production; but the 
particular application once made of this rule of the common 
law, in conformity with the peculiar opinions, sentiments, or 
prejudices of one generation of men, will not control its appli- 
cation in a state of society where different views prevail. If 



76 


THE AUTHOR’S TITLE 


our ancestors prohibited all scenic exhibitions it was because 
they r^arded them as immoral and pernicious. If we do not 
so r^fard them, the reason ceasing, the rule ceases with it 
“ An author has at common law a property in his unpub- 
lished works, which he may assign, and in the enjoyment of 
which equity will protect his assignee as well as himself. 
This property continues until, by publication, a right to its 
use has been conferred upon or dedicated to the public. 

“ The representation of a dramatic work upon the stage is 
not a publication which will dq)rive the author or his assignee 
of this right of property.” 

The court, however, went too far in this case; for after 
stating the doctrine which still prevails as to ownership, it 
attempted to establish a right in anyone to reproduce the 
same, provided he solely depended on his memory for so 
doing, and quite erroneously decided that Laura Keene’s pro- 
duction could be copied by Kimball as a matter of right, as 
there was no property in gestures, tones, or scenery which 
would forbid such production if produced from memory solely. 

The illogical element of this decision is apparent, as it 
really destroyed the ownership which it recognized as a matter 
of common law right. For if anyone by aid of memory could 
reproduce and use whatever he saw, no ownership would be 
of any possible value. Such, however, remained the law in 
Massachusetts and elsewhere until the question again arose 
in Tompkins v. Halleck, 133 Mass. 32 
Here was involved the right to a drama called “ The World.” 
It appeared in evidence that this play was originally written 
in England, where, after presentation, it was sold to one 
Colville in New York, who caused it to be altered in some 
particulars by one Stevenson. It was successfully represented 
in New York and then sold to the plaintiffs with the exclu- 



TOMPKINS V. HALLECK 


77 

sive right to present the same in the New England States. 
The drama had never been copyrighted or printed. 

While represented at Wallack’s Theater in New York one 
Byron and one Mora attended the performance on several 
occasions with the intent of copying and reproducing the 
drama. Byron committed as much of the play as he could 
to memory and after each performance dictated to Mora until 
the copy was completed. Byron subsequently made an ar- 
rangement with the defendant to produce the same and as 
produced it was called “The World,” and was found to be 
in all substantial particulars identical with the plaintifFs 
drama of the same name. This was directly following the 
decision in Keene v. Kimball, and in the line of its sug^stions. 

In overruling the doctrine established in Keene v. Kimball 
and stating the law as it now stands, the court says: “ That 
the right of property which an author has in his works con- 
tinues rmtil by publication a right to their use has been 
conferred upon or dedicated to the public, has never been 
disputed. If such publication be made in print of a work 
of which no copyright has been obtained, it is a complete 
dedication thereof for all purposes to the public. If of a 
work of which a copyright has been obtained, it is so dedi- 
cated, subject to the protection afforded by the laws of copy- 
right, the author accepting the statutory rights thereby given 
in place of his common-law rights. But the representation 
of an unprinted work upon the stage is not a publication 
which will deprive the author or his assignee of his rights of 
property therein. It will not interfere with his alaim to obtain 
a copyright therefor. Nor will it deprive him of his power 
to prevent a publication in print thereof by another. Nor 
can we perceive why it should deprive him of his right to 
restrain the public representation thereof by another. 



78 TOMPKINS V. HALLECK 

“A theory that the lawful right to represent a play may 
be acquired by the exercise of the memory, but not through 
the use of stenography, writing, or notes, is entirely unsatis- 
factory. It is not easy to rmderstand why the author by 
admitting the public to the performance of his manuscript 
play any more concedes to them the right to exercise their 
memory in getting possession of his play for the purpose of 
subsequent representation than he does the privilege of using 
writing or stenography for that purpose. The spectator of 
a play is entitled to all the enjoyment he can derive from its 
exhibition. He may make it afterward the subject of con- 
versation, of agreeable recollection, or of just criticism, but 
we cannot perceive that in paying for his ticket of admission 
he has paid for any right to reproduce it. The mode in which 
the literary property of another is taken possession of cannot 
be important. The rights of the author cannot be made to 
depend merely on his capacity to enforce them, or those of 
the spectator on his ability to assert them. One may abandon 
his property, or may dedicate it to the use of the public ; but 
while it remains his, the fact that another is able to get posses- 
sion of it in no way affects his rights. 

“ The special use of his play made by the author, for his 
own advantage, by a representation thereof for money, is not 
an abandonment of his property nor a complete dedication 
of it to the public, but is entirely consistent with an exclu- 
sive right to control such representation. If the spectator 
desires, there is no reason why he should not be permitted to 
take notes for any fair purpose ; as, if he is a dramatic critic, 
for fair comment on the production, which is offered to the 
favorable consideration of the public; or, if a student of 
dramatic literature, for comparison with other works of this 
class. The taking of notes in order to obtain a copy for 



PUBLIC PERFORMANCE OF PLAY 79 

representation is a different matter; it is the use intended to 
be made that renders it proper to restrain such an act. The 
ticket of admission is a license to witness the play, but it 
cannot be treated as a license to the spectator to represent the 
drama if he can by memory recollect it, while it is not a license 
so to do if the copy is obtained by notes of stenography. In 
whatever mode the copy is obtained, it is the use of it for 
representation which operates to deprive the author of his 
rights.” 

§ 64. Value of Play to Author ITot limited to One Performance. 

The same doctrine prevailed in Palmer v. DeWitt, 47 N. Y. 
532. “ The value to the author of a play or of a lecture, who 
derives emolument from its delivery or representation before 
public audiences, is not limited to one performance. It may 
extend to any greater number, and the hundredth performance 
may bring more ample returns than the first, so that it may 
be fairly assimied that it is not intended, in any case, to sur- 
render property in a literary composition so long as the 
author of it retains it in manuscript and uses it before the 
public for his private pecuniary benefit” 

“ It seems to me that any surreptitious procuring of the 
literary property of another, no matter how obtained, if it 
was unauthorized and without the knowledge or consent of 
the owner, and obtained before publication by him, is an 
invasion of his proprietary rights, if the property so obtained 
is made use of to his injury.” 

“ The objection is not to the committing a play to memory, 
for over that no court can exercise any control, but in using 
the memory afterward as the means of depriving the owner 
of his property. Such use, it seems to me, is as much an 



8o 


LEGAL PUBLICATION 


infringement of the author’s common-law right of property 
as if his manuscript had been feloniously taken from his 
possession.” 

That a representation of, a play or opera is not a publication, 
and that the common-law ownership continues, see 


Boucicault v. Hart, 13 Blatchf. (U. S.), 47. 

Roberts v. Myers, 23 Monthly Law Rep., 396. 

Palmer v. DeWitt, 47 N. Y., 532. 

Crowe V. Aiken, 2 Biss., 208. 

Boucicault v. Fox, 5 Blatchf., 87. 

Shook V. Rankin, 6 Biss., 477. 

Tompkins v. Halleck, 133 Mass., 32. 

Gilbert v. Bacher, 9 W. N. C. (Pa.), 14. 

§ 65. Tiolation of Common-Law Bights. 

The publication or representation of a play acquired with- 
out the author’s consent by means of phonographic reports, 
theft, or other surreptitious means is such a violation of the 
common-law rights of ownership as will entitle the owner to 
an injunction restraining such improper use. 

Macklin v. Richardson, Ambl., 694. 

Crowe V. Aiken, 2 Biss., 208. 

Tompkins v. Halleck, 133 Mass., 32. 

French v. Maguire, 55 How Pr., 471. 

Keene v. Wheatley, 4 Phila. (Pa.), 157. 

Shook V. Daly, 49 How Pr., 366. 

Post, Chapter 24, Injunctions. 

Ante, § 63. 

Thomas v. Lennon, 14 Fed. Rep., 849. 

§ 66. Presentation of Play Not Legal Publication. 

The presentation of a play or other matter capable of 
ownership is not a publication, and therefore no dedication to 



NOTICE NOT NECESSARY 8i 

the public. The author has a right to use his creation for 
profit, and so long as it is confined to manuscript form or oral 
direction or instruction his rights continue. He cannot, how- 
ever, publish his play or music and stipulate its private and 
not public uses. There can be no partial dedication. He may 
lease his rights and allow productions in many places, without 
destroying his ownership. Once placed on actual sale, though 
but one copy is sold, his rights cease and no further protection 
is afforded by the common law. 

French v. Kreling, 63 Fed. Rep., 621. 

Shook V. Rankin, 3 Cent Law J., 21a 

§ 67. Notice Not Necessary. 

As a mere representation by the author or his assignee is 
no dedication thereof, no restrictive notice is necessary to 
spectators to protect the author’s rights, which are fixed and 
determined. 


Crowe V. Aiken, 2 Biss., 208. 

French v. Kreling, 63 Fed. Rep., 621. 

It is unnecessary to state on the programme an announce- 
ment that the play is not published by the performance given or 
to caution and warn the public against the use of the same. 
The protection attaching to ownership exists independently of 
notice, and so long as there has been no publication by print- 
ing or dedication it will continue. 

The lolanthe Case, 1$ Fed. Rep., 439. 

§ 68. Publicatioii, 'What Constitiites. 

The work, if not printed, abandoned, or dedicated to the 
public, has not been legally published. The fact that the 



82 


PROTECTION 


author has permitted and procured its representation for his 
own benefit and throt^h his selected channels does not amount 
to a publication within the statute or a dedication to the use 
of the public. The representation of a play on a stage is not 
such a publication or dedication to the public as authorizes 
others to print and publish it without the author’s permission. 
Tlie manuscript and the author’s right are still within the 
protection of the law. The author has the exclusive right to 
the first publication of his work, but no exclusive right to 
multiply copies or control the subsequent issues, save under 
copyright protection. 

Boudcault V. Hart, 13 Blatch,, 47. 

“ And there is no law which can compel an author to pub- 
lish. No one can determine this essential matter of publi- 
cation but the author. His manuscripts, however valuable, 
cannot, without his consent, be seized by his creditors as 
property. They are valueless to all the world except to the 
author and his representatives, or to such persons as he shall 
transfer them. But the author who publishes his work dedi- 
cates it to the public. He voluntarily incurs all the responsi- 
bility of a publisher. His object is to instruct or amuse 
mankind, and the more his work is circulated, the greater is 
the compliment to his ability as a writer. There is no reason 
then against a republication of the work by anyone, except 
that it may reduce the profits of the author. And on this 
ground he cannot complain, as he has failed to secure the 
right under the statute.” 


Bartlett v. Crittenden, s McLean, 32. 



ABANDONMENT 


83 


'§ 69. Abandonment IMned. 

“ Any clear, unequivocal and decisive act of the proprietor 
of a copyright showing an intention not to maintain and 
exercise his right will constitute an abandonment and warrant 
any person in the free and unrestricted use of the work.” 

9 Cyc, 927, Title “Copyright,” citing: 

Wall V. Gordon, 12 Abb. Pr. N. S., 349. 

Mifflin V. Dutton, 112 Fed., 1004. 

Boucicaiilt V. Wood, 2 Biss., 34. 

Shook V. Rankin, 21 Fed. Cas., 12,805. 


§ 70. The Bight of Ownership Extends to Ass^ees and Idoensees. 

The author of any literary or dramatic work is the sole 
owner of the manuscript and its contents and of copies of the 
same, independent of legislation, and such ownership continues 
so long as he does not publish it or part with his title. This 
is a common-law right and exists irrespective of copyright 
statutes. This right of property, though intangible, he can 
convey and transfer, and a court of equity will protect him 
or his assignee just as it will the owner of any other kind 
of property. The giving of a copy or of several copies of 
the manuscript will not necessarily be a publication, nor is a 
public performance such. 


§ 71. Title, and Assignees Thereof. 

“Until published the work is the private property of the 
author, wherever the common-law rights of authors are re- 
garded. When once published, with the assent of the author, 
it becomes the property of the world, subject only to such 
rights as the author may have received under copyright laws. 



84 


ASSIGNEES 


and they can have no force or give any rights beyond the 
territorial limits of the government by which they are enacted. 

“ The rights of assignees domiciled there, or alien authors 
resident abroad, have been sustained by the courts of this 
country, and no distinction has been made between transfers 
of literary property and property of any other description. 
The alienage of the author is no obstacle to him or his assignee 
in proceeding in our courts for a violation of his rights of 
property in his unpublished works.” 

Palmer v. DeWitt, 47 N. Y., 532. 

Macklin v. Richardson, Ambler, 694 

The assignee has a right to assign, and his assignee in turn 
can invoke protection for an invasion of the author’s rights 
as assigned to him through another. 


Crowe V. Aiken, 2 Biss. (U. S.), 203. 


A mere licensee or a part owner can maintain a suit for the 
protection of his common-law rights of ovraership as fully 
and effectually as the original owner. 


Aronson v. Fleckenstein, 28 Fed. Rep., 75* 

§ 72. Good Faith, of Wroi^vl User No Excnse. 

It is no defense to an action brought for the protection of 
the owner, assignee, part owner, or licensee of a play that the 
wrongful use was by one acting in good faith and belief that 
he, himself, was actually the owner of the manuscript. 


Shook V. Daly, 49 How Pr., 366. 



OWNERSHIP IN ALTERATIONS 85 

§ 73. Ovneiship in Alterations and Changes. 

Alterations and changes which an author may from time to 
time make in his manuscript belong to him and are his prop- 
erty to the same extent and to all the purposes of the original ; 
if these changes are unwritten and have been made by verbal 
suggestion, their use by another is improper, and it has been 
held that a proprietor of a theater to whom such changes 
were communicated by an actor could be enjoined from usii^ 
them. 

Keene v. Wheatley, 4 Phila. (Pa.). IS7* 

The written additions to the manuscript are not inde- 
pendent literary productions, but accessions whose proprie- 
torship is incidental to that of the principal composition. 
Unwritten additions are not capable of being the subjects of 
literary ovmership in anybody. But independent of any ques- 
tion of proprietary right, if one profits by these suggestions, 
while in the employ of the author or his assignee, he cannot 
use them in another and rival position. Such is a breach of 
confidence from which a court of equity will not permit him 
to derive an advantage to the true owners’ prejudice or to 
retain an advantage thus derived. 

Keene v. Wheatley, 4 Phila. (Pa.), IS7. 

§ 74. Bight to Bepeat 01 Becite from Flay. 

Anyone has a right to orally repeat a book or play which 
has been published by its author, or any part thereof, but he 
cannot reproduce and republish it, or a substantial part of it, 
in writing or in print 

An actor can be enjoined from using his remembrance of 



86 


THE RIGHT TO REPEAT 


a part in an unpublished play, in another and unauthorized 
production. Where the plaintiff translated a novel and sub- 
sequently dramatized it and the defendant, an actor, memo- 
rized the part of one of the characters while in the plaintiff’s 
employ, it was held that he was properly enjoined from speak- 
ing the part and using the business original to the plaintiff’s 
dramatization in a rival theater where another dramatization 
of the same novel was being performed. 

Keene v. Wheatley, 4 Fhila. (Pa.), 157. 

Heron v. Ladcaye, § 9 S> post- 

The same doctrine was recognized in Shook v. Rankin, 
reported in 3 Cent. L, J. 210, where the court prohibited a 
use of the play “ The Two Orphans.” There the defendant, 
McKee Rankin, familiarized himself with the play when rep- 
resented, he being a leading actor in the cast, arid thus it 
was memorized, and subsequently used by him in another’s 
theater. 

§ 75. Play Hast be Moral and Mot Libelous. 

If a play or other literary production is irreligious, libel- 
ous, obscene, or immoral, it is no part of the office of the 
court to protect it by injunction or otherwise. The rights 
of the author in this respect are secondary to the rights of 
the public to be protected from what is subversive of good 
morals, and this applies equally at common law, equity, or 
under the cop3night act. 

Shook V. Daly, 49 How Pr. R. (N. Y.), 366. 

Story’s Eq. Juris., § 936, (12th Ed.). 

In Martinetti v. Maguire, i Deady (U. S.), 216, the court 
refused to enjoin a production of a play called “ The Black 



PLAY MUST BE MORAL 87 

Crook” on the ground that the law would not interfere 
to prevent the giving of an indecent performance, although 
it was an infringement. “ ‘ The Black Crook ’ is a mere 
spectacle: in the language of the craft, a spectacular piece. 
The dialogue is very scant and meaningless and appears to 
be a mere accessory to the action of the piece: a sort of verbal 
machinery tacked on to a succession of ballets and tableaux. 
The principal part and attraction of the spectacle seems to be 
the exhibition of women in novel dress or no dress, and in 
attractive attitudes or action. The closing scene is called 
‘ Paradise,’ and, as Witness Hamilton expresses it, consists 
mainly ‘ of women lying around loose ’ ; a sort of Mohammedan 
paradise, I suppose, with imitation grottoes and unmaidenly 
houris. To call such a spectacle a ‘ dramatic composition ’ is 
an abuse of language, and an insult to the genius of the 
English drama. A menagerie of wild beasts or an exhibition 
of model artists might as justly be called a dramatic compo- 
sition.” 

§ 76. Publication Uust be Intentional. 

From the law as already stated it will be remembered that 
the ownership or title to a play, composition, opera, and the 
like depends upon its originality and the fact of its never 
having been published and thus dedicated to public uses. This 
deprives the owner of his peculiar and intangible rights 
therein, for if his work is printed and sold, he can no longer 
expect to retain his rights therein at common law. The 
personal element which has been protected is thus destroyed, 
and what was private becomes by the author’s own act public 
property, or he may by his acts deprive himself of this right 
by an abandonment. ’ This dedication or publication or aban- 



88 


PUBLICATION 


donment must be intentional, and is not accomplished by an 
unlawful or surreptitious obtaining of the manuscript or by an 
unauthorized or felonious retention thereof. Such wrong will 
be prevented by injunction. 

Story's Eq. Jur., § 943, (12th Ed.). 

Keene v. Wheatley, 4 Phila. (Pa.), 157. 

Aronson v. Fleckenstein, 28 Fed., 75 

Keene v. Kimball, 16 Gray, 545. 

Tompkins v. Halleck, 133 Mass., 32. 

Boucicault v. Hart, 13 Blatchf., 47. 

Palmer v. DeWitt, 47 N. Y., 552. 

Where the autjiors of the opera “lolanthe” allowed the 
publication of the libretto and vocal score with piano accom- 
paniment and kept the orchestration in manuscript, they were 
denied relief against a person who independently arranged a 
new orchestration, using for that purpose only the published 
vocal and piano scores. Here had been a publication, and as 
the scores had been dedicated to the public they could be used 
for any purpose, and it was no invasion of the author’s rights 
after such publication to arrange an orchestral score from the 
book and piano scores as published. 

Carte v. Ford, 15 Fed., 439. 

§ 77. Publication Teminates "Biglii of Ezolnsive Use. 

When the composer of any work, literary, musical or 
dramatic, has authorized its publication in print, his control 
over so much as he has published, and of the use which 
others make of it, is at an end. 

Wheaton v. Peters, 8 Pet., 591. 

Mark Twain Case, 14 Fed. Rep., 728. 

lolanthe Case, 15 Fed. Rep., 439. 



INVASION OF OWNERSHIP 89 

§ 78 . Eemedies for Wrongfnl Invasion of Ownership. 

As ownership is recognized at common law, an invasion of 
that right affords grounds for an action for damages in which 
will be awarded compensation for such injuries as can be 
legally proved. This form of action and what damages are 
provable is discussed in Chapter 22, post. As an action at 
law is generally inadequate in these matters, relief is more 
generally obtained by equitable proceedings. See Chapter 
24, post. 

§ 79 . Criminal liability for Wrongful Use of an Unpublished or 
Undedicated Play or Dramatic Composition. 

While the common law recognizes ownership in dramatic 
and musical compositions, and equity grants an injunction 
against a wrongful use thereof, such protection is often found 
inadequate and too slow to be of any beneficial use. The 
harm by piracy is often done and the transgressor beyond the 
jurisdiction of the court before the author leams of the vio- 
lation of his rights. 

This wrongful use of another’s ideas is unfortunately com- 
mon and by those who are financially unable to respond in dam- 
ages or beyond immediate reach of a writ of injunction. To 
remedy this evil has been the earnest effort of the American 
Dramatists Club, of which Bronson Howard, Esq., the emi- 
nent playwright, is president. Mr. Howard, in conjunction 
with Harry P, Mawson, Esq., the club's aggressive chairman 
of committee on legislation, and the cooperation of the 
club’s members, has been instrumental in securing statutory 
protection against the wrongful use of unpublished plays and 
operas in many of our States. 

This is an important and valuable effort, and the reasons 



90 


STATUTORY PROTECTION 


and intendment of these statutes are set forth by Mr. Howard 
in his published address on this subject, from which we quote : 

“These laws have no relation, in any sense or any way, 
to the cop3rright laws of the United States, or to the princi- 
ple of copyright. They protect a form of property which 
was recognized long before copyright was established by 
statute in any country. The United States statutes provide 
a penalty of one year imprisonment for infringement of copy- 
right, but Congress has no power, under the Constitution, to 
deal witli this form of uncopyrighted property. Only the 
State legislatures can do so. 

“ These laws do not, in any sense whatever, create a new 
form of property; nor give any special right of property to 
anyone ; nor extend protection to any property not previously 
recognized by State courts as properly subject to the pro- 
tection of the law. They simply provide for the more 
efficient enforcement of the authority of the State courts in 
dealing with what has been recognized as property, so long 
as English and American law has taken cognizance of litera- 
ture in any form.” 

§ 80. These Laws Do Not Create a New Offense. 

“These laws do not, in any sense, create a new offense, 
nor establish a penalty for a new offense; they merely make 
an old offense punishable by criminal as well as civil penalty. 
They establish a penalty, heretofore lacking in the State 
laws, for what is already necessarily and logically a crimi- 
nal offense; because the State courts have always recognized 
the fact that the manuscript of a play or musical composition, 
and its use, is a man’s personal property tmder the common 
law; and this property has always been protected by damages 



DRAMATISTS CLUB 91 

or injunction; under these laws a criminal penalty, as well, 
may follow misappropriation, as in the case of all other forms 
of property. The necessity for this additional penalty lies 
in the fact that nearly all the offenders of this kind, with 
whom the courts deal, in States where such laws do not yet 
exist, can now defy their authority; being irresponsible wan- 
derers from place to place, without financial resources or fixed 
residences; tramps, who merely laugh at money damages and 
injunctions, and despise the law.” 

As a direct and valuable result of the work of this organi- 
zation, statutes have been passed in some of the States (and 
should be in all) making a misdemeanor of the wrongful 
invasion of this well-recognized property right. 

To steal a man’s coat is a crime which was punishable in 
earlier times by death and now by imprisonment, yet only 
recently, and in a few States at that, has it been made a pun- 
ishable offense to steal the product of a man’s brains and in- 
tellect, though it represent the labor of many years of effort, 
experience and study. Why not protect that which is of 
infinitely more value to the individual by the same degree of 
law which protects his coat? 

The plea of the Dramatists Club is fair and the reasons 
undebatable; the protection sought is just and needed, and 
should be enacted in every State. 

The statutes on this subject are important, and, being of 
recent date and not of ready and general access, are here 
stated in full. 

,§ 81. New York. 

Section i. The penal code of the State of New York is 
hereby amended by adding thereto a new section to be known 
as section seven hundred and twenty-nine, and to read as 
follows : 



92 


STATUTES OF VARIOUS STATES 


Section 729. Any person who causes to be publicly per- 
formed or represented for profit any unpublished, undedicated 
or copyrighted dramatic composition, or musical composition 
known as an opera, without the consent of its owner or proprie- 
tor, or who, knowing that such dramatic or musical composi- 
tion is unpublished, undedicated or copyrighted, and without 
the consent of its owner or proprietor permits, aids or takes 
part in such a performance or representation shall be guilty of 
a misdemeanor. 

Section 2. This act shall take effect September first, eigh- 
teen hundred and ninety-nine. 

^ 82. lAuisiana (1900). 

Be it enacted by the (Jeneral Assembly of the State of 
Louisiana, that any person or company who takes part in or 
causes to be publicly performed or represented for profit any 
unpublished or undedicated dramatic or musical composition 
known as an opera without the consent of its owner or pro- 
prietor, or who, knowing that such dramatic or musical com- 
position is unpublished or undedicated, and, without the con- 
sent of the owner or proprietor, permits, aids, or takes part 
in such a performance or representation, shall be guilty of a 
misdemeanor, and shall be punished by a fine of not less than 
one hundred nor more than five hundred dollars for every 
such performance, or imprisonment for not less than thirty 
days. 

§ 83. Hew Hampshire. 

The present law of New Hampshire, protecting labels, 
trade-marks, special advertisements, establishing brands, etc., 
was passed in 1895. Its protection extends over “ any liter- 



STATUTES OF VARIOUS STATES 


93 


ary, dramatic, or musical composition ” not copyrighted or 
published. Included, also, under its sheltering wing are maps, 
charts, engravings, cuts, prints, photographs and negatives, 
statues, statuai^*, and models or designs. The punishment for 
violation of this law is as follows: Imprisonment for not 
less than three months nor more than one year, or a fine of not 
less than one hundred nor more than two hundred dollars, 
or both. 

§ 84. Oregon (Feb. 27, 1901). 

Any person who knowingly causes to be publicly performed 
or represented for profit any unpublished or undedicated dra- 
matic composition, or musical composition, known as an 
opera, without the consent of its owner or proprietor, or who, 
knowing that such dramatic or musical composition is un- 
published or undedicated, and without the consent of its 
owner or proprietor, permits, aids, or takes part in such a 
performance or representation, shall be guilty of a misde- 
meanor, and shall be punished by a fine not exceeding one 
hundred (lOo) dollars or by imprisonment in the county 
jail not more than six months, or by both fine and imprison- 
ment. Each performance or representation so given shall be 
deemed a substantive offense. 

§ 85. Feimsylvaiiia (Hay 29, 1901). 

Section i. Be it enacted, etc., that no unpublished dra- 
matic play and no unpublished musical composition shall be 
publicly presented for profit without consent of the author 
or authors thereof. 

Section 2. Any and all persons, firms and corporations 
violating the provisions of section one of this act shall be 
guilty of a misdemeanor, and on conviction thereof shall for 



94 STATUTES OF VARIOUS STATES 

each offense be sentenced to pay a fine of not less than ten 
dollars and not more than five hundred dollars, or to be 
imprisoned not exceeding three months, or either or both, at 
the discretion of the court of quarter sessions. 

§ 86. OMo (llarch 26, 1902). 

Section i. That any person who causes to be publicly per- 
formed or represented for profit any unpublished or undedi- 
cated dramatic composition or musical composition known as 
an opera, without the consent of its owner or proprietor, or 
who, knowing that such dramatic or musical composition 
is unpublished or undedicated, and, without the consent of its 
owner or proprietor, permits, aids or takes part in such a 
performance or representation, shall be guilty of a misde- 
meanor, and upon conviction thereof shall be fined not less 
than fifty dollars and not more than three hundred dollars, 
or be imprisoned not less than thirty days or more than three 
months, or both. 

Section 2 . This act shall take effect and be in force from 
and after its passage. 

§ 87. New Jersey (April 10, 1802). 

1. Any person who causes to be publicly performed or 
represented for profit any unpublished, undedicated or copy- 
righted dramatic composition, or musical composition known 
as an opera, without the consent of its owner or proprietor, 
or who, knowing that such dramatic or musical composition 
is unpublished, tmdedicated or copyrighted, and without the 
consent of its owner or proprietor permits, aids or takes part 
in such a performance or representation, shall be guilty of a 
misdemeanor. 

2 . This act shall lake effect immediately. 



STATUTES OF VARIOUS STATES 


95 


§ 88. Uassadiiuetis (March 29, 1904). 

Whoever causes to be publicly performed or represented an 
unpublished and undedicated dramatic or musical composition 
without the consent of the proprietor thereof, and with knowl- 
edge or notice that such dramatic or musical composition is 
unpublished and undedicated, or whoever, being in control of 
a theater or other public place of amusement, licensed or un- 
licensed, without such consent and with such knowledge or 
notice, permits a public performance or representation of such 
dramatic or musical composition in such theater or place of 
amusement, or whoever without such consent and with such 
knowledge or notice takes part in a public performance or 
representation of such dramatic or musical composition, shall 
be guilty of a misdemeanor, and shall be punished by a fine 
not exceeding one hundred dollars or by imprisonment for not 
more than six months, or by both such fine and imprisonment. 

§ 89. California (Mareh 18, 1905). 

Section i. There is hereby added to the Penal Code a new 
section to be numbered 367a, to read as follows: 

367a. Any person who causes to be publicly performed or 
represented for profit any unpublished or undedicated dra- 
matic composition or dramatic musical comporition known 
as an opera, without the consent of its owner or proprietor, 
or who, knowing that such dramatic or musical composition 
is unpublished or undedicated and without the consent of its 
owner or proprietor, permits, aids, or takes part in such a 
performance or representation, or who sells a copy or a sub- 
stantial copy of any unpublished, undedicated or copyrighted 
dramatic composition or musical or dranoatic musical com- 
position, known as an opera, without the consent of the 



96 STATUTES OF VARIOUS STATES 

author or proprietor of such dramatical or dramatic musical 
composition, shall be guilty of a misdemeanor, and upon con- 
viction thereof shall be fined not less than fifty (50) dollars 
and not more than three hundred (300) dollars, or be im- 
prisoned for not less than thirty (30) days or more than three 
(3) months or both such fine and imprisonment 

§ 90. Iliiiiiesota (Harch 15, 1905). 

Section i. Any person, company or corporation who 
knowingly causes to be publicly performed or represented 
for profit, any unpublished or undedicated dramatic composi- 
tion or musical composition, known as an opera, without the 
consent of its owner or proprietor, who knowing that such 
dramatic or musical composition is unpublished, or undedi- 
cated and without the consent of its owner or proprietor, 
permits, aids or takes part in such a performance or repre- 
sentation, or any person, company or corporation who sells 
a copy or a substantial copy, or any unpublished, undedicated 
or copyrighted dramatic composition or musical composition, 
known as an opera without the written consent of the author or 
proprietor of such dramatic or musical composition, shall be 
guilty of a disdemeanor. 

Section 2. This act shall take effect and be in force from 
and after its passage. 

§ 91. Wiseonsin (Time 1, 1905). 

Section i. Any person who sells a copy or a substantial 
copy, or who causes to be publicly performed or represented 
for profit any unpublished or undedicated dramatic play or 
musical composition, known as an opera, without the written 
consent of its owner or proprietor, or who, knowing that such 



STATUTES OF VARIOUS STATES 


97 


dramatic play or musical composition is unpublished or un- 
dedicated, and -without the written consent of its owner or 
proprietor, permits, aids, or takes part in such a performance 
or representation, shall be guilty of a misdemeanor, and upon 
conviction thereof shall be fined not less than five dollars nor 
more than one hundred dollars, or by imprisonment not ex- 
ceeding sixty days. 

Section 2. This act shall take effect and be in force from 
and after its passage and publication. 

§ 92. HGcliigan (June 16, 1909). 

Section i. No unpublished, uncopyrighted or undedicated 
dramatic play, and no unpublished or undedicated musical 
composition shall be publicly performed or represented for 
profit without consent of the owner or proprietor thereof. 

Section 2. Any and all persons, firms and corporations 
that shall cause to be publicly performed or represented for 
profit any unpublished, uncopyrighted or undedicated dra- 
matic composition, or unpublished or undedicated musical 
composition without the consent of the owner or proprietor, 
or who, knowing that such dramatic or musical composition 
is unpublished or undedicated, and without the consent of 
its owner or proprietor, permits, aids or takes part in such 
a performance or representation, shall be guilty of a misde- 
meanor and on conviction thereof, shall for each offense be 
sentenced to pay a fine of not less than ten dollars, and not 
more than five hundred dollars or be imprisoned not exceed- 
ing three months, or either, or both, at the discretion of the 
court. 



98 STATUTES OF VARIOUS STATES 
§ 93. Conneoticnt (June 7, 1905). 

Section i. Any person who causes to be publicly per- 
formed or represented for profit any unpublished, undedi- 
cated or copyrighted dramatic composition or any musical 
composition, known as opera, without the consent of its 
owner or proprietor, or who, knowing that such dramatic 
or musical composition is unpublished, undedicated or copy- 
righted, and without the consent of its owner or proprietor, 
permits, aids, or takes part in such performance or represen- 
tation shall be fined not more than one hundred dollars, or 
imprisoned not more than six months, or both. 

Section 2. Nothing in this act shall affect amateur per- 
formances or representations given for purely charitable pur- 
poses. 



DRAMATIC AND MUSICAL COMPOSITIONS UNDER 
COPYRIGHT LAWS 

RIGHTS IN TRANSLATION AND DRAMATIZATION 
RIGHT OF AUTHOR TO SELL HIS WORK 
WHAT MAY BE PROTECTED BY COPYRIGHT 
RIGHTS OF EMPLOYER TO WORKS OF EAIPLOYEE 
TITLE OR NAME OF PLAY 




COPYRIGHT COMPOSITION 


lOI 


CHAPTER V 

§ 94. Bramatio and Unsical Compositions Under the United States 
CoTpxight law. 

Under the copyright law a dramatic composition covers a 
tragedy, comedy, farce, drama, play or any similar differentiat- 
ing term. 

A musical composition includes both words and music, or 
music alone. If it is desired to copyright the words only of 
a song or opera, application should be made for a “book.” 
These distinctions are statutory, and hence arbitrary. 

The statute affords no protection for stage business, spe- 
cialty acts, stage scenes, curtains, ideas, dances and kindred, 
matters. See § 62, ante. 

The author, or his assignee, of any literary, musical, dra- 
matic or artistic work, which is recognized by the statute, 
may obtain a copyright, provided it is original matter, on 
application and pa3rment of the required fee, and to complete 
or hold this copyright, is further required before the publica- 
tion or distribution of any copies thereof to deposit two 
copies with the Librarian of Congress, which must be com- 
plete and of the best edition. The copyright for dramatic 
or musical composition titles should be applied for upon 
printed or typewritten forms, setting forth the title. This 
being filed, the title is protected. As the time of publication 
of any work of which the title has been recorded is not 



102 


COPYRIGHT PROTECTION 


limited by the statute, which makes no provision for any 
interim period, the right to the title continues to exist al- 
though no publication has been made, as there is no violation 
of the law until publication and a neglect to file the required 
copies. While it is true the courts have intimated that the 
publication should take place within a “ reasonable time,” 
that period has not been definitely defined, nor passed upon. 

While the title to a dramatic composition is generally copy- 
righted, very few are completed as required by the copyright 
act by the subsequent printing and deposit of copies. 

The title to the play or musical composition is nevertheless 
protected by copyright and no one else can adopt or use it. 
A valuable play is never printed; it remains in manuscript 
form, each part, with the connecting cues, being distributed 
to the members of the company selected to play it. 

If the play is published, the rights of copyright cease, tm- 
less copies of the play are sent to the Librarian of Congress 
as required. 

As a public performance under our law is no publication 
■of a dramatic or musical composition, it naturally follows 
that the name or title thereto is protected by copyright and 
the provisions thereof sufficiently complied with, as no copies 
have to be filed at Washington until there has been an actual 
publication, the time of which is not specified. See post, 
§ 104.. 

For detailed information as to registration see “ Directions 
for the Registration of Copyrights” prepared by Thorvald 
Solberg, Reg. of Copyrights. Copyright Office Bulletin 
No. 2. 

The act of March 3, 1891, U. S. Statutes at Large, Vol. 
26, p. 1107, provides that “Authors or their assigns shall 
have exclusive right to dramatize and translate any of their 



TRANSLATION AND DRAMATIZATION 103 

works for which copyright shall have been obtained under 
the laws of the United States.” 

9 

As to musical compositions, see: 

U. S. Rev. Sts. (1878), § 4565, as amended. 

29 U. S. Stat at L., 481. [U. S. Comp. Stat (1901) p. 

34IS.] 

Translations authorized by the authors or owners of copy- 
righted works and translations of non-copyrighted books are 
subject to registration in the copyright office as original pro- 
ductions, and application for copyright registration should be 
made as for an original work. 

§ 95. Translatioii and Siamatization. 

Translation and dramatization can, like any other literary 
production, evidence originality, and are therefore entitled to 
protection in the same degree as any other original matter. 
The dramatization of a novel, story or plot requires peculiar 
and original ability, and although a play may evolve the same 
story and introduce familiar characters, yet as a dramatization 
it can be sufficiently original to merit protection. 

The play itself under such circumstances is valuable prop- 
erty, which the author has devoted much time and skill in 
evolving and for which the manager may have paid a large 
price. It is not so much the novelly or originality of the 
matter used as the novelty and originality of treatment. The 
plot of the “ Count of Monte Cristo ” is familiar, old and 
usual, yet a new play can be evolved from the story so original 
as to warrant protection as a proper copyrightable matter, 
or to establish therein a title at common law which equity 
will protect. “ He who honestly translates or dramatizes, 
produces a work in a new and useful form, and is entitled 



104 TRANSLATION AND DRAMATIZATION 


to the same protection extended to original compositions. 
The value of a translation depends upon the learning and 
ability of the person who does the work and upon his adapt- 
ability to the particular task undertaken. It requires versatile 
talent of a high order to do it well. Dramatization requires 
the skill and experience of a playwright, and the success of the 
work depends upon his dramatic knowledge or genius. Dion 
Boucicault received $30,000 for dramatizing ‘Led Astray,’ 
and other pla3rwrights have received sums almost as large for 
similar work. It follows that such productions are valuable 
property that require and must receive protection. Anyone 
may dramatize a novel, and the dramatization becomes his 
property (Daly v. Byrne, 43 N. Y. Superior Court 261 ; aff’d 
77 N. Y. 182), and the author or his assignee, whether a 
citizen or an alien, is entitled to protection (Shook v. Daly, 
49 How. Pr., 366; Widmer v. Greene, 56 id. 91), and it mat- 
ters not whether it be the exclusive work of one or of several 
acting in cooperation. (French v. Maguire, 55 How. Pr. 
471.) The plaintiff does not dispute the right of anyone to 
translate Dumas’ novel or to dramatize or represent it on the 
stage, nor does he contest the right of the defendant to take 
part in such performance and speak the lines of such trans- 
lation and dramatization. He insists, however, and with 
right, that the defendant, while performing under such other 
dramatization shall not speak the lines nor do the stage busi- 
ness peculiar to the plaintiff’s dramatization.’^ 

Fleron v. Lackayc, 5 N. Y. Law Jour., 21— April 28, 
1891. 

§ 96. Bight of Author to Sell 

The author of a novel having full ownership therein may 



COPYRIGHT PROTECTION 105- 

give to another the exclusive right of dramatization, and the 
assignee will be protected therein. 

House v. Qemeos, 9 N. Y. Supp., 484 , see ante, § 71. 

§ 97. What May he Protected by Copyr^rht 

Although for the reasons heretofore stated a dramatic 
composition is kept in manuscript form and not published, it 
is nevertheless a copyrightable matter, both here and in Eng- 
land, if the author so elects, 

U. S. Rev. Stat (1878), § 4952. 

As amended 26 U. S. Stat at L., 1106. [U. S. Comp. Stat 
(1901), p. 3406.] 

Directions for the Registration of copyrights. Bulletin No. 
2. Copyright office, Washington. 

It naturally follows if an original work, story or novel is 
properly copyrighted the author may protect an adaptation 
or dramatization thereof. He is entitled to the full benefit 
of his original creation, and it does not cease with his rights 
to its entirety, but extends to every original part, plot or situa- 
tion, and no one has the right to use, adapt or dramatize any 
portion or part. Apart from statute, such use is the invasion 
of a well-recognized right at common law, as already ex- 
plained. 

Boucicault v. Fox, 5 Blatchf., 87. 

Shook V. Rankin, 6 Biss., 477 * 

The statute gives to authors or their assigns full and exclu- 
sive rights of dramatization of their literary compositions. 

U. S. Statutes at Large, Vol. 26, p. 1107. 



io6 COPYRIGHT PROTECTION 

§ 98. Gop;r4;lit Protection. 

The copyright laws do not protect as a dramatic composi- 
tion or under any other head that which is merely a picture, 
motion, scene or spectacle, for such are not dramatic compo- 
sitions within the statutory intendment. 

Daly V. Webster, 56 Fed., 483. 

Martinetti v. Maguire, Deady, 216. 

Daly V. Palmer, 6 Blatchf., 256. 

For other cases and illustrations, see ante, § 46. 

The courts have gone far in finding elements of what is 
termed dramatic in compositions, and while such can readily 
be traced in a pantomime, as described in Lee v. Simpson, 3 
C. B. 871, or in a book of stage directions concerning the 
putting on of a drama as explained by Mr. Justice Blatch- 
ford in Daly v. Palmer, yet a topical song, though held dra- 
matic in the legal sense, as in Henderson v. Tompkins, 60 
Fed. 758, would seem to be the extreme limit of application. 
In this case the song was held to be a proper subject for 
copyright, being of value as a connecting link in the general 
scheme of explanation which surrounded the piece as pro- 
duced. In such cases the author in protecting his idea only 
copyrights the theme or skeleton of the song, reserving the 
words, which remain vmpublished in the copyright sense. 

The general application of the rule to particular instances 
of what is dramatic in composition under the statutes, is 
interesting and sometimes confusir^, a sharp contrast being 
found in the cases of Daly v. Webster, $6 Fed. 483, and 
Serrana v. Jefferson, 33 Fed. 347. In the Daly case the 
central feature of the drama was the use of a railroad track 
and train, the hero being fastened to the track in such a way 
that the momentarily expected train would run over and kill 



SERRANA V. JEFFERSON 107 

him; his rescue at the critical moment forming the chief 
incident of the act. This was held dramatic and properly a 
subject for copyright protection, for although chiefly a mat- 
ter of vision and mechanical device, it was still such an ar- 
rangement or scheme of dramatic events as' to entitle it to 
the statutory- protection. In Serrana v. Jefferson a tank of 
real water formed a like central episode, the villain of the 
piece falling therein at a critical moment from a bridge above 
the water. This, however, though quite as realistic as the 
railroad scene in the Daly case, and forming the central and 
exciting motive of the play, was repudiated as not being a link 
in the chain of action sufficiently dramatic and original to come 
within the intendment of the statute. 

§ 99, Necessity of Human Interest and Portrayal of Emotions. 

Whatever the case, the facts must show such a chain or 
combination of dramatic events as are capable of producing 
the emotions of human feeling attributed to the purpose of 
the legally defined drama. Since, as we have seen, a dance, 
though beautiful and attractive, fails as such a composition 
because of the lack of story and emotion depicted, and a song 
of descriptive nature rendered by one person who mimics the 
characters in the supposed story, as he accompanies himself 
on the piano, is sufficiently dramatic, we do not see why a 
song rendered in costume by a woman who portrays the 
characters she describes in her song, is not logically of the 
same general worth as a dramatic composition. Such is not 
so, however, under an application of the general principle in 
another case. 

Fuller V. Bemis, So Fed., 926. 

Russell V. Smith, 12 Q. B., 217. 

Barnes v. Miner, 122 Fed., 480. 

See ante, § 49. 



io8 ORIGINALITY 

§ 100. Or^iinality an Important Element. 

The novelty or originality of the subject is the test which 
must be satisfied to obtain a copyright, for the statute has 
in view only the promotion of that which is the work of the 
individual effort and its protection to the author or his 
assignee. To allow one who has not created the composition, 
or acquired it by assignment from its creator, would be to 
legalize theft and give a wrongdoer a superior title to the 
real owner. 

Only through originality can protection be claimed, which 
must be that of conception, and not a copy, imitation or 
evasion of another’s work. Old materials can be arranged 
in new form and an old theme rehabilitated with new scenes 
and dialogue so long as that which is new is original. 

Emerson v. Davies, 3 Story, 768. 

Martinetti v. Maguire, Deady, 216. 

Reed v. Carusi, Taney, 72. 

This principle applies equally to musical as well as dra- 
matic compositions, the strict rule of originality being the 
test of copyrightable matter. 

The courts have not found the same difficulty in determin- 
ing what was a musical composition as they have in cases of 
dramatic composition. Here the only question involved is that 
of originality, which requires no additional discussion. 

§ 101. Bights of Employer to Works of Employee. 

The fruits of a servant’s labor belong to his master, and 
the literary or musical work of a salaried employee, created 
in the course of his employment, is the property of his em- 
ployer, who may copyright the same. This is not true. 



TITLE MUST BE ORIGINAL 109 

however, if by contract or implication it can be shown that 
the ownership in the composition is to remain in the employee. 
To establish such a case calls for definite and unmistakable 
evidence, as generally the employee has no such right and 
the work, though his own original creation, belongs to his 
employer. 


Lawrence v. Dana, 4 Gi£F. (U. S.), 65. 

Colliery Engineer Co. v. United, etc., Co., 94 Fed., 15a. 
Boucicault v. Fox, 5 Blatchf., 87. 

Qdlagan v. Myers, 128 U. S., 617. 

§ 102. Title Must Also be OriginaL 

While one who deposits in the copyright office the title of 
a drama thereby obtains protection, it must be proved to be 
orginal, and he cannot retain this protection to the exclusion 
of others who have already used the title to a play adapted 
from the same story, before the filing. 


Benn. v. Leclercq, 3 Fed. Cas., 1308. 

Isaacs V. Daly, 39 N. Y. Super. Ct, 511. 

Brightley v. Littleton, 37 Fed. Rep., 103. 

§ 103. Statutory Requirements. 

The requirements of the statute as to the time of filing, 
the manner of application and method required, must be 
carefully complied with. The law only confers the privilege 
of this protection after the doing of certain clearly defined 
things, and a neglect in any detail bars the right sought. 

Explicit directions as to the method of obtaining a copy- 
right have been compiled by the government officials, and 
should be followed, as originality in this respect is quite sure 
to be fatal in securing the desired protection. The courts 



no 


COMPOSITIONS DEFINED 


have construed the copyright statutes narrowly, and appli- 
cants have been held to the letter of the law. 

If the words only of a song are to be protected, the appli- 
cation should be for a hook; if both words and music are 
sought to be protected, then application should be for a musi- 
cal composition. 

Comedy, drama and farce are under the statutory desig- 
nation of dramatic composition, and application should be 
made under such term. 

The copyright law has but three heads covering all such 
matters: (i) book, (2) musical composition, and (3) dra- 
matic composition. 

Book covers poems, stories, novels, histories, and songs 
without music. 

Musical composition covers a song (both words and music), 
an opera, or any musical piece of an instiumental nature. 

Dramatic composition covers a play, farce, drama, tragedy 
and comedy or any other composition of a kindred nature. 

In securing protection for dramatic compositions under 
the copyright law application should be made upon printed or 
typewritten titles, as in the case of other literary composi- 
tions. It is not sufficient that the title is written. It has been 
the practice of the cop3rright office to receive at the claimant’s 
sole responsibility two typewritten copies of a drama for the 
copies required under the statute to perfect the copyright, but 
the only safe method is to file copies which are printed in the 
common acceptance of the term. As has been stated, it is 
usual to file the printed title to a dramatic work, which se- 
cures the protection thereof without publication. 



TITLE OF COMPOSITION 


III 


§ 104. Title or ITame of Book, Play, or Kosical Compositioii. 

By the terms of the copyright statute the protection centers 
on the copyright of “ the book,” the word book being used to 
describe any literary production and not extending to the 
mere title or name thereof. Although by the terms of the 
statute a printed copy of the title of such book must, before 
publication, be sent to the Librarian of Congress, “ yet this 
is only as a designation of the book to be copyrighted ; and 
the right is not protected under the statute until the required 
copies of such copyrighted books are, after publication, also 
sent. It is only as a part of the book and as a title to tliat 
particular literary composition that the title is embraced 
within the provision of the act.” 


Osgood V. Allen, i Holmes, 185. 
JoUie V. Jacques, i Blatchf., 618. 


“ The title does not necessarily involve any literary com- 
position; it may not be and certainly the statute does not 
require it should be the product of the author’s mind. It 
is not necessary that it should be novel or original. It is a 
mere appendage, which only identifies and frequently does 
not in any way describe the literary composition itself, or 
represent its character. By publishing, in accordance with 
the requirements of the copyright law, a book under the title 
of the life of any distinguished statesman, jurist or author, 
the publisher could not prevent any other author from pub- 
lishing an entirely different and original biography under 
the same title. When the title is original, and the product 
of the author’s own mind, and it is appropriated by the in- 
fringemait, as well as the whole or a part of the material com- 



1 12 TITLE OF COMPOSITION 

position itself, in protecting the other portions of the literary 
composition courts would probably also protect the title.” 


Osgood V. Allen, i Holmes, 192. 

Corbett t. Purdy, 80 Fed. Rep., 901. 

The same rule would apply to the title or name of a dra- 
matic or musical composition, and the protection would result 
only in accordance with the principles stated in Osgood v. 
Allen. 

The title to a dramatic composition is protected under the 
copyright law, although the body of the play is different 
from the one originally intended or written. The title at- 
taches to the composition finally filed, and is in such manner 
protected. 


Shook V. Wood, 32 Legal Intel. (Pa.), 264. 


§ 106. Pnither Consideration of Name of Flay. 

When a title or name is novel and original and the title forms 
a part of the literary production, it then becomes necessary, 
in order to protect the copyrighted literary composition, for 
courts to secure the title from piracy as well as the other pro- 
ductions of mind of the author in the book, and undef such 
circumstances another person will be enjoined from such 
wrongful invasion and prevented from using the same title. 

Osgood V. Allen, i Holmes, 183. 

Jollie V. Jacques, i Blatchf., 61& 

Bradbury v. Beeton, 39 L. J. Ch. (N. S.), 57. 

Bradbury t. Dickens, 27 Beav., S3- 
Isaacs V. Daly, 39 N. Y. Super. Ct, .sn. 



TITLE OF COMPOSITION 


113 

§ 106. How Protected Wlien an Erasion of the Copyr^ht 

Statute. 

The application of this principle is veiy limited and only 
extends to a clear case of originality, and then rather by the 
application of the doctrine of protection in equity against the 
wrongful invasion of another’s rights than a clear case of 
wrongful interference with a copyrighted thing, for titles as 
such are clearly not copyrightable matters, and their status 
as a matter of equitable protection can only be determined in 
reference to the printed copies of the work which are sup- 
posed to follow and be finally filed as a physical fact. For 
this reason the proper filing of the title to a play protects 
it, although the play itself is never printed and copies never 
sent to the Librarian of Congress. The statute is silent as 
to any requirement of furnishing copies within any period 
of time after the filing of the title. Hence it cannot be deter- 
mined until the copies appear whether such is a case where it 
is necessary to protect the title as a part of the literary com- 
position or not. Pending this final test the title stands as 
filed under the protection of the copyright act and as a pre- 
ceding part of a book or play, pending the sending of printed 
copies, is protected, although it may never be intended by 
the author to have the book or play printed. So by a species 
of bad faith is accomplished the very protection of a title 
under the copyright law which the act itself denies. 

Bartlett v. Crittenden, 5 McLean, 37. 

§ 107. Ho ll4rht to General Words or Terms. 

The law gives no one an exclusive right to the use of a 
title which consists of a word or words of general signifi- 



1 14 


TITLE OF COMPOSITION 


cation, even -though such be actually copyrighted and used 
as the name of a play or opera. The owner thereof cannot 
object to the use of such title or name when bestowed upon 
another play entirely dissimilar in nature provided there is 
an absence of bad faith. If bad faith exists, another rule pre- 
vails, for if one adopts a title which has been copyrighted, 
though the same is of general signification, and uses it to 
profit by another’s work or to injure another’s play or busi- 
ness, such wrongful use will be considered as an invasion and 
enjoined in equity. 

Isaacs V. Daly, 39 N. Y. Super. Ct., 511. 

Benn v. Leclercq, 3 Fed. Cas. No. 1308. 



MANAGERS’ DUTY TO PROTECT PATRON FROM 
INJURY 




MANAGER’S DUTY 


117 


CHAPTER VI 

I 108. Uanai^s Duty to Protect Patron from Injury. 

Although the theater patron is merely a licensee whose 
right to remain on the premises may at any moment be re- 
voked by the proprietor (see post, § 140), yet as such licensee 
he is to be protected from harm while in the enjoyment of 
this license 

The burden rests on the manager to see that his building 
and grounds are safe, and that no lack of due care on his part 
has placed a chance of injury in the way of those who pat- 
ronize his performance. The rule of care required is one of 
reason, which demands that the manager shall have knowl- 
edge as to the structural safety and condition of his building 
or place of amusement and the appliances therein. 

The licensee has a right without personal investigation to 
suppose the place safe, and that nothing will occur to injure him 
while on the premises or in the lobbies and entrances leading 
thereto. The place set apart and given over to amusement 
purposes and its approaches must be safe, and the manager 
must exercise ordinary care and diligence to protect the 
patron from injury while entering, leaving or on the premises. 
To allow open a trap door without guards to protect the 
opening, to provide a seat which is insecure and falls apart, 
to allow depressions in the floor which are liable to be fallen 
over, to leave unlocked a door leading to an unguarded plat- 
form, or to tolerate any condition of affairs which would rea- 
sonably lead to an accident and which ordinary human pru- 



MANAGER’S DUTY 


ii8 

dence, foresight and sagacity can prevent, is such a lack of 
ordinary care and diligence as to cause liability. 

Camp V. Wood, 76 N. Y., 92. 

Phillips V. Wisconsin State Agri. Soc., 60 Wis., 401. 

Currier v. Boston Music Hall, 135 Mass., 414. 

Hart V. Washington Park Club, 157 111 ., 9. 

Selinas v. Vermont State Agri. Soc., 60 Vt., 249. 

In Higgins v. Franklin County Agricultural Soc. lOO Me. 
565, it was held that a fair association which maintained on 
its grounds a track for horse racing was bound to use reason- 
able care to keep the track free from danger to patrons at 
times when they were invited or permitted to cross and while 
they were thus crossing. 

The court there said : “ The plaintiff might have avoided 
the collision had he been on the constant watch for approach- 
ing horses from the time he entered upon the track, which, 
however, he was not. The defendant insists that, hence the 
plaintiff did not exercise due watchfulness and that his neg- 
ligence in that respect was a contributing cause of the col- 
lision. The only question of law arising under this contention 
is whether the plaintiff was negligent, as matter of law, under 
the circumstances, in not being constantly on the watch for 
horses and vehicles rapidly passing along tbe track he was 
crossing. We think he was not.” “ If the owner or occupier 
of land directly or by implication induces persons to come 
upon his premises, he thereby assumes an obligation to see 
that such premises are in a reasonably safe condition.” 

Thornton v. Maine State Agn"!. Soc., 97 Me., 113. 

Davis V. Central Cong. Soc., 129 Mass., 367. 

Hart V. Washington Park Club, 157 111 ., 9. 

Lane v. Minnesota State Agr. Soa, 62 Minn., 175. 

Conradt v. Clauve, 93 Ind., 476. 



ER OF LEASED SPACE 119 

§ 109. liability of Hauler for Negrligence of Ocoapier of Leased 
l^aee. 

Where a State fair association pves the exclusive use of 
a portion of its ground to an exhibitor and advertises such 
exhibit as one of the attractions of the fair, it is liable to a 
spectator for any injury which is caused by the negligence 
of the exhibitor. 

And where the injury was occasioned by the negligent 
construction of seats it was held that no matter by whom the 
seats were erected it was the duty of the association to see 
that the same were in reasonably safe condition before invit- 
ing the public to occupy them. Whether invited upon the 
premises by contract of service, or by the calls of business, or 
by direct request is immaterial. The party extending the 
invitation owes a duty to the party accepting it to see that at 
least ordinary care and prudence are exercised to protect 
him against dangers not within his knowledge and not open 
to observation. 

Texas State Fair v. Brittain, 118 Fed., 713. 

Sebeck v. Plattdeusche, etc., Verein, 64 N. J. L., 624, 

Cbnradt v. Clauve, 93 Ind., 476. 


§ 110. Sale as to ladependent Contractor of Lzhibition. 

The fact that the side show, exhibit, balloon ascension or 
whatever else is included in the general scheme of entertam- 
ment, is given by an independent contractor does not relieve 
the general management of the amusement enterprise, of which 
the side show, etc., is a part, from its duty of using due care to 
protect its patrons from injury. 

Despite its contract with another for an exhibition, space 



120 


RULE OF REASONABLE CARE 


or whatever else, the management is legally in control of the 
whole and must see that patrons suffer no injury from neg- 
ligence and lack of ordinary care from any source of pro- 
vided entertainment. 


Richmond & M. R. Co. v. Moore, 94 Va., 493. 

Texas State Fair v. Brittain, 118 Fed., 713. 

Thompson v. Lowell, etc., St. R. Co., 170 Mass., 577. 
Sebeck v. Plattdeusche, etc., Verein, 64 N. J. L., 624. 
See post, § 121. 


§ 111. The Duty of Protecting the Patron is One of Eeasonable 
Care. 

A spectator at a theater, fair or other public amusement, 
on becoming a patron by invitation of the management, has 
a right to expect protection from injury from such exhibits 
and performances as take place therein. He must not be in- 
jured by the falling of a floor, building, stand or seat neg- 
ligently constructed, by fireworks, the careless handling of 
weapons in a shooting gallery, the falling or dragging of guy 
ropes from a balloon or by any act which the management 
with reasonable care might have prevented. 

Texas State Fair v. Marti, 69 S. W. R., 432. 

Texas State Fair v. Brittain, 118 Fed,, 713. 

Thornton v. Maine State Agri. Soc., 97 Me., 108. 

Peckett V. Bergen Beach Co., 44 App. Div. (N. Y.), 559. 

Richmond & M. R. Co. v. Moore, 94 Va., 493. 

Brown v. South Kennebec Agr. Soc., 47 Me., 275. 

Dunn V. Brown County Agri. Soc., 46 Oh. St., 93. 

Latham v. Roach, 72 111 ., 179. 


The rule is not to be confused with the case of the owner 
of premises who gives a bare license or permission to another 



REASONABLE CARE DEFINED 


121 


to enter, for there such licensee takes the risk of the ordinary 
dangers resulting from the faulty construction or arrange- 
ment of the premises. But to open a hall or place for public 
purposes, the same is thereby held out to the public as safe 
to frequent, and the owner or manager is bound to exercise 
care to provide safe arrangements for the entrance, remain- 
ing and departure of people who go there upon his invitation. 

Camp V. Wood, 76 N. Y., 92. 

“ Managers of theaters and others who invite the public 
to become their patrons and guests, and thus submit personal 
comfort and safety to their keeping, owe a special duty to 
those who may accept such invitation. Such patrons and 
guests have a right to ask that they shaill be protected from 
injury while present on such invitation, and particularly that 
they shall not suffer wrong from the agents and servants of 
those who have invited them.” 

Dickson v. Waldron, 135 Ind., 52a 

Oakland City Agri. Co. v. Bingham, 4 Ind. App., 545. 

Oakland City Agri. Co. v. Bingham, 4 Ind. App., 545. 

The proprietor of a theater, hall or grounds must exer- 
cise ordinary care and diligence to put and keep his place of 
amusement in a reasonably safe condition for persons coming 
there under the circumstances for vrhich it is open. The 
proprietor’s knowledge of the defect is immaterial and does 
not alter his liability ; it is a matter he is legally presumed to 
know independent of the real fact. 

His knowledge of the defect is not material in establish- 
ing the liability. The question is whether with the exercise of 
ordinary and reasonable care he could have known of the 



122 ORDINARY CARE 

defect and thereby prevented the injury, and not whether 
he actually knew it. 


Oxford V. Leathe, 165 Mass., 254. 

Schofield V. Wood, 170 Mass., 415. 

Jennings v. Tompkins, 180 Mass., 302. 

Currier v. Boston Music Hall, 135 Mass., 414. 

As to the rule when injury gprows out of the permanent 
structural conditions as a slope of balcony and arrangement 
of seats, see 


Dunning v. Jacobs, 36 N. Y. Sup., 453. 

If a manager by mere chance has actual knowledge of a 
defect which by reasonable and ordinary care he could not 
have discovered, then the actual knowledge fastens the lia- 
bility upon him, as he is bound to remedy what he knows 
about, no matter how the knowledge was obtained. 

§ 112. Ordinary Cate Varies in Every Case. 

There can be no exact direction by which the general rule 
can be applied to determine what is ordinary care, as it neces- 
sarily varies in each particular case. The defendant must 
exercise ordinary care and diligence in the maintenance of 
his property, but cannot be compelled to go beyond such re- 
quirements. 

In Jennings v. Tompkins, 180 Mass. 302, the plaintiff had 
purchased a seat in the fourth row of the gallery of the de- 
fendant’s theater, and while walking down the. wooden steps 
of the aisle to go out, he fell and seriously injured his knee. 
He testified that he felt the stair give slightly; that his heel 



CONSTRUCTION AND MAINTENANCE 123 

caught and that he fell face downwards. The plaintiff also 
introduced evidence that the tread of the stair in question 
was made of a seven-eighth inch board; that it did not pro- 
ject beyond the riser on which it rested; that it was worn 
thin by use and that there was a nail protruding about one- 
sixteenth of an inch; that the board gave a little when 
stepped on, and that when a person stepped on the tread the 
nail stuck up about three-sixteenths of an inch. 

“ We think that a jury would be authorized in finding that 
the plaintiiTs heel caught on this nail. This case, therefore, 
presents the general question how far a board can be allowed 
to be worn down by use without its being a defect as against 
persons who have a right to use it. The line must be drawn 
somewhere, and it is necessarily to some extent an arbitrary 
matter where it is to be drawn. We are of opinion that if 
the board is worn so that a nail projects three-sixteenths of 
an inch there is not a defect.” 

§ 113. Care Extends to Constmction, Maintenance and Manage- 
ment. 

A person erecting and maintaining a structure or place for 
public exhibitions must use reasonable care in the construc- 
tion, maintenance and management of it, having regard to 
the character of the exhibitions given and the customary con- 
duct of spectators who witness them, and the act of a spec- 
tator, who is injured by the falling of the guard rail upon 
which he was leaning in front of the gallery, must be ju^ed 
according to the conduct which ordinarily prudent people 
show under like circumstances. In this case it was shown 
that others leaned on the same guard and thereby contributed 
to the accident. It was, however, held that the defendant 



124 CONSTRUCTION AND MAINTENANCE 


could not escape liability if he was negligent in the manner 
in which the guard rail was constructed and maintained, if 
the plaintiff was in the exercise of due care, although other 
persons may have contributed to the injury. The manager 
does not avoid liability for negligent construction even though 
he has employed a competent person to do the work, and has 
no supervision over the same. 

Fox V. Buffalo Park, 21 N. Y. App. Div., 321; 163 
N. Y., SS9. 

Francis v. Cockrell, L. R. 5 Q. B., 501 ; 23 L. I., 466. 

A person erecting and using a hall for amusement purposes, 
a fair ground or recreation park must use reasonable care 
in the construction, maintenance and management of it, hav- 
ing regard to the character of the exhibitions given and the 
customary conduct of spectators who witness them, and the 
acts of the spectator must be judged according to conduct 
which ordinarily prudent people show under like circtun- 
stances. 

Schofield V. Wood, 170 Mass., 415. 

Hart V. Washington Park Club, 157 111 ., 9. 

While in ordinary cases in the leasing of buildings there 
is no implied warranty on the part of the lessor that the 
buildings are fit and safe for the purposes for which they are 
leased, the rule is different when applied to buildings and 
structures in which public exhibitions and entertainments are 
designed to be given and for admissions to which the lessors 
directly or indirectly receive compensation. In such cases 
the lessors or owners of the buildings or structures hold out 
to the public that the structures are reasonably safe for the 
purposes for which they are let or used and impliedly under- 



GENERAL RULE OF CARE 


take that due care has been exercised in the erection of the 
buildings. This is true of a tent or temporary booth. 

Fox V. Buffalo Park, 21 App. Div. (N. Y.)» 321. 

Francis v. Cockrell, L. R., 5 Q. B., 501. 

Wendell v. Baxter, 12 Gray, 494. 

Campbell v. Portland Sugar Co., 62 Me., 552. 

§ 114. The General Bnle Governing Manager and Patron. 

The reason of the rule is apparent : the place of entertain- 
ment is public, a place where people consort in numbers and 
wherein they are controlled and located as the management 
directs. There is no reason to suppose that the individual 
who attends will, before entering, inquire as to the condition 
of the building, as to whether the floor is secure, the seats 
safe, or the chandelier strongly in place. His care ends in 
this respect by behaving in an orderly, careful and reasonably 
observant manner and remaining in the portion of the build- 
ing or grounds dedicated to his use. He must not become 
a trespasser by invading a part of the premises where he 
knows he has no right to go, for then he ceases to be a 
patron and becomes a trespasser and acting at his own peril. 
But while within his rights he can properly be considered in 
the exercise of due care, and is to be protected from the neg- 
ligence of the manager or of his servants or agents, in all the 
particulars enumerated. 

This authority to enter upon the premises of another to do 
a particular act or series of acts, although given by a ticket 
or other written evidence, is merely a license and subject to 
all the conditions and limitations thereof. 

Cook V. Stearns, ii Mass., 533. 

Oxford V. Leathe, 165 Mass., 254. 

Post, § 139- 



126 


PATRON MUST BEHAVE 


The manager is in quite the same position as a shopkeeper 
who invites the public to his shop to inspect and purchase the 
articles he has on exhibition, being bound to keep his premises 
in a reasonably safe condition for the purposes for which they 
are used. If they are not in proper condition and a person is 
injured while in the exercise of due care and not transcending 
the license given him, the proprietor becomes liable for the 
injuiy. 


Gilbert v. Nagle, ii8 Mass., 278. 
Conradt v. Clauvc, 93 Ind., 476. 


§ 115. Patron Must Hot Misbehave or Violate the Conditions of 
His Admission. 

‘While this invitation or right of admission is a license, yet 
it does not justify any misbehavior on the part of the licensee, 
and if he transcends his license, then he becomes a trespasser 
(A initio and has only the rights of a trespasser. 


Sterling v. Warden, 51 N. H., 217, 

This right of admission, though affording protection, is 
limited in its duration by any express provisions of the 
contract. 


Mason v. Holt, i Allen, 45. 

The manager is not liable as an insurer of the safety of his 
patrons ; he is only bound to exercise reasonable care for their 
safety. 


Dunning v. Jacobs, 15 Misc. (N. Y.), 85. 



EXTENT OF GENERAL RULE 


127 


§ 116. Duty as to Outside of Building. 

The owner of a building, under his control and in his occu- 
pancy, is bound as between himself and the public to keep 
it in such proper and safe condition that travelers on the 
highway shall not suffer injury. 

Gray v. Boston Gas Light Co., 114 Mass., 149. 

§ 117. The Extent to which the Buie Applies. 

The lobbies, entrance vestibules, retiring-rooms and all the 
approaches to and parts of the theater or premises under 
the control of the management alike come within the principle 
stated. That the place is constantly frequented by large num- 
bers of people is an added burden to the manager’s exercise 
of reasonable vigilance in seeing that his premises are safe 
and that no displacements of the structural conditions or fix- 
tures are allowed to remain in dangerous or defective condi- 
tion. This rule really demands a constant and rigid inspection 
of the condition of the property, for in no other way can the 
manager be in the exercise of reasonable care. A seat may 
become brdken during a performance, but, at the time, do 
no injury, yet if not repaired may cause damage to the person 
or clothing of the next occupant. While this could not be 
discovered and remedied on the instant or during that one 
performance, yet with reasonable inspection it could be dis- 
covered before the theater was next opened to the public, and 
if not, the manager would still be responsible for any injury 
sustained, as it is a matter he should ascertain. 

§ 118. The of the Defect ImmateiiaL 

The way or maimer in which a defect arises does not alter 
the rule of liability. A trespasser may wrongfully and even 



128 


ORIGIN OF DEFECT 


maliciously cause a defect by breaking a seat, loosening a hand 
rail or placing some substance or matter where it will be likely 
to cause injury. Here the defect starts as an act of a wrong- 
doer, and it is apparent that the management cannot be held 
responsible because this is done, yet if allowed to continue 
after a reasonable period in which the manager might inspect 
and discover the defect so caused, even though he has no real 
knowledge of the same, he becomes liable therefor to the same 
extent and purpose as if he himself had caused it. The 
protection of the public demands a rule of such strictness, for 
otherwise there would be no limitation as to when defects 
should be remedied and patrons safeguarded. 

To leave banana skins on the floor or stairs, to allow nails 
to protrude from a seat, or to tolerate an3rthing which could 
reasonably lead to injury is not due care. All such require- 
ments are well within the rule that the manager must keep 
his premises in a reasonably safe condition at all times. 

Currier v. Boston Music Hall, 135 Mass., 414. 

Bard v. N. Y., etc., R. Co., 10 Daly, 520. 

§ 119. Time Sufficient to Establish. liability. 

Twenty-four hours has been held a sufficient time to charge 
the owner with notice of a defect in the stairs of his place 
of amusement 

Butcher v. Hyde, 10 Misc. (N. Y.), 275. 

A shorter period would doubtless suffice in other instances, 
which must be governed by the circumstances surrounding a 
particular case. 

A manager has been held responsible for injury caused 



WHERE PATRON MAY SIT 


129 


by a drunken man to a spectator when he had sold him the 
liquor on the premises and with knowledge of his quarrelsome 
disposition. 


Mastad v. Swedish Brethren, 83 Minn., 40. 

While the rule is broad it does not mean that the proprietor 
must avoid or insure against all conditions which could result 
in injury; he may regard many things as possible of happen- 
ing for which he will not have to answer, but if the jury fods 
that the use made of the premises was something which he 
was bound to have contemplated, he is liable for any neglect 
of proper precautions to make it safe. 

Edwards v. New York & Harlem Railroad, 98 N. Y., 245. 

Joyce V. Martin, 15 R. I., 558. 

Oxford V. Leathe, 165 Mass., 254. 

Higgins V. Franklin County Agri. Soc., 100 Me., 563. 


§ 120. Where Patron Hay Go or Sit. 

A patron may occupy any place or seat which is provided, 
and does not assume any risk by so doing, as he has a right 
to suppose his safety is under the care of the management, and 
that the place designated for his use and comfort can be 
occupied in security. 

For this reason he can occupy a front seat in a theater 
and not be negligent in so doit^, and can recover damages for 
an injury sustained by the falling of a performer from a 
trapeze upon him, while occupying such place. 


Fox T. Dougherty, 2 W. N. C., 417* 



130 INJURY CAUSED BY PERFORMER 
§ 121 . Injury Caused by Performer. 

In Thompson v. Lowell, etc., Ry. Co., 170 Mass. 577, the 
defendant under authority of a statute maintained and carried 
on a recreation park which contained a large platform or 
stage for exhibitions. The defendant entered into a written 
contract with a manager, under which the latter furnished 
and managed various entertainments there, and among them 
an exhibition of marksmanship by a man bom without hands. 
The defendant paid for advertising the exhibitions and carried 
posters on its cars. The plaintiff, having seen an advertise- 
ment, was a spectator at the exhibition of marksmanship, 
having come on one of the defendant’s cars. A butt was pro- 
vided to receive the bullets. All the appliances were furnished 
by the manager or the performer and nobody in the defend- 
ant’s employment exercised any supervision or control over 
the performance. Immediately after a shot had been fired, 
something struck the plaintiff in the eye. It was not made 
plain just how the accident occurred, but on the evidence the 
jury might have found that the plaintiff was struck in the eye 
by a small fragment of a bullet, or other metallic substance, 
which flew from the impact when the bullet hit the butt. 
There was no suggestion that he was not himself in the exer- 
cise of due care, or that he was not in a place provided for 
spectators. The defendant asked for ^ instruction to the 
jury that it “ was not responsible, unless the exhibition was in 
its nature such that it would necessarily bring wrongful con- 
sequences to pass, unless guarded against, and the defendant 
failed to exercise due care to prevent harm.” The judge 
instead instructed the jury that “ the defendant is not respon- 
sible unless the exhibition was in its nature such that it would 
necessarily or probably cause injury to some person present- 



INJURY TO PATRON 131 

under the defendant’s invitation, unless guarded against, and 
the defendant failed to exercise due care to prevent harm.” 

The court held that the fact that the exhibition was pro- 
vided and conducted by an independent contractor would not 
wholly relieve the defendant from responsibility, provided it 
was of such a kind that it would probably cause injury to a 
spectator unless due precautions were taken to guard against 
harm. The instruction as given was right 

Curtis V. Kiley, 153 Mass., 123. 

Richmond & Manchester v. Moore, 94 Va., 493. 

Hawver v. Whalen, 49 Ohio St., 69. 

See ante, § 108. 

In Herrick v. Wixom, 121 Mich. 384, plaintiff was injured 
by the explosion of a giant firecracker thrown by one of the 
clowns in a circus. The defendant was held liable, and the 
fact that the plaintiff forced his way into the show tent, where 
he was injured, did not preclude a recovery, since the duty of 
reasonable care is owed even to trespassers when their presence 
is known. 

In Kendall v. City of Boston, 1 18 Mass. 234, a city for the 
purpose of a concert hired a public hall and employed a person 
to decorate it. Among the decorations was a bust placed on 
the outside of a balcony. Plaintiff sat in a seat on the floor 
of the hall immediately under the bust. The audience were 
requested by the programme to rise at a certain part of the con- 
cert, and when they did so, the bust fell from its place and 
injured the plaintiff. No evidence was offered as to the 
manner in which the bust had been attached to or placed upon 
the balcony, or as to whether it had been properly secured, 
.and the plaintiff relied simply upon the fact that it fell, as 
evidence of negligence on the part of those whom she claimed 



132 


DUTY TO SPECTATOR 


to be responsible for the decoration of the hall. The court 
held that it was not sufficient for the plaintiff to show that the 
injury might have been occasioned by the negligence of him 
she sought to charge with it; that if there were other causes 
which also might have produced it she was in some way to 
show that these did not operate; that without some evidence 
as to the manner in which the bust was attached or secured its 
fall alone did not furnish sufficient evidence of negligence. 
This position is not inconsistent with the general rule except 
that it goes to the full extent of the requirement of showing 
that the defendant was negligent. 

§ 122. The Spectator ICnst Not he Negl^^ent. 

The patron must exercise due care, otherwise he will be 
guilty of contributory negligence and cannot recover for injury 
sustained. 

Where the entrance to a place of amusement is by a lighted 
hall and stairway, both familiar to the plaintiff, he is guilty 
of contributory negligence in leaving such way and stepping 
outside the building in the dark upon a platform from which 
he falls because it is unprotected by a railing. 

Johnson v. Wilcox, 13s Pa., 217. 

In an action for injuries sustained by plaintiff in falling 
from the gallery of the defendant’s theater, it appeared that 
he was walking back of the second row of seats when he 
slipped or stumbled and fell over those in front and over the 
parapet, which with the guard rail was over three feet high, 
that the floor had a slope of 55 d^ees, and the plaintiff had 
been in the gallery before, and that the theater had been in 
use many years and no such accident had ever occurred before. 



PROPER PROTECTION 


133 

It was held that these facts did not show negligence in the 
construction of the building. 

Dunning v. Jacobs, 15 Misc. (N. Y.), 85. 

While the spectator is entitled to protection and to have 
his safety guarded with care, he must not go where he has 
no right to, and if he does, he must be taken to have assumed 
the risk. 


Johnson v. Wilcox, 13 s Pa. St, 217. 

If the manager of a public amusement enterprise does all 
he can within reason to prevent injury by erecting suitable 
barriers, railings and the like, he cannot be held responsible 
for the injuries occasioned by a runaway horse on a race track 
or for injury to a spectator caused by the bolting of a horse 
from the race course. The test in such cases is whether the 
grand stand, seats, rails and barriers were suitable and prop- 
erly erected with a view to protection in case of the happening 
of what might reasonably be expected in the conduct of such 
an entertainment. 

Hallyburton v. Burke County Fair Assoc., 119 N. C, 
526. 

Hart V. Washington Park Club, 157 111 ., 9. 

Barton v. Pepin County Agri Soc., 83 Wise., 19. 

Selinas v. Vermont State AgrL Soc., 60 Vt., 249. 

§ 123. Protection from Pire and Other Causes. 

The same principle of law requires that the manager make 
reasonable provision to protect his patrons from injury by 
fire, and he must exercise the same care over his stage appli- 
ances and combustible matter used in productions as he does 



134 PROTECTION AGAINST FIRE 

in respect to seats, entrances and other portions of his theater. 
He must reasonably guard against the possibilty of fire from 
all sources which are or should be within his knowledge. He 
is required to strictly conform to laws made in respect thereof, 
as his failure to obey is a matter of wrong the result of which 
he is answerable for. He must adopt such reasonable devices 
for fire protection as are commonly and generally used, and 
these must be maintained in proper working order, but he can- 
not be expected to go beyond what is reasonable in this 
respect. It is a question of reasonable diligence in all matters, 
and he is not accountable save for such causes as are legally 
within his control and subject to his care. While he is respon- 
sible for a fire caused by explosives or inflammable matter used 
in the performance or for not preventing gas lights from 
igniting scenery, he is not accountable for a fire caused by 
the careless dropping of a match by a patron ; for in the first 
two instances only, the cause is under his supervision and con- 
trol and within the range of his protective ability. 

The test is whether the origin of the trouble was a matter 
which he was bound to guard against or prevent, or, if occur- 
ring from any cause, he has at hand such proper means as the 
law can require to control it. If he has used reasonable pru- 
dence and care and done all that any reasonable man could 
have done in the way of vigilance and providing methods of 
protection, the requirements of the rule are satisfied. He is 
not an insurer of the lives and safety of his patrons and not 
bound to protect them at all hazards. When he has done what 
reasonable care can demand he can be expected to do no more. 

The rule requires constant vigilance. The lives of a great 
many- people are under his protection and the responsibility 
is grave. The greater the risk correspondingly greater must 
be the care, and no element of negligence should creep in. To 



PROTECTION OF PATRON 


135 


merely install a system of protection against fire is not enough : 
it should be reasonable and carefully tested so as to insure 
its working at the needed time. The installation of the newest 
device is no protection against liability if it fails to work 
through lack of care of the management. The requirements 
of the rule apply as strictly in such cases as elsewhere. 
For the same reason a patron must be protected from appli- 
ances or properties used on the stage which might fall or 
break and cause injury, as, for instance, the breaking away 
of a trapeze or wire rope which goes over the auditorium, the 
escape of steam or flame used in a scene, the breaking of glass 
or negligent use of stage properties. 

See ante, § 108. 

These are matters which must be safeguarded against and 
for which the management is strictly accountable; they are 
elements of danger, which he employs at his peril and from 
which his audience has the right of protection. No reasonable 
man would frequent a place of amusement if he expected to 
be injured while there, nor could any rule founded on reason 
require him to be on the watch to avoid harm from the prop- 
erties and implements used in the entertainment furnished for 
his amusement. 

The general rule has no application where a person is not 
induced or invited to enter upon the premises and does not 
go there on any matter of business or mutual benefit, but 
solely for his own amusement. In such a case the owner or 
proprietor owes him no duty except to abstain from injuring 
him by active misconduct on his part. 

Shea V. Gurney, 163 Mass., 184. 

Herridc v. Wixom, 121 Mich., 3^ 



136 FREE SHOWS 

§ 124. Free Shows or Public Exhibitions, the Bnle of Care Be- 
qnired. 

We have been discussing the class of cases which pre- 
supposes a paid admission fee, but a different doctrine has been 
enunciated as applying to free or public shows, or a free exhi- 
bition in a public place, street or square. 

In Scanlon v. Wedger, 156 Mass. 462, the plaintiff was 
injured by the explosion of a mortar used in a display of fire- 
works in a square which was a public highway in the City 
of Chelsea. The display was made by the defendant, who 
acted under a license from the mayor and aldermen for a 
display of fireworks in said square. The defendant used rea- 
sonable care and the plaintiff was a voluntary spectator. It 
was contended that the mayor and aldermen had no authority 
to issue a license under the statute. The court held that, 
‘‘Under this state of things it must be considered that the 
plaintiffs were content to abide the chance of personal injury 
not caused by negligence, and that it is immaterial whether 
there was or was not a valid license for the display. If an 
ordinary traveler upon the highway had been injured, differ- 
ent reasons would be applicable, 

Vosburgh v. Moak, i Cush., 453. 

Jenne v. Sutton, 14 Vroom, 257. 

Conradt v. Qauve, 93 Ind., 476. 

“ But a voluntary spectator, who is present merely for the 
purpose of witnessing the display, must be held to consent to 
it, and he suffers no legal wrong if accidentally injured with- 
out negligence on the part of anyone, although the show was 
unauthorized. He takes the risk. See Pollock on Torts, 
138-144.” 

The court, however, was not unanimous in this decision, 



STREET SHOWS 


137 


and a dissenting opinion was rendered in which it was said: 
“ There is nothing to show that they (the spectators) had any 
knowledge or suspicion that they were incurring any risk 
by being where they were* An inference or a conclusion 
that they were not unaware of the risk rests, it seems to me, 
entirely on assumption. 

“ The most that can be said of them is that they knew all 
the facts material to the risk, and appreciated and understood 
it. It is carrying the doctrine of assumption of the risk 
further than I think it has ever been carried to say that one, 
who, being lawfully on the highway and in the exercise of 
due care, observes as a spectator an unlawful and dangerous 
exhibition in it, assumes the risk of injury from it. The 
exhibitor is bound at his peril to see that he has a valid license. 
If he selects the highway for an unlawful and dangerous 
display designed or calculated to attract the public, he, and 
not the spectators, assumes the risk of injury. It is of no 
consequence that the defendant exercised reasonable care in 
firing the bomb. 

It is a contradiction of terms to say of one engaged in an 
unlawful, dangerous, wrongful and unjustifiable business, 
that he used due care in it. Due care is predicated of some- 
thing which by his negligent manner of doing it may become 
injurious to others; not of something which he has no right 
whatever ta do.” 

§ 125. The Care of Bill Boards. 

In the line of a manager’s duties comes the burden of look- 
ing after bill boards for advertising purposes which are main- 
tained by him. If one gets out of repair, blows down, or 
through any neglect causes damage, he is liable, and if the 
same is on a public way and blows down, the city or town 
becomes liable, too. Although in the latter instance a munici- 



138 CONTRACTOR AND CONTRACTED 


pality is primarily liable, the manager would have to reimburse 
the city for whatever damage it had to pay on account thereof. 

Lanagan v. Atchinson, 35 Kan., 318. 

§ 126. Rule of Liability when Relation of Contractor and Con- 
traotee Exists. 

The general rule is that he who does the injury must 
respond The well-known exception is that the employer 
shall be responsible for the doings of the employee, whom he 
selects, and through whom, in legal contemplation, he acts; 
but when the person employed is in the exercise of a distinct 
and independent employment and not under the immediate 
supervision and control of the employer, the relation of master 
and servant does not attach. The distinction upon which the 
cases turn is whether the relation of master and servant exists 
or that of contractor and contractee. In the case of a wrong- 
ful act done by another, it is not the manager himself who 
caused the injury. It must be done by one acting by his com- 
mand or request and by one whom he had the right to com- 
mand, over whose conduct he had the efficient control, whose 
operations he might direct and whose negligence he might 
restrain. This establishes the relation of master and servant. 
Where, however, there is a contract of employment and one 
has entered into a contract to do certain things for a stipu- 
lated sum, there is established the relation of contractor and 
contractee, as here the person employed is in the exercise of 
a distinct and independent employment, and while the one 
for whom he is performing the service may suggest the way 
and manner in which it may be done, such suggestions can be 
repudiated, as the real status of the purpose is defined by the 
contract, and by law there is no power or right to command 
or direct the conduct of one performing the service under a 
contract. 



BILL POSTING 


139 


If the relation of contractor and contractee actually exists, 
then the contractor must respond for whatever injury he occa- 
sions, and there is no liability on the part of the one from 
whom he has the contract This rule is well established, and 
it would seem advisable in such matters of outside work as 
bill posting- and distributing, where the manager is unable to 
direct and pass upon the various acts which may be done and 
which often become trespasses, to have such service rendered 
under a specific contract of such a nature as to exclude any 
possibility of the legal establishment of the relation of master 
and sen-ant, for “when * * the person employed is 

engaged under an entire contract, for a gross sum, and in an 
independent operation, not subject to the direction or control 
of his employer, the relation is not regarded as that of master 
and sen^ant, but is said in modern phrase to be that of con- 
tractor and contractee; and the negligence of such contracting 
party, or of his sen’-ant, cannot be charged upon him for 
whom the work is contracted to be done. The question in 
these cases, whether the relation be that of master and servant 
or not, is determined mainly by ascertaining from the contract 
of employment whether the employer retains the power of 
directing and controlling the work, or has given it to the con- 
tractor.” To secure this protection the contract should be 
clear and explicit and in no uncertain terms. 

See post, § 184. 

Forsytlv v. Hooper, ii Allen, 419. 

Hilliard v. Richardson, 3 Gray, 349. 

Linton v. Smith, 8 Gray, 147. 

Brackett v. Lubke, 4 Allen, 138. 

The manager assumes the duty of protecting his patrons 
from the negligence and assault of his employes. See posf^ 
§ § 176, 182. 




THE DUTY OF THE MANAGER TO PROTECT HIS 
PATRONS FROM FIRE AND PANIC 




PREVENTION OF FIRE 


143 


CHAPTER VII 

§ 127. Manager Must Eegard Patrons’ Safety. 

As already stated, the manager is bound to use all reason- 
able care to make his theater or place of amusement safe for 
his patrons. This rule cannot be fixed by any definite measure- 
ment, and is solely determined on the facts which surround 
the particular place and occasion, with due regard to the 
nature of the entertainment given. 

A production using firearms, lights, mechanical contriv- 
ances producing flame, materials of inflammable nature, such 
as fireworks or like substances, should be guarded with great 
care ; their dangerous nature is known, and the manager must 
use ever}" precaution to avert fire. He legally assumes the 
risk of using such dangerous substances. The more dan- 
gerous the material employed just so much more care is 
exacted to conform to the rule of reasonable effort to prevent 
injury. 

The origin of most theater fires has been on the stage and 
occasioned by decorations catching fire from some carelessly 
guarded source, the accumulation of rubbish and waste, or 
the careless use of inflammable substances. The nature of the 
materials used, and in fact the stage itself, lends many pos- 
sibilities of fire, which can be restricted, but probably never 
entirely overcome. 

Even in the most modem theater a portion of the stage 
must be of wood; the scenery, though fireproofed, at best an 
expensive and useless process, remains inflammable under cer- 



144 PREVENTION OF FIRE 

tain conditions ; the furniture, draperies and rugs used are cotn- 
never be wholly fireproof. Much can be done to lessen the 
bustible; in short, a stage equipped for theatrical uses can 
amount of inflammable material used, but to obtain the effects 
and realism required by the public, real materials must be 
used, and so long as they are composed of substances which 
will bum, just so long is a fire possible, and a matter to be 
guarded against in every reasonable and intelligent way. 
There is no rule of law which condemns an old theater or 
treats it in any manner as beyond the rule of reasonable care. 
While modem constraction is an improvement in many ways 
over the old, it cannot be fairly said that a new theater is 
less liable to fire than an old, or any safer from disaster. 

The starting of a fire has generally nothing whatever to do 
with the building itself, and asdt commonly originates in over- 
sight, accident or n^ligence, it is as likely to occur in one 
place as another. Accumulations of dirt and rubbish in out 
of the way places under and about the stage are dangerous as 
starting places for fire and should be eliminated. 

§ 128. Prevention and Control of Pire. 

The question is simply one of prevention and control. Pre- 
vention is the personal element of careful supervision adopting 
such methods to existing circumstances as will m i n i mize all 
chances of fire, and control, the plain duty of providing all 
reasonable methods of putting out or holding in check a fire 
which has started. Legally no more can be required, and 
while in an old theater there is the duty of discarding obsolete 
methods of protection for new ones, when this is done the 
manj^er is quite as well within the rale of reasonable effort 
as the owner of an entirely modem house. Legislatures and 



PREVENTION OF FIRE 


I4S 


city governments in passing laws for fire protection applicable 
to theaters seem in many instances to lose sight of the impor- 
tant fact that structural conditions are of slight importance as 
compared to the methods and appliances which can be installed 
for the purpose of checking and stopping a fire. And all 
these are of no protection whatever, unless in working con- 
dition, with those in charge who know how to direct their 
operation. The matter for consideration is not whether the 
building is fireproof (and we doubt if there are any absolutely 
such), new, old, of wood, of iron, of stone, but simply is it 
equipped with such appliances as will hold the fire in check 
and keep the carbonic-oxide, hot air and smoke away from 
the auditorium for a time sufficient to allow the escape of the 
spectators? This requires a small inter\'al of time, for a 
theater empties very rapidly ; yet, on the other hand, five min- 
utes may become fatal to life from the generation of gases 
and accumulation of smoke. It is safe to state that the 
audience is never in danger of actual burning by contact with 
flame from any fire which originates on the stage, for in no 
theater, whether of old or new construction, could the flames 
spread faster than the people can vacate. As to the control 
of carbonic-oxide and hot air, that can be accomplished as 
well in an old structure as a new. The age of the building does 
not interfere with the installation of modem appliances which 
prevent or control fire and the adoption of rules and regula- 
tions tending to check carelessness of actors and stage hands. 
It is in such matters of precaution, rather than in structural 
condition, wherein safety lies, and to which attention should 
be given. The most disastrous catastrophe of recent date 
occurred in a new theater, which combined elegance with all 
that was new in the way of construction and was provided 
with every known appliance for fire protection. There, how- 



146 


UNWISE LEGISLATION 


ever, modem construction with liberal exits, aisle space and 
fireproof materials availed nothing, because the appliances 
for checking the flames and carrying away the hot air and 
gases were defective or inoperative, and although equipped 
with fire curtain, ventilators, and a solid wall between audi- 
torium and stage, the curtain was only part way lowered and 
the ventilators were covered and could not be opened; all of 
which resulted in a great and unnecessary loss of life. 

From this and other instances it is fairly demonstrated that 
a theater depends, not on its construction, but on its appli- 
ances for protection. Every theater or hall as it differs in 
form and location must also differ in the methods for safety 
which it adopts. No one rule or method can be of universal 
application, except in certain general details. 

§ 129. TTnwise Legislatioii. 

No specific law can be enacted which can reasonably or 
safely apply in the same way to all places ; this would not be 
reasonable or just A method might be suitable in one place 
and entirely useless in another. So of all protective require- 
ments, each place must be made safe according to its own 
needs. 

Legislative action adopting an inflexible rule with no oppor- 
tunity of substituton or discretion in the enforcing officer, 
not only works a hardship on owner and manager, but opens 
the way to disaster and loss of life, for many laws have been 
proposed, if not enacted, which are absurd and distinctly dan- 
gerous. While old buildings may be more difficult to adapt 
for protective appliances than modem ones, it is merely a 
matter of additional trouble or cost, and when thoroughly 
equipped both are equally safe, for the well-recognized protec- 



WALL BETWEEN STAGE AND AUDIENCE 147 


tive measures are matters of appliance and addition and not 
structural in nature. 

The question under discussion is not how to save the build- 
ing and conserve the property, but solely how to check the 
fire and its attendant evils until an audience has had time to 
escape. The loss of the property does not concern the public; 
its interest is to know that provisions are ample and sure to 
guarantee the escape of the spectators. 

In small towns the theater is destitute of much in the line 
of protective nature, owing to inadequate water supply, cheap 
construction and the use of buildings for theater purposes 
never designed for such, depending on oil or gas for light and 
having many other features which are not commendable. The 
liability of the manager here is correspondingly great, and he 
should be very alert and watchful in preventing injury to his 
patrons, and should install whatever he can of a protective 
nature. The use of an improper and badly equipped building 
for theater puiposes is clear negligence, and the manager in 
such instance is virtually an insurer of his patrons’ safety, and 
bound at all hazards to provide for it. 

Fire protection demands in all theaters and halls used as 
such: 

1. A dividing wall between stage and auditorium. 

2. A fire-resisting curtain. 

3. Ventilation over the stage. 

4. Water curtains and sprinklers. 

5. Trained stage hands. 

6. Inspection. 

§ 130. Dividing Wall Between Stage and Anditoiinm. 

Every stage should be separated from the auditorium by 
a fire-resisting wall of suitable thickness, having not more 



148 


THE FIRE CURTAIN 


than two (better one) openings communicating with the stage 
which should at all times be closed with fire-resisting, self- 
closing doors, covered with metal and of sufficient weight 
and thickness to prevent the escape of flame and gas. These 
doors should at all times be kept tightly closed. No ventilating 
apparatus of any kind should connect from the stage to the 
auditorium through this wall. It is imperatively necessary 
that such wall, when the curtain is down, provide an abso- 
lute barrier between stage and auditorium sufficient to prevent 
the escape of flame, smoke and gas. 

§ 131. A Fire-Besistmg Curtain. 

The fire wall referred to aflFords no protection unless the 
stage opening can be closed in l>y a fire-resisting curtain, 
which should be adjusted to admit of a sure and quick lower- 
ing and so arranged at its sides as to overlap or enter into 
the proscenium arch sufficiently to prevent the escape of flame 
or gas at its sides. A groove is sometimes used, but is open 
to objection as retarding or blocking the curtain in its fall. 
The curtain should be of fire-resisting material; combined ex- 
perience indorses as the most practical one of thick and firmly 
woven asbestos cloth. Such are exclusively used in the modem 
theater, and while in no sense of the word fireproof, are never- 
theless sufficiently fire-resisting and thick to keep the flames 
and gases in check until the audience has escaped. 

An asbestos curtain is not fireproof; asbestos cannot be 
woven alone, and necessarily has to be adulterated with cotton. 
Its chief virtue lies in its non-inflammability and the fact that 
it does not bum. Although it will go to pieces under con- 
tinued and intense heat, before doing so it must have been 
subjected to continued and actual contact with the flames. 



STAGE VENTILATION 


149 


While in place it proves a complete barrier for smoke and 
flame and hides from the audience the sight of fire, which, 
when unscreened, adds materially to the fright and confu- 
sion. 

Of metal curtains nothing can be stated in their favor; the 
best are of corrugated iron or steel, which, though strong and 
fire-resisting, are hea\"y to handle and verj' liable to get stuck 
in the grooves in which they must slide. They are often out of 
order and of uncertain dependence, and have been the cause 
of several catastrophes abroad by failing to lower properly 
w'hen required, or when in place likely to be bent by heat, 
thereby opening another avenue of danger. 

Reasonable care demands that the manager see that the 
mechanism for the raising and lowering of a suitable curtain 
is perfect from a mechanical point of view and in operating 
order at every moment when the theater is in use. This curtain 
should be managed from the stage level and from some other 
advantageous place. Its operation should be understood by 
more than one of the stage employees to insure its use at a 
time of emergency. For no matter how' good the curtain, 
it is of no use unless it can be instantly and properly lowered 
into place. Its immediate availability is the chief advantage. 

§ 132. VentilatioTL Over St^. 

The actual contact with flames is of small moment as com- 
pared to the danger arising from carbonic-oxide gases and 
hot air, causing suffocation, and the inrush of smoke through 
the proscenium arch into the top of the auditorium. 

To keep these gases and smoke away from the audience is 
of paramount importance. To accomplish this an area of ven- 
tilating space directly over the stage should be provided. 



ISO VENTILATORS OVER STAGE 

This is generally in the form of skylights or flues which open 
automatically or by means of ropes which can be released or 
cut. The ropes are made of inflammable material which will 
bum when touched by flame. To depend entirely upon these 
ropes to release the ventilators is of doubtful value, and fusible 
links should be employed for opening all smoke vents. This 
matter will be referred to farther on. These ventilators afford 
a simple and wholly effective method of carrying away gases 
and smoke from a fire, and will undoubtedly accomplish more 
for the safety of the public than all the other provisions of 
the most elaborate building law. The principle is that of the 
old-fashioned fireplace: the air in the auditorium escaping 
upwards creates a draft which carries away the smoke and 
gases from the burning matter. The value of this method 
should not be offset by too many exits in the rear of the stage 
or of the auditorium. For the ventilating spaces over the 
stage are deprived of their usefulness if the open spaces out 
from the rear of the auditorium or stage are of greater com- 
bined area and create a counter draft. Such would tend to 
draw the gases and smoke to the audience and not away from 
it, causing the very harm it is vitally necessary to avoid. The 
ventilators should be sufficient to carry away and control the 
smoke and gases. Many cities require the area of ventilating 
space to be at least one-tenth of the open area of the stage; 
which can never be too great and will not cause a down draft, 
as has sometimes been suggested. The gases and smoke drawn 
to the audience are quickly fatal, and the demand that many 
wide exits from auditorium and stage, although liable to 
make a counter draft, are necessary, as allowing an ideal 
method of escape, is erroneous. Gas and smoke can travel 
faster than man, and as he must traverse the auditorium to an 
exit and must be delayed in so doing, a few seconds can prove 



THE AUSTRIAN EXPERIMENTS 151 

fatal. While the idea of a ventilating space over the stage 
is excellent and imperative, the ventilator or flue which pro- 
vides it must be so constructed as to allow of an immediate 
opening. Such ventilator or damper should be so perfectly 
constructed and equipped as to work promptly and accurately 
in a moment of need, and should at ail times be kept free 
from every kind of obstruction and under no circumstances 
covered with anything, no matter how flimsy or trivial the 
material used may be. An awning over a skj-light will pre- 
vent the advantage provided by the open area. 

In the Austrian experiments which occurred at Vienna 
November 22, 1905, tests made by burning old scenery' and 
sheets of paper representing proportionately the amount of 
combustible matter which might generally be used in two 
stage performances, demonstrated that with smoke vents of 
a total area of eleven per cent of the stage area open, the 
smoke ascended through these vents over the stage with no 
suggestion of danger to the persons in the auditorium, except 
that near the proscenium opening the heat was somewhat 
severe. In tests with the stage vents closed and curtain down 
it bulged out toward the audience and lifted from the floor 
at the bottom and the auditorium was soon filled with smoke. 
In a later experiment with sprinklers spraying the fire, on 
opening a door or ventilator in the auditorium gallery some 
steam and hot gases were drawn into the auditorium, although 
the stage smoke vents were open. This latter experiment 
clearly demonstrated the danger of too much direct ventila- 
tion in the auditorium proper and the danger of wide exit 
spaces in the upper portions of the building, which provided 
a counter draft. 

These valuable tests were made at the expense of the 
Austrian Government on recommendation of the Austrian 



152 THE AUSTRIAN EXPERIMENTS 

Engineers and Architects’ Association, and took place in a 
specially constructed model theater of about one-third the lin- 
ear dimensions of the ordinary theater, with about one-twenty- 
seventh of its cubic capacity. This structure was of reinforced 
concrete with the usual stag^, proscenium opening and audi- 
torium. The tests further demonstrated that a steel prosce- 
nium curtain was no safeguard for the protection of the 
audience, as the air pressure due to expansion prevented it 
from lowering promptly, and even when in place the gas and 
smoke were forced past its loosely fitting edges into the audito- 
rium. Throughout all of the tests it was amply demonstrated 
that with the smoke vents open, the ventilator in the audi- 
toritim closed and the exit from the gallery closed, that a 
proscenium curtain was hardly necessary. 

From these practical tests it can be seen that the ventilat- 
ing space over the stage is of the first and greatest importance. 
Safety, however, depends upon the ventilators being immedi- 
ately opened, and for this purpose fusible links can better be 
relied upon than a cord of combustible material. Such links 
melt open at about 162 degprees Fahrenheit, long before the 
flame reaches them, while a cord of combustible material, 
unless cut, only severs on actual contact with the fire, which 
may not reach it for many minutes and after fatality from 
escaping smoke and gas has occurred. While cords of com- 
bustible material may be employed and are of immediate value 
when loosed by cutting, the ventilators independent thereof 
should be equipped with fusible links. These are reliable, 
practicable, of trifling cost, and are commonly used on auto- 
matic fire shutters and fire doors in factories, where during 
the past twenty years it has been demonstrated that they have 
worked successfully and well. 

It is not the purpose of this work to enter into a description 



WATER CURTAINS AND SPRINKLERS 153 

of the mechanical means by which the opening of the ventila- 
tors can be accomplished. It is enough to state that a prompt 
use of a sufficient ventilating space over the stage will 
undoubtedly afford a sure means of protection. 

The cry for more and larger exits at first consideration 
appeals as a sure method of safety, but such is not the case, 
and while there should be a reasonable number conveniently 
disposed, too many, especially from the galleries, are far more 
dangerous than few, as creating a draft from the stage, with 
resulting disaster. 

Ventilators in the ceilings of the auditorium should be capa- 
ble of immediate closing, for these, like open exits, create a 
counter draft which is distinctly dangerous. 

While modem hygienics demand good ventilation in public 
places, all devices and systems should be constructed with 
the all-important purpose of keeping out any possible draft 
from stage to audience at time of fire. All draft should 
be from the stage up to its roof, which, being higher than the 
auditorium, draws the air away from the auditorium, thereby 
protecting the audience. Anything which tends to change 
the direction of the current of air from stage to audience is the 
most culpable negligence and fatal in its consequences. The 
opening of exits from the stage to the street is distinctly dan- 
gerous as creating a draft from the stage to the gallery and 
balconies, unless the ventilators are open over the stage. 

§ 133. Water Curtains and Sprinklers. 

Water curtains and automatic sprinklers are so generally 
in use and so well understood that no space is necessary to 
show that such equipment is clearly within what can be rea- 
sonably expected from the manager in this respect. These 



154 TRAINED STAGE HANDS 

appliances are like all else, of value only if they work, and the 
greatest care should be used to ascertain if the main water 
supply is in readiness for immediate use, if the pipe connections 
are free and in working order, and that no rust has accumu- 
lated in valves and joints; for it is no justification to merely 
install what is efficient: the actual operation of the plant is 
the all-essential need. 

The value of these appliances is in their immediate avail- 
ability to extinguish or at least control the fire long enough 
to make certain the emptying of the theater; beyond that, in 
his relation to the public, the manager need have no concern. 

The water supply should always be under the control and 
subject to the frequent tests of the manager, who has a right 
to know if he can depend upon the supply and its ordinary 
pressure. 

In some cities the main supply or tum-on is under the 
control of the water or fire department, and must not be 
touched or used by the manager, save in case of emergency. 
This is a regulation as absurd as it is dangerous; for what 
dependence can be placed on that which is of principal impor- 
tance in checking a fire, unless it is frequently and systematic- 
ally tested. This is another of the ridiculous methods of 
public supervision of fire protection, adding an element of 
uncertainty to the working of an almost infallible system, 
for a plentiful and continuous supply of water, literally 
drenching the stage, if operated quicky, would be the prompt 
undoing of any ordinary blaze and avoid all evil consequences 
of smoke and gas. 

§ 134. Trained Stage H^mds. 

The fire curtain, ventilators and sprinklers are of no avail 
unless promptly put to use. The fatality from gas and smoke 



INSPECTION 


155 


is quick, and no instant should be lost in lowering the curtain, 
opening the ventilators, and operating the sprinklers. This 
can never be accomplished by the haphazard efforts of em- 
ployees; they should be carefully and frequently drilled in 
the practical work of exactly what to do in case of fire ; every 
man should have some one duty assigned him which he can 
instantly perform in time of need, when every second counts, 
and there should be no confusion or delay in operating the 
safety appliances. This drill is necessarily simple, the mere 
doing of certain well-understood things immediately with a 
knowledge of just how to do them. 

The prompt use of the means of fire protection suggested 
insures the safety of an audience for the time necessary to 
allow its escape. A theater can be emptied quickly, but a few 
minutes is required under crowded conditions in the largest 
houses, and it is only to hold a fire in check for such time that 
is important. 

It is believed that loss of life will be impossible from flame 
or vapor if these suggested methods are immediately carried 
into effect ; they would so far retard the fire as to allow ample 
time for an audience to make its way out in safety, and pre- 
vent the accumulation of smoke and gas in the auditorium. 


§ 135. Inspectioiu 

A rigid inspection at regular periods by qualified experts 
acting for the city or town is advantageous, and the manager 
should properly inspect his premises during a performance. 
Inspection is excellent in that it reduces the possible chances 
of carelessness and tends to efficiency and perfection. It gives 
the public faith in the safety of the theater and helps to avert 
panic, and is a material aid to the manager in assisting him to 



INSPECTION 


156 

a knowledge of what defects exist and how to remedy them. 
This inspection should not only be of the stage, but over and 
under it. 

Rigid inspection is probably the best and most comprehen- 
sive fire preventive, reducing the possibility of a fire to a 
minimum, for where it exists those things which lead to a 
cause for trouble are corrected and abolished. Laxity is a 
breeder of danger, and fire calamities are only to be averted 
by constant care and vigilance. While most fires start on the 
stage, it is well to remember the possibility of a fire beginning 
in the front of the theater. This might be occasioned by 
defective heating apparatus, a crossed electric wire or careless 
disposal of a match or lighted cigar or cigarette. The same 
consideration of how to get the audience away in safety would 
arise, but the progress of a fire here would be much slower 
and more easily controlled, as the flames would have little of 
a combustible or inflammable nature to feed on. It is neverthe- 
less a subject for attention and should not be lost sight of in 
protective measures. 

For an interesting and instructive treatment of theater 
protection from fire and panic, see “Theater Fires and 
Panics” (1896) and “ Theaters: Their Safety from Fire and 
Panic ” ( 1900) by William Paul Gerhard, C. E. 

In the Foreword to the printed address of John R. Free- 
man, Esq., president of the American Society of Mechanical 
Engineers, on the “ Safeguarding of Life in Theaters,” deliv- 
ered at the opening of the annual meeting of the society in New 
York City, December 14, 1905, the matter of fire protection is 
most clearly and wisely summed up as follows : 

I. It is not a difficult or an expensive matter to provide 
safeguards such that a theater or other hall of public assembly 
may be made reasonably safe. 



THE THREE SAFEGUARDS 157 

2. In the great theater fires of history the loss of life has 
commonly resulted from the rapid spread of flame on a stage 
covered with scenery, followed within two or three minutes 
by an outpouring of suffocating smoke through the prosce- 
nium arch into the top of the auditorium, before those in the 
galleries could escape. Death has come chiefly to those in 
the balconies, and often within less than five minutes of the 
first flame. 

The three great safeguards are found to be : 

1. The providing of ample, automatic, quick-opening smoke 
vents over the stage. 

2. The thorough equipment of the stage with automatic 
sprinklers by means of which the action of the heat will 
promptly release, over the burning scenery, a rainfall ten- 
fold heavier than the heaviest thunder-shower, drenching the 
scenery and extinguishing the flames. 

3. The providing of especially ample exits and stairways 
from the gallery. 

4. The foregoing transcend all other requirements. 

The fire proofing or flame proofing of scenery 
is found to be of doubtful value under practical 
conditions of use. 

The so-called fireproof paints are of very small 
fire-retarding value. 

The asbestos curtain is found to possess much less 
endurance against heat and flame than had been 
supposed. 

The steel curtain covered with non-conductor on 
the stage side is far better than the asbestos curtain, 
but may give trouble in lowering or may permit 
large quantities of suffocating gas to be forced into 
the auditorium around its edges. 



IS8 THE IROQUOIS DISASTER 

5. Diy-powder fire-extinguishers and hand grenades are 
likely to prove worse than useless, by promoting waste of 
valuable time. 

The e3q)lanation given as to the cause of the Iroquois 
Theater disaster by Mr. Freeman, in his address referred to, 
is as follows: 

On a Wednesday matinee the theater was crowded largely 
with women and children ; a spectacular play was being given 
and the amount of scenery used therein was unusually large. 
“ The fire was caused by a spark from a portable electric arc 
light known as * spot light,’ used to throw a strong light on 
a special group, which set fire to one of the draperies. The 
fire spread in the hanging sheets of scenery with great rapid- 
ity, and it is probable that in from one to two minutes the 
great mass of scenery on the stage was in flames; mean- 
while an unsuccessful attempt was made to lower the asbestos 
curtain. The leading comedian came forward and urged the 
audience to keep their seats. A door, opened by the escaping 
actors, let a great rush of air inward, and this, together with 
the expansion of the air in the top of the stage space by the 
heat, drove the flames out under the proscenium arch into the 
upper part of the auditorium.” 

Mr. Freeman further states that on instant discovery of 
the fire there was cool and prompt action by the theater’s 
staff, and that the fire department was on the ground within 
little more than five minutes from the first nlarm; that the 
scene of this disaster was the newest of Chicago’s theaters, a 
building of fireproof construction that justified the name, so 
far as the building itself was concerned, and one that struc- 
turally had no superior in this country or in the world. Little 
except sceneiy, decorations and upholstery was damaged by 
the fire; that there had been shameful neglect in important 



159 


THE IROQUOIS DISASTER 

details o£ fitting up; that fire hose on the stage had been 
delayed ; that fire pails and soda water fire extinguishers were 
absent; that the ventilating sky-lights over the stage were 
blocked so they could not slide over, and that the exits were 
poorly marked. 

Out of an audience of about 1830 persons, 581 were killed 
and some 250 more injured. Of these about 400 occupied the 
gallery and about 125 the balcony. Of those who occupied the 
floor not more than seven were killed, and most of these deaths 
were caused by persons jumping from the gallery. Suffoca- 
tion was the main cause of death, and most of the deaths 
occurred within five minutes of the first flame. 

The great lesson of the Iroquois centers around the sud- 
den outbreak, the rapid progress of the fire over the stage 
and the fact that most of the deaths occurred within five 
minutes of the first flame, that death came to nearly all of 
those who had seats in the gallery, while nearly all of those 
on the floor escaped. The great lesson of the Iroquois fire 
was only a repetition of a lesson that has been given several 
times before and each time forgotten. The recurring for- 
mula is: 

1. A stage crowded with scenery. 

2. The sudden spread of the flames over this scenery. 

3. The opening of a door in the rear of the stage, an 
inrush of air. 

4. Scant smoke vents over the stage, an outburst of smoke 
under the proscenium arch, 

5. Death to those in the galleries. 

Mr. Freeman’s published address contains mudi valuable 
matter of a practical nature and can be read with profit by 
all those who manage or undertake to r^;ulate places of 
amusement. 



i6o 


PANIC 


§ 136. Panic. 

Panic is a matter beyond human control. It occurs without 
reason and with disastrous results. It may arise in the most 
modem and safe theater, in an open park or in a circus tent. 
It may start where no danger exists and where no harm 
could come. It may arise from the appearance of something 
unexpected, from a sudden extinguishing of lights, a cry, a 
flash of flame, the smell of smoke, or the crash of some falling 
body. The most insignificant of things may be its cause. At 
such a crisis all human probabilities are overthrown; people 
act without reason in a mad hysteria of terror. The principal 
effort is to escape, which must be accomplished no matter 
how, but at once and quickly. With many exits, all fight to 
go through one. Reason is suspended in the mad instinct to 
escape at any cost. Physical force is dominant; the strong 
trample the weak in the fierce rush for self-preservation. 

Exits, aisles, fire-escapes, are alike disregarded, and pro- 
vided means, ample and sure for escape, are unnoticed and 
unused. When it is remembered that one of the most disas- 
trous panics of modem times occurred in an open park 
provided with numerous exits, because all tried to leave by 
one, it is hopeless to suggest any ranedy to stay the frenzy 
and control of an alarmed audience. 

The only safety is prevention of fright, and while panic 
may not be controlled, much can be done to avert its rising. 

It is advisable to have an audience realize it is in a theater 
which has adopted all reasonable means to control a fire, and 
that the employees are drilled as to what to do at such a time. 
Let the audience know it is safe, no matter what may occur. 
Confidence is the greatest preventive of panic. An audience 
which believes in its own safety will not be alarmed unneces- 
sarily. The manager does well to familiarize his patrons with 



AISLE SPACE 


i6i 

the number and location of exits which should be plainly 
designated and always open for use, and if the house is dark 
and any disquieting noise or smell arise it should immediately 
be made light. The knowledge of a fire curtain which is 
raised and lowered during everj’ performance, the use of all 
exits and knowledge of convenient fire-escapes, establish confi- 
dence and act as a powerful opposition to unreasoning fear. 
A safe, and known to be safe, theater is an e.xcellent advertise- 
ment for the manager, and he can well afford to spare no pains 
in bringing the facts of safety before the public. Unused 
exits, which patrons never see and know nothing about, are 
of little practical help in time of emergency. Instinct rather 
than reason sways in time of peril, and it is more natural to 
seek the exits one has used and is familiar with than to 
search for others which are untried, or only opened in emer- 
gency. 

The frantic crowding to escape is the danger to be most 
dreaded. For this reason it is doubtful if too wide aisles and 
too wide space between the rows of seats is a wise method of 
construction. The crowd is safer when reasonably retarded. 
If large numbers can at the same time arrive at one point there 
occurs a fatal crush which it is impossible to avert. 

§ 137. Benefit of Narrow Aisles. 

Reasonably narrow aisles help to retard and hold people in 
check for a short interval of time, thereby giving more opportu- 
nity for those nearest the doors to get out of the way; this is 
equally true of the seat spaces leading into the aisles. Con- 
gestion at any one place is fatal, and is much more to be 
feared than the fire. Too broad aisles are directly responsi- 
ble for disaster, offering too quick an approach to the exits 



i 62 


REASON V. THEORY 


and providing space in which people can be pushed down and 
trampled upon. Too much room leading to or about an exit 
is far more likely to result in injury than in too little. That 
such is true is the opinion of practical theater men who have 
witnessed panics, and their opinion is more to be relied on than 
the professional theory of how a theater should be constructed 
or how an audience would act, by those without practical 
experience. Too much has been written and suggested of the 
theoretical in modem theater construction without heed to 
those things which at such a time are sure to arise and must 
be met. Theory never controlled a panic or averted a disaster. 

Man at such times asserts his savage nature and conforms 
not at all to the acts of self-reliance and chivalry which theory 
plans for him. This subject is one for practical treatment and 
not of experimental belief. Too much of the absurd has 
already crept into the legislation of some States on this sub- 
ject, which so far divides the responsibility of fire protection 
as to make no one accountable, and provides methods and 
demands changes which supply danger and not safety to the 
public. It is a matter for practical attention depending on 
many elements which only a thorough knowledge of a theater 
and its practical workings can supply. The adoption of any 
law to protect a place of amusement in case of fire can only 
be of use when plain, founded on practical reason and capable 
of quick and efficient application; all else is futile. There 
should be no divided responsibility; the city which separates 
the duty of inspection and regulation among many depart- 
ments, with no official in full and absolute control, acts tm- 
wisely and accomplishes no beneficial results. 



MANAGER’S RIGHT TO FIX PRICE OF ADMISSION 
TICKET OF ADMISSION A REVOCABLE LICENSE 
RIGHTS OF REVOCATION, HOW EXERCISED 
TICKETS, RESERVED SEATS, RETURN CHECKS 

DISCRIMINATION, WHEN PROHIBITED ‘BY 
STATUTE 




TICKET A LICENSE 


J65 


CHAPTER VIII 

§ 138. Sight of Kasiager to Fix Price of Adnissios. Tickets and 
Bights of Ticket-Holders. 

According to legal classification, amusements and theatrical 
entertainments are luxuries, not necessities, and therefore 
managers are free to regulate the price of admission to their 
own liking, and the public has no lawful right to complain of 
what it may consider an unfair or even extortionate charge, 
for such is not a subject for regulation by law. 

“ Theaters are not absolute necessaries of life, and any per- 
son may stay away who does not approve of the manner in 
which they are managed. If the prices of admission are 
unreasonable the evil will cure itself. People will not go, 
and the proprietors will be ruined unless they lower their 
admissions, but the proprietors of a *theater have a right 
to manage their property in their own way and to fix what 
prices of admission they think most for their advantage.” 

Lord Mansfield in Gifford v. Brandon, 2 Camp., 35& 

§ 139. The Theater is Private Proper^. 

While a theater caters to the public and from it gets its 
financial support and is subject to legislative control and 
police regulation, yet it is a private business and not a public 
institution. 

The theater itself is private property, and although fre- 



i66 


TICKET A LICENSE 


quented by the public and legislated over and policed for the 
protection of the public, it still remains a private business 
enterprise established in some individual’s theater, over which 
he has absolute control ; he can open or close it as he sees fit, 
can admit certain of the public and not others, can charge a 
reasonable rate of admission or an extravagant one ; in short, 
do any act consistent with ownership provided he obeys the 
laws regulating its uses in the sense of protection and good 
morals. 

^ 140. A Ticket is a Sevocable license. 

The early cases held that the purchase of a ticket to a 
theater or place of amusement gave an irrevocable right to 
enter and remain during the performance, and that its holder’s 
rights could not be revoked. 

Tayler v. Waters, 7 Taunt, 374. 

These decisions were finally overruled in the now leading 
case of Wood v. Leadbitter, 13 M. & W. 838. There the 
owner of the land on which was erected a stand for the 
accommodation of spectators at a horse race sold a ticket to 
the plaintiff to enter the same and view the races. Before 
the races were over, without any misbehavior on plaintiff’s 
part and without tendering him back the amount paid for 
admission, the owner ordered him to leave the premises, and 
on his refusal so to do removed him. It was held that his 
ticket was a mere license and was revocable. The only cause 
of his removal was that on being seen by the Earl of Elgin- 
town, the steward, he ordered Leadbitter to ask Wood to 
leave on account of some alleged shady transaction. The 
court was of opinion that such right of license was vir- 



RIGHT TO REVOKE ADMISSION 167 


tually an easement which could not be granted without a 
deed, and the license not being sustained by an interest in the 
land could consequently be revoked at any time. Hence a 
theater is classed as real estate, and the right to enter whether 
by ticket or otherwise is a license, and as any other license, 
to do an act or series of acts on the land of another, is 
re\'ocabIe at the pleasure of the one in control of the property. 

This is an inherent right of land ownership and controls 
all questions of admission, tickets and cancellation or revoca- 
tion of the granted right of entrj*. 

§ 141. The Sight of the ICanager to Sevoke Admission. 

As a theater is a private estate, the owner is under no burden 
of explaining or justifying his acts in the management of his 
business; he can admit, exclude or expel in the same degree 
that a householder may. This right determines the status of 
a ticket and its holder. One who purchases a ticket at the 
box office of a theater merely acquires a license to attend a 
specified performance. He enters into contract with the man- 
agement for this license, and the ticket he accepts is evidence 
of the contract, but not the contract itself. It usually contains 
some of the terms of the agreement, such as the date and 
hour when the license is to be exercised, the price, the place 
in the theater to be occupied, and can properly set forth any 
conditions as to performance, cost or transfer of ticket. ‘ The 
holding of the ticket does not in any way affect the funda- 
mental right of the management to revoke the license at any 
time, for it is revocable even if the person granting it has 
expressly contracted not to revoke, and the holder on revoca- 
tion can be ejected. If the licensor does revoke, an action at 
lawr will lie for breach of contract, and damages may be recov- 



i68 


TICKET DEFINED 


ered for the loss sustained, but no action in tort will lie for 
the revocation, as to exercise such revocation is merely a 
legal right properly availed of. 

§ 142. Deftnition of Ticket. 

A ticket has been defined as a “ formal document valid and 
interpretable by some well-known business custom requiring 
the party issuing it to do something or to give something not 
money to the bearer at or within a certain time. It secures 
a future right to the bearer; thus differing from a receipt or 
voucher which merely proves a right already secured.” 

I Harvard Law Rev., 17. 

Pingre)r*s Extraordinary Contracts, § 502. 

“The contract is implied from the circumstances and is 
an agreement on the part of the proprietor for the considera- 
tion mentioned to admit the holder of the ticket, upon pre- 
sentation thereof, to his theater at the date named, with the 
right to occupy the seat specified and there to witness the 
performance. A theater ticket is a license, issued by the 
proprietor pursuant to the contract, as convenient evidence 
of the right of the holder to admission to the theater at the 
date named with the privilege specified, subject, however, to 
his observance of any reasonable condition appearing upon 
the face thereof. The license, though granted for a con- 
sideration, is revocable for a violation of such condition by 
the holder of the ticket in the manner specified therein.” 

Collister v. Hayman, 183 N. Y., 253. 

Pingreys Extraordinary Contracts, § 509. 



THE TICKET CONTRACT 169 

§ 143. Wliat tlie Ticket Contract Call* Por. 

As a ticket to a place of amusement is a contract, it entitles 
the holder to see or hear the play, person or thing the ticket 
was purchased for. For which reason it becomes material 
to determine what was really the subject matter of the con- 
tract. This is not confusing when a star of recognized mag- 
nitude is ill or fails to appear or an advertised play or opera 
is not given and another substituted. But where a cast, as 
in opera, is made up of several stars and one fails to appear, 
or in a play some one actor is dropped from the performance, 
then the question becomes more involved. As the sale of a 
ticket is a contract which entitles the holder to enjoy some 
specified thing, it necessarily follows that any change of an 
advertised play or opera to another is a violation of the con- 
tract, and the same is true when the star and not the play, 
opera or performance is the feature; in such cases if the 
advertised play or opera is not given or the performer does 
not appear, the contract is rescinded and the ticket-holder 
can recover back his money paid and such additional expense 
as he may have gone to in fulfilling his part of the contract ; 
but such damage, apart from the price paid for the ticket, 
must be directly connected with or flow from the breach of 
the contract, the rule of damages as hereinafter explained 
being narrowly limited and the subject of strict proof. The 
patron must, however, withdraw and demand back his money 
on ascertaining the change in the subject matter of the con- 
tract. To stay on and witness the substituted matter bars all 
right of subsequently demanding back the whole or any part 
of the original price of admission. By remaining, the ticket- 
holder voluntarily elects to accept the substituted matter for 
what was originally contracted for, and it is presumed he gets 
a fair return for the consideration paid. 



170 RIGHTS OF REVOCATION 

His act estops him from any subsequent complaint on ac- 
count of the change, as his presence countenances the sub- 
stitution. The management should so publicly announce the 
necessitated change as to allow the ticket-holders to know 
of it before entering the theater or at least before the per- 
formance commences. This will allow the patrons their 
choice of staying or at once leaving; if they decide to leave, 
their tickets should be redeemed for the amount paid. The 
question governing the ticket-holder’s rights is merely whether 
or not the offered attraction reasonably provides that which 
can be fairly considered the actual and real subject matter 
of the contract. If it does, although it may vary in certain 
particulars and lack some unimportant elements as originally 
advertised, the contract is substantially performed, and the 
ticket-holder cannot complain that the return for his money 
is inadequate. 

§ 144. E^rhts of Revocation. 

The sale of a ticket to a theater or other place of amuse- 
ment is a license to the purchaser to enter and remain during 
the performance. As a theater is a private business enter- 
prise, this license may be revoked by the one who sold it 
at any time, even before the object and purpose for which 
it was granted have been availed of or wholly accomplished. 
Nor does it make any difference as to this right of revocation 
that the contract under which the license was derived was 

a 

either wholly or in part executed and that the licensee was 
in the actual enjoyment of the privilege given him when 
his licensor revoked it The fact that admission is allowed, 
and that the spectator is in the enjoyment of the play or concert 
does not in any way interfere with the manager’s right of 



WOOD V. LEADBITTER 171 

revocation, which is legally justified because the proprietor 
has the power at any time to revoke the license, which is 
not in its nature irrevocable in any sense. The licensee 
has no alternative save to submit, no matter how unjust or 
unreasonable the revocation is. If the ticket-holder is refused 
admission to or requested to leave the premises, he must 
do so, and the manager is not obliged to explain or furnish 
any reason for his action; he is well within his leg^l rights 
when he refuses or revokes the admission. Of this he is 
sole judge. If the licensee remains after notice to leave, 
he becomes a trespasser and can be ejected by the use of 
as much force as may be reasonably necessary to accomplish 
the purpose. 

The admission at best is a mere naked license, revocable 
at all times, and when actually revoked, if the licensee does 
not immediately depart upon request to do so, he can be 
forcibly ejected. For such removal no action of trespass 
will lie, it being legally justified. 

Burton v. Scherpf, i Allen, 133. 

Giles V. Simonds, IS Gray, 441. 

McCrea v. Marsh, 12 Gray, 21 1. 

Wood V. Leadbitter, 13 M. & W., 838. 

Pearce v. Spalding, 12 Mo. App., 141. 

Johnson v. Wilkinson, 139 Mass., 3. 

Greenberg v. Western Turf Assoc., 140 Cal., 3S7* 

After several conflicting decisions on this question the 
doctrine was finally laid down in Wood v. Leadbitter, 13 
M. & W. 838, which establishes the rule as now followed in 
the United States. 

For a review of the cases and comment on Drew v. Peer, 
93 Pa. St. 234, see an article on the “ Law of the Theater,” 
12 Central Law Journal, 390. 



172 THE ACTION OF TRESPASS 

§ 145 . Tioket-Eolder Becomes Trespasser on Befnsal to Leave. 

“ The sale of the ticket to the plaintiff was a license to 
him to enter the hall of the building in possession of the 
defendant as its temporary lessee, and to remain in it during 
the concert to be given there. But the license was revoked 
immediately upon the entrance of the plaintiff into the hall 
before he had taken his seat By remaining there after- 
wards and refusing to depart upon request, he became a 
trespasser; and the defendant had a right to remove him 
by the use of such degree of force as his resistance should 
render necessary for that purpose.” 

Burton v. Scherpf, i Allen, 133. 

Johnson v. Wilkinson, 139 Mass., 3. 

The rule is the same if the ticket-holder has entered the 
theater' and is actually in the enjoyment of the license: the 
proprietor has the right to order him to leave at any time 
during the performance, and upon his refusal may do so, 
using no unnecessary force. 

Wood v. Leadbitter, 13 M. & W., 838. 

Pearce v. Spalding, 12 Mo. App., 141. 

McCrea v. Marsh, 12 Gray, 211. 

§ 146 . No Action in Trespass Maintainable. 

If the manager prevents the holder of a ticket from 
entering, no action of tort can be maintained for the 
exclusion. 


McCrea v. Marsh, 12 Gray, 21 1. 

In Homey v. Nixon, 213 Pa. St. 20, the plaintiff brought 
trespass for the price of certain theater tickets and for the 



ACTION OF CONTRACT 


173 


inconvenience and mortification sufifered by reason of his 
exclusion from the seats called for thereby. He had pur- 
chased eight seats at the defendant’s theater, but before 
the performance the city authorities ordered certain end 
seats removed, and in the confusion resulting from such 
removal the plaintiff’s seats were resold to other persons. 
On his arrival at the theater with his party he was told 
that the seats were occupied. The management offered him 
other seats, which he refused to accept, and on his becoming 
so noisy as to disturb the audience he was invited to go 
into the corridor, where the money paid for the tickets was 
tendered to him, but he refused to accept it. The court, 
citing Vol. 21 Encyc. of PI. & Pr. 647, said, “A theater 
ticket being a mere license to the purchaser which may be 
revoked at the pleasure of the theatrical manager, upon such 
revocation, if the person attempts to enter, or if, having 
previously entered, he refuses to leave upon request, he 
becomes a trespasser and may be prevented from entering 
or may be removed by force, and can maintain no action of 
tort therefor. His only remedy is by an action on the 
contract to recover the money paid for the ticket and dam- 
ages sustained by the breach of the contract implied by 
the sale and delivery of such ticket.” 

§ 147. When Action of Contract Can be Maintained. 

While the right of revocation exists and for an ejectment 
no action of treq)ass in tort will lie, yet the ticket-holder has 
a right of action which, while not interfering with the man- 
ager’s right to revoke, grows out of the -invasion of his 
contractual rights, which are evidenced by the ticket, Having 
made a contract for an agreed price to enjoy a certain thing. 



174 


RIGHT OF REVOCATION 


he cannot be deprived thereof without having a right to 
recover back in an action of contract what he paid for his 
ticket and such other damage as is directly occasioned or 
consequential from the invasion of the agreement. 

In Drew v. Peer, 93 Penn. St. 234, the facts showed that 
the plaintiff and his wife purchased two reserved seat tickets 
of admission to the defendant’s theater, and on entering the 
lobby were refused further admission, and finally were 
forcibly ejected. The court held that an action in the form 
of trespass on the case would lie and the plaintiff could 
recover as damages not only the price of the tickets, but 
the loss occasioned him by his wife’s illness, which was 
attributable to the effect of the ejection; and in the case 
of Smith V. Leo, 92 Hun 242, the rule of damages was 
extended to such injuries to the good name, fame and credit 
of the plaintiff as were occasioned by the expulsion. 

Here we have the peculiar doctrine of a license which 
can be legally revoked, and when revoked no action will lie 
in tort for the expulsion of the ticket-holder, after notice 
to leave, the same being justifiable; yet an action lies for 
the breach of contract involved in the same act, and damages 
can be recovered for the price of the ticket and such other 
computable injury as is the direct or consequential outcome 
of the revocation. 

The application of this rule led to some confusion in the 
earlier cases, but the principle seems now to be firmly estab- 
lished as stated, and although the court said in Drew v. 
Peer, 93 Pa. St. 234, “that as purchasers and holders of 
tickets for particular seats, they had more than a mere 
license,” yet the later decision in Homey v. Nixon (see 
ante), by the same court, is in line with the general and 
now undoubted doctrine that a ticket is a mere license and 



DAMAGES FOR REVOCATION 


175 


nothing* more, with full rights of revocation. And in the 
latter case the court, contrasting it with Drew v. Peer, says: 
There is no analogy between the two cases.’’ 

Jamieson v. Milleman, 3 Duer, 255. 

Prince v. Case, 10 Conn., 375. 

Jackson v. Babcock, 4 Johns, 418. 

McCrea v. Marsh, 12 Gray, 21 1. 


§ 148. Damages Eecoverable for Bevocation. 

In case of the revocation of the license conferred by a ticket 
of admission to a place of amusement, whether such revoca- 
tion was before or after the holder has entered, the remedy 
is an action of contract and not tort. 

The plaintiff is entitled to recover in an action of contract 
the money he paid for the ticket and all legal damages 
which he sustained by breach of the contract implied by the 
sale and delivery of the ticket. 

McCrea v. Marsh, 12 Gray, 211. 

Homey v. Nixon, 213 Pa. St, 20. 

The question of damages, whenever the same have been 
allowed in an action of tort for trespass, seems to depend 
upon the manner in which the right of ejection is exercised, 
for conceding the right of revocation, it cannot be exercised 
and th^ ticket-holder ejected in such a way as to injure him 
bodily or hurt his good name, fame and credit, causing scandal 
and disgrace. Only such force as is absolutely necessary may 
be employed, and the manner of the act must be seemly or 
else the manager transcends his rights and becomes a tres- 
passer himself, and liable for such wrongful act. Nor can the 



176 


MISTAKE IN TICKET 


manager in exercising his right of ejectment cause a breach 
of the peace without being guilty of a criminal misdemeanor. 

Drew V. Peer, 93 Pa. St., 234. 

Smith V. Leo, 92 Hun, 242. 

In case of the revocation of a license to enter a place of 
amusement, if the same is unwarranted or a case of illegal 
discrimination, the jury can only award compensatory dam- 
ages, the plaintiff being limited in his recovery to the damages 
actually sustained by him. 

Smith V. Leo, 92 Hun, 242. 

§ 149. Mistake in Sale of Ticket. 

In a case where tickets were sold by mistake and as a result 
a patron was obliged to vacate his seat and leave the theater, 
the court held, although the mistake was attributable to the 
management, it was only slight negligence and it would be 
unjust to punish by vindictive damages. 

MacGowan v. Duff, 14 Daly, 315. 

§ 150. S4>bt of Ejectment Discussed. 

The right of ejectment, unless preceded by some disorderly 
or indecent conduct, is at best a narrow and perilous privilege 
when undertaken merely as a right and without clear and 
justifiable circumstances, tending as it does to the use of too 
much force on the one hand and the likelihood of a breach of 
the peace on the other. 

The right to remove a drunken, disorderly or indecent per- 



PURCELL V. DALY 177 

son is more clear of application and not fraught with the same 
difficulties. The common good and comfort of patrons de- 
mands the latter, while only the whim or fancy of the manage- 
ment may control in the former instance. The right to eject 
continues, but its enforcement leads to practical difficulties, 
which should be well considered in any instance. 

When a manager revokes the rights conferred by a ticket 
and no undue force in ejecting is employed, the only remedy 
for such act is an action for the price of the ticket and for 
such actual legal damages as may have been sustained as a 
direct result of the revocation. 


Wood V. Leadbitter, 13 M. & W., 838 (-which overrules 
the earlier decision in Tayler v. Walters, 7 Taunt, 374 -) 
Burton v. Scherpf, i Allen (Mass.), 133. 

McCrea v. Marsh, I2 Gray, 211. 


§ 151. The Buie of Purcell v. Daly. 

The reason and right of this rule is stated in the decision of 
the court in Purcell v. Daly, 19 Abb. N. Cas. (N. Y.) 301. 
“ The theater is owned by the defendant, is private property, 
and is governed so far as the public is concerned by such rules 
and regulations as the defendant may see fit to make. It is 
in no sense a public enterprise, and is consequently not gov- 
erned by the same rules which relate to common carriers or 
other public institutions of a like character. 

“ The proprietor of a theater is under no obligation to the 
public to give any performance therein. He has no duties to 
perform with which the public are in any legal sense con- 
cerned, or with which the public have any right to interfere. 



176 MISTAKE IN TICKET 

manager in exercising his right of ejectment cause a breach 
of the peace without being guilty of a criminal misdemeanor. 

Drew V. Peer, 93 Pa. St, 234. 

Smith V. Leo, 92 Hun, 242. 

In case of the revocation of a license to enter a place of 
amusement, if the same is unwarranted or a case of illegal 
discrimination, the jury can only award compensatory dam- 
ages, the plaintiff being limited in his recovery to the damages 
actually sustained by him. 


Smith V. Leo, 92 Hun, 242. 

§ 149. Uistake in Sale of Ticket. 

In a case where tickets were sold by mistake and as a result 
a patron was obliged to vacate his seat and leave the theater, 
the court held, although the mistake was attributable to the 
management, it was only slight negligence and it would be 
unjust to punish by vindictive damages. 

MacGowan v. Duff, 14 Daly, 313. 

§ 150. Bight of Ejectment Discussed. 

The right of ejectment, unless preceded by some disorderly 
or indecent conduct, is at best a narrow and perilous privilege 
when undertaken merely as a right and without clear and 
justifiable circumstances, tending as it does to the use of too 
much force on the one hand and the likelihood of a breach of 
the peace on the other. 

The right to remove a drunken, disorderly or indecent per- 



PURCELL V. DALY 177 

son is more clear of application and not fraught with the same 
difficulties. The common good and comfort of patrons de- 
mands the latter, while only the whim or fancy of the manage- 
ment may control in the former instance. The right to eject 
continues, but its enforcement leads to practical difficulties, 
which should be well considered in any instance. 

When a manager revokes the rights conferred by a ticket 
and no undue force in ejecting is employed, the only remedy 
for such act is an action for the price of the ticket and for 
such actual legal damages as may have been sustained as a 
direct result of the revocation. 


Wood V. Leadbitter, 13 M. & W., 838 (which overrules 
the earlier decision in Tayler v. Walters, 7 Taunt, 374; 

Burton v. Scherpf, 1 Allen (Mass.), 133. 

McCrea v. Marsh, I2 Gray, 211. 

§ 161. The Buie of Poroell v. Daly. 

The reason and right of this rule is stated in the decision of 
the court in Purcell v. Daly, 19 Abb. N. Cas. (N. Y.) 301. 
“ The theater is owned by the defendant, is private property, 
and is governed so far as the public is concerned by such rules 
and regulations as the defendant may see fit to make. It is 
in no sense a public enterprise, and is consequently not gov- 
erned by the same rules which relate to common carriers or 
other public institutions of a like character. 

“ The proprietor of a theater is under no obligation to the 
public to give any performance therein. He has no duties to 
perform with which the public are in any legal sense con- 
cerned, or with which the public have any right to interfere. 



178 


PURCELL V. DALY 


It is true that he pays a license for the privilege of giving 
theatrical exhibitions, but this in no way changes the character 
of the institution from a private to a public one. He may 
shut up his theater, or he may use the theater property for 
other purposes than theatrical entertainments, m which case 
he is under no obligation to pay a license. It is only when he 
uses his property for that purpose that a license fee is exacted. 
If the proprietor of a theater sees fit to discontinue perform- 
ances, the public cannot complain. This being so, the pro- 
prietor of a theater has a perfect right to say who he will 
or will not admit to his theater, and should anyone apply at 
the box office of a theater and desire to purchase tickets of 
admission, and be refused, there can be no question that he 
would have no cause of action against the proprietor of the 
theater for such refusal. And in the same way, if tickets are 
sold to a person, the proprietor may still refuse admission, 
in which case the proprietor would be compelled to refund 
only the price paid for the tickets of admission, together with 
such other expense as the party might have been put to, but 
which expense must be directly connected with the iss uing of 
the ticket of admission. For he could not accept money for 
the right of admission to his theater, and then upon refusing 
that admission seek to retain possession of the price paid for 
the privilege. A theater ticket is simply a license to the party 
presenting the same to witness a performance to be given at 
a certain time, and being a license personal in its character, 
can be revoked.” 


Mendenhall v. Klinck, 51 N. Y., 246. 
Wood V. Leadbitter, 13 M. & W., 838. 
Rex V. Jones, 1 Leach C. C, 204. 



CONDITIONS ON TICKET 


179 


§ 152. Conditiom on Ticket. 

The manager has the right to issue his tickets with condi- 
tions printed thereon. If a ticket states it will be worthless 
" if transferred " or will not be received as good for admission 
" if sold or purchased on the sidewalk/' such is legal, for a 
license is personal and not transferable, and can properly be 
limited to its original purchaser. 

The contract limits the right of admission to the actual 
purchaser, which is the gist of the conditional contract made 
between the parties. There is certainly no agreement on the 
part of the manager to refund the money in case the ticket 
so issued is not used, and- hence under any aspect of the case 
the only liability on the part of the defendant would result 
from his refusing admission to the theater to the person to 
whom the ticket is issued. 

Purcell V. Daly, 19 Abb. N. Cas. (N. Y.), 301. 

Mendenhall v. Klinck, 51 N. Y., 246. 

Collister v. Hayman, 183 N. Y., 253. 

§ 153. Betnm Checks. 

A return check, being merely an evidence or voucher of 
the original contract, cannot be transferred if the original 
ticket of admission is not transferable. The return check 
establishes no new contract or relation between the parties. 
How far this rule would apply, where the original ticket is 
transferable, is open to some question. 

The matter has been discussed in an article on “ The Law 
of the Theater ” in 12 Cent. Law J. 390, in which it is said : 
“ We should think that the purchaser of a reserved seat at a 
theater, who sells his pass on leaving the house, together with 
the ticket for his seat, could confer no right to the second pur- 



i8o 


RETURN CHECKS 


chaser which would entitle him to .admission; it being one 
of the characteristics of a license that it is limited to the 
person to whom it was originally given, and cannot be sus- 
ceptible of transfer and alienation. Licenses are confined to 
the original parties and can neither operate for nor against 
third parties.” 

This rule necessarily depends on what a return check really 
is : should it be considered as a part of the original contract or 
a mere identification of the rights of the one to whom it is given 
to reenter; is it personal in nature, showing that the original 
holder is a licensee satisfactory to the management and may re- 
turn, or is it simply a ticket of admission entitling anyone hav- 
ing the same to enter? We believe it is restrictive and should 
he limited to the uses of its original holder, for it cannot be 
construed as evidence of a new contract which allows the 
original license to transfer his rights of reentrance to any- 
one he chooses to select ; rather it is merely an additional privi- 
lege given him of leaving and returning, which the terms 
of his contract do not embody and which he cannot as a matter 
of right insist on or claim. For a ticket-holder who has once 
surrendered his ticket and entered has no right to leave and 
insist on a right to reenter. If allowed to do so, it is by 
way of courtesy and not of legal right, and one to whom he 
gives it cannot complain because he is refused admission 
thereon. 

Another doctrine has been stated thus: “A purchases 
a ticket entitling him to a reserved seat at a theatrical per- 
formance. He enters a theater, and, at the conclusion of 
the first act, leaves the house, and not being disposed to return, 
sells the check or pass received from the doorkeeper on leav- 
ing, together with the ticket for his seat, to B. Is B entitled 
to admission upon the pass? Answer: The contract between 



RETURN CHECKS i8i 

the manager of the theater and the ticket-holder is a contract 
for the use of a certain seat by some person, i. e., the holder 
of the ticket. It is not a contract that a certain seat shall be 
occupied by a certain person. It is a contract for so much 
space, which the ticket-holder may occupy by himself or by 
his friend, or which he may leave unoccupied. The right to 
use or occupy that seat or that space is, for the time being, 
his property; he has bought it, and he may either exercise 
that right himself or he may sell or assign it to another, pro- 
vided there are no personal objections to that other. If B 
is a person to whom there would have been no objections 
had he been the original holder of the ticket, he is entitled to 
admission upon the pass.” 

12 Cent Law Journal, 390. 

This doctrine seems to be founded on the erroneous assump- 
tion that a theater ticket contract is a lease, and the reasoning 
cannot apply if it is considered as a license. A license is a 
personal right and not transferable. The holder of the return 
check could not transfer it if the original ticket of admission 
was non-transferable, as it surely cannot have superior rights 
to the ticket itself. 

The first stated rule would seem to be in accord with the 
decisions. The mentioned but doubted doctrine is based on 
the assumption that the ticket contract between the holder 
and the management is an agreement for the use of a desig- 
nated seat or place by any person who happens at the time 
being to be the holder thereof, and is not dependent upon any 
question of who originally purchased the ticket and thereby 
became a party to the contract. If such proposition is true 
and there is no individuality to the contract and the ticket 



RETURN CHECKS 


182 

passing from hand to hand creates new and successive parties 
to the agreement, then undoubtedly whoever holds the ticket 
has the right to occupy such seat or space in the theater as 
designated under his contract with the manager, and the 
return check being a species of voucher for the surrendered 
ticket, the original holder’s rights may be assigned to any 
person to whom he gives the return check. It would seem, 
however, that such a rule is repugnant to the entire doctrine 
governing such tickets, for the holder of the ticket if admitted 
to the theater has so far entered upon the enjoyment of his 
contract that he may not during the performance make a 
legal assignment of a part of the enjoyment thereof; and if 
he leaves at the end of the first or other act and is given a 
return check, which at best is merely a courtesy on the part 
of the management, and delivers the return check to another, 
the management should have every right to refuse the holder 
admission thereon if on no other ground than the transfer of 
a personal license. 

The ticket confers merely a license and establishes no defi- 
nite and absolute right to any particular seat or place for any 
specified time. It is a privilege, personal in nature, which 
the management can revoke at its discretion, and as such 
license is revocable there is no reason for giving a return 
check a greater degree of importance than the original ticket. 
It would seem entirely consistent with the general rule to 
refuse admission on a return check which has been transferred 
to another, on the ground that the same being a mere personal 
license, it cannot be legally assigned, and its new holder has 
no rights thereunder. 


Jackson r. Babcock, 4 Johns, 418. 



RESERVED SEATS 


183 


§ 154. Beser7ed Seats. 

If the manager advertistes the sale of reserved seats at a 
stated price for specified performances and refuses to sell 
certain seats as demanded, he is not liable, for he can sell a 
seat or not as he pleases. 

In Pearce v. Spalding, 12 Mo. App, 141, the proprietor of 
the Olympic Theater caused an advertisement to be published 
in the St. Louis newspapers as follows ; “ Olympic Theater — 
Opera — Special Notice — ^The Season Sale of Seats for Her 
Majesty’s Opera will open at the box office of the theater on 
Monday morning, February 7th, at nine o’clock and continue 
February 8th. 

“ Repertoire, Monday, February 14th. ‘ La Somnambula,’ 
etc. Prices, Parquette and dress circle, $3,” etc. 

The plaintiff presented himself and was first at the box 
office, at the advertised time, demanded certain seats and was 
refused the same. The seats were in defendants’ possession 
and were subsequently sold to other persons. The plaintiff 
brought an action for breach of contract. The court in its 
decision said : “ Defendants advertised to sell reserved seats ; 
but they did not advertise that the first applicant should have 
his choice of any seats in the parquette at $3 for each enter- 
tainment, nor that he should have numbers 675, 677, 679 and 
681 ; nor that he should have a license to use any seat during 
the performance for seven consecutive entertainments. By no 
fair construction can any such meaning be got out of the 
language of the advertisements. Suppose a man, wishing to 
ruin the house, or to forestall the entertainment or from any 
motive, good or bad, had tendered the boxkeeper the price 
of every seat in the parquette, for every entertainment, must 
he have accepted it? Why so? Theaters are not necessities 
of life, and the proprietors of them may manage their business 



184 


RESERVED SEATS 


in their own way. If that way is unfair or unpopular, they 
will suffer in diminished receipts. Clifford v. Brandon, 2 
Camp. 358-368. But suppose that defendants had offered to 
plaintiff, in express terms, his choice of seats, provided he 
were first at the box office at nine o’clock on February 7th, 
and by extraordinary efforts he had. got there at that hour, 
and the defendants out of mere caprice had determined to 
close the house, or to throw it open to the public, or to hold 
a prayer meeting in it during the week advertised for the 
opera, to what damages would plaintiff have been entitled to 
for the false representation? Clearly he would have been 
entitled to no damages, except for some loss that could be 
estimated by a money standard. He might recover perhaps 
for loss of time and for car hire. He could recover nothing, 
we think, for the mental anguish occasioned by not hearing 
‘ Fra Diavolo ’ or ‘ Lucia di Lammermoor ’ any more than he 
could have recovered for any agonies that he might possibly 
have endured had he been present at the opera and had the 
music been so excruciatingly bad that any intervals of silence 
would have come like so many poultices ‘ to heal the wounds 
of sound.’ 

“ It has been held, indeed, that where one who has actually 
•purchased his ticket to the theater, no matter what his musical 
tastes may be, or what delight he may anticipate, is prevented 
from entering by the management, with no rudeness or un- 
necessary force, he cannot maintain an action of tort for the 
exclusion; and that his recovery must be upon the contract; 
and the measure of damages is the money paid for the ticket 
and all actual 1^1 damages sustained by the breach of the 
contract.” 

This rule is capable of many applications, and in a case 
where plaintiff purchased seats for a specified time for a per- 



SALE OF SEATS 


i8S 

formance at defendant’s theater, but was forced to surrender 
them to the usher, as the ticket agent had by mistake sold him 
tickets for a performance of an earlier date, and it appeared 
that no force or violence was used by the usher and the plain- 
tiff did not claim he had been insulted, it was held that the 
plaintiff had no claim for exemplary damages, as the manager 
acted wholly within his rights. 

MacGowan v. Duff, 14 Daly, 315. 

§ 1S6. Bight to Befuse Sale of Ticket. 

Having the right to revoke necessarily determines the privi- 
lege of selling or refusing to sell. The manager is under no 
legal obligation to give or sell the license of admission to any- 
one, or if sold to continue it in force; until he does sell the 
ticket no contractual relation is established; hence a refusal 
to sell can give no basis for any action. 

§ 156. Sale of Beserved Seats a Constitutional Bight. 

A manager may sell tickets entitling the holder to a reserved 
seat, and an act of the legislature prohibiting such sale is 
incompetent as being a vexatious and unlawful interference 
with the rights of private property. 

District of Columbia v. Saville, i McArthur, 581. 

But an ordinance providing that it shall be unlawful for 
any person to sell reserved seats to a theatrical or other per^ 
formance after the doors of the theater have been opened, 
is not invalid as being unreasonable. 

City of Cincinnati v. Brill, 7 Ohio N. P., 534. 

Same, 5 Ohio S. & C. P. Dec., 566. 



i86 WHEN ALL SEATS ARE SOLD 

The management of a theater may grant tickets of free 
admission at its discretion, but this practice, if carried so far as 
to become an injury to the stockholders or other interested 
parties, may be restrained by injunction. 

Baker’s Appeal, io8 Pa. St, 510. 

§ 157. Where all Seats are Sold Purchaser can Demand Back Ad- 
mission Pee. 

The manager has no right to sell admission to his theater 
if all the seats are occupied, without explaining to the pur- 
chaser such fact. The purchaser is justified in the belief that 
his ticket entitles him to a seat and must be informed that 
it does not; otherwise he is entitled to a return of his money. 
He must, however, leave the theater immediately on ascertain- 
ing such fact and has no right to occupy a higher-priced seat 
than his ticket calls for, because there is no room elsewhere. 
If he persists in such a course, he may be removed. He has 
a right, seemingly, to occupy such higher-priced seat until asked 
to vacate and commits no wrong until given notice. 

Lewis V. Arnold, 4 C. & P., 354. 

Dauney v. Chatterton, 45 L. J. C. P. Div., 293. 

McGoverney v. Staples, 7 Alb. L. J., 219. 

Comm. V. Powell, 10 Phila. (Pa.), 180. 

Fire Department v. Stetson, 14 Daly, (N. Y.), 125. 

If a person is told on entering a theater that there is room, 
when in fact there is not, his proper course is to leave the 
theater and demand the return of his money ; and such person 
is not justified in getting into a private box in the theater, and 
if he does, the proprietor may remove him, using no more 
force than is necessary. 

Lewis V. Arnold, 4 C. & P., 353. 



DISCRIMINATION 


187 


§ 158. Disciimination. 

The manager has the power of assigning seats in his theater 
as he sees fit, and can designate certain thereof for the use of 
colored persons without violating the fourteenth section of the 
Constitution of the United States. 

Civil Rights Cases, 109 U. S., 3. 

Unless a State has enacted a law undertaking to say how 
theaters and places of amusement shall be managed in this 
respect, the manager has full right to assign to any certain 
class a specified place or seat, excluding such from other por- 
tions of the auditorium. 

In Younger v. Judah, iii Mo. 303, where no State law had 
been enacted, it was held that where the proprietor did not 
exclude a colored person, but compelled him to take seats in 
the balcony, such was a reasonable regulation which could 
be enforced. 


Bowlin V. Lyon, 67 Iowa, 536. 
Burton v. Scherpf, i Allen, 133. 


§ 159. DisoriminatioB, when Prohibited by Statute. 

But where a State has enacted laws known as civil rights 
statutes, under them it has been held that the proprietor of 
a theater will be liable in damages for a refusal to admit a 
colored person, and for a refusal to admit a colored person 
to the several circles or grades of seats in a theater, for refus- 
ing a colored person admission to a skating rink, and for 
drawing any line of distinction between a white and a black 
man in a restaurant. 



i88 


DISCRIMINATION 


Joseph V. Bidwell, 28 La. Ann., 382. 

Donnell v. State, 48 Miss., 661. 

Baylies v. Curry, 128 111 ., 287. 

People V. King, no N. Y., 418. 

Ferguson v. Gies, 82 Mich., 358. 

In Greenberg v. Western Turf. Assoc., 140 Cal. 357, the 
Supreme Court of California held that a statute making it 
unlawful to refuse admission to any opera house, theater, race 
course, or other place of public amusement to any person over 
twenty-one years of age who presents a ticket of admission 
and providing a penalty therefor was a valid exercise of the 
State’s police power, and was not unconstitutional as a depriva- 
tion of civil rights conferred by the Fourteenth Amendment. 
“ It is uniformly held that the State has the power to speak 
in regulating such places of amusement, and that when it 
does so speak, it is with absolute authority, and its express 
law supersedes the mere whim or pleasure of the propri- 
etor so that he may no longer exercise his right to revoke 
this personal license.” Citing among other cases : 


People V. King, 110 N. Y., 418. 

Messenger v. State, 25 Neb., 674. 

Munn V. Illinois, 94 U. S., 113. 

§ 160. Siscriminatioa Against Sace 01 Color. 

'In certain jurisdictions theaters are so far considered as 
enterprises of a public character as to come within the limits 
of State laws prohibiting the discrimination against persons 
because of race or color, which has led to considerable appar- 
ent confusion in the decisions. The general rule, however, 
has undergone no change, but its enforcement in such prohib- 
ited cases gives a ground for criminal complaint. While at 



DISCRIMINATION 


189 


common law the right of cancellation of admission is recog- 
nized independent of any specified reason for so doing, yet 
this rule must be carefully applied when a statute against 
discrimination exists. Some States have adopted laws making 
it unlawful to discriminate against colored people or any per- 
son over twenty-one years of age. In such instances the 
manager must be careful in exercising his common-law right 
of revocation, provided any remains to him under the statute, 
for unless some apparent reason in justification is shown, a 
jury would be apt to attribute his act to the discrimination 
prohibited. That no discrimination be made on account of 
race or color cannot be extended, for even under such statute 
a person could not insist on a right to enter if in an unfit 
condition or be exempt from the manager’s right to eject if 
his conduct was improper. 

§ 161. The of Bevocation Not Abridged. 

These statutes in no wise change the common-law rule 
which is still applicable, and a manager has the full and com- 
plete right of revocation; but if it is found that he exercised 
this right solely on account of a discrimination against race 
or color, he would be liable therefor, as provided by the stat- 
ute. This statutory rule against discrimination may apply not 
only to admission, but to the choice of seats, and allows a 
right of selection of place which must be respected as fully 
as though there was no question of color. The statutes of 
the different States vary in extent and should be consulted as 
to how far the general rule of discrimination has been abro- 
gated. With this exception, if such it can be called, the man- 
ager has full control over the persons who may be admitted 
to his theater, and even here he still has the right to refuse 



190 DISCRIMINATION 

admission, although for so doing he may be held under the 
statute either criminally or for a stipulated sum in a civil 
action. 

Statutes prohibiting the exclusion of colored persons from 
places of public amusement have been held constitutional and 
within the rule of allowable legislation. 


People V. King, no N. Y., 418. 

Baylies v. Curry, 128 111 ., 287. 

Drew V. Peer, 93 Pa. St, 234. 

§ 162. Statutes Against Discrimination and the Common Law. 

This doctrine seems to be established in direct opposition 
to the theory on which the right or license of admission to a 
theater rests, for if a license is legally revocable and the man- 
ager has full and unrestricted powers to admit or refuse ad- 
mission to his place of entertainment, which is his private 
property in the same degree as a man’s dwelling house, then 
such statutes are in abrogation of private property rights and 
not within the powers of police control over public business, 
or matters which are recognized as proper for restrictive 
legislation under the Constitution. If one, for no reason, can 
legally exclude a person from his premises because of his 
inherent right so to do, or, having g^nted a license to enter, 
can immediately or subsequently revoke the same, such rights 
must be absolute and unconditional, as they proceed on the 
same theory that recognizes every man’s house as his castle 
and inviolate from those not invited to enter. 

When the legislature insists that a certain class of condi- 
tion or color shall not be excluded from the place of amuse- 
ment it must do so on the ground that the place is public and 
therefore subject to legislative control, which is certainly not 



EXCLUSION OF NOTORIOUS CHARACTER 191 


the case. It is quite certain, even under the cited decisions, that 
the manager’s right of exclusion is not taken away, and he 
may continue to exercise the same, although incurring some 
prescribed liability under the statute for exercising a func- 
tion which is clearly of a private and personal nature. He can 
consistently exercise his full powers of revocation, for in that 
respect there is no question of the abrogation of his right. 

§ 163. Exclusion of notorious Characters. 

A person of notoriously bad character can properly be 
excluded from a theater as affecting patron^e and tending 
to annoy the patrons, and such would be equally true of an 
intoxicated, insane or otherwise objectionable person. This 
is apparent and justifies the act of exclusion or ejection. 

The theatrical business is of such a semi-public nature, 
depending on general patronage, that the manager is forced 
to protect his patrons and their feelings; otherwise they 
will refuse to attend his place of business. Their sensibilities 
must not be outraged by objectionable people who are obnox- 
ious either in morals, appearance, conduct or personal condi- 
tion. The rule is of easy application and is properly enforced 
in the interest of the comfort of the audience and the business 
of the manager. 

The right of the management to refuse admission to an 
insane person or a person afflicted with a contagious or infec- 
tious disease does not need judicial sanction, so clear is the 
wisdom of such exclusion. An analogous case is found in 
the law as applied to a sleeping car company. 

In Pullman Co. v. Krauss, 40 So. Rep. 398, the Alabama 
Supreme Court held that the right of a person to a berth or 
passage on a sleeping car is not unlimited, but is subject to 



192 EXCLUSION BECAUSE OF DRESS 

such reasonable regulations as the sleeping car company may 
prescribe, and that a rule excluding insane persons and persons 
afflicted with contagious or infectious diseases is reasonable. 
The plaintiff in this case had purchased a sleeping car ticket, 
but on its being discovered that he had a contagious disease, 
the conductor refused to let him ride on the car. The court 
held that the company was within its rights in refusing him 
passage, though it was bound to offer to return the purchase 
price of the ticket. 

For the same general reasons the manager should refuse 
to admit anyone in a filthy condition of dress or so attired as 
to cause discomfiture to others. He can go to any unreasona- 
ble extreme in this direction and refuse to admit soldiers in 
uniform, people in outing dress or those not wearing regulation 
evening clothes. The motives of the manager’s refusal to 
admit are immaterial, and he is not under legal obligation, 
because a license has been granted him, to admit any person 
whom he chooses to exclude. To refuse admission to one in 
dirty condition of dress or coatless may seem more logical than 
to exclude a sailor because of his uniform or a man not in 
evening garb. The principle does not depend, however, on 
such reasoning, but solely on the inherent right of the man- 
ager to admit to his place of amusement only such persons as 
he wishes, and those who do not satisfy his ideas of fitness in 
the matter of dress he can exclude. 

If the person who is refused admission has acquired a ticket, 
he has an action of contract (not of tort) against the manager 
and can recover the price paid for the ticket and any actual 
expenses incurred in attempting to obtain admission to the 
place. 


See ante, § 146. 



EXCLUSION BECAUSE OF DRESS 


193 


This question was recently passed upon (April, 1907) by 
the Rhode Island Superior Court in the case of Buenzie v. 
Newport Amusement Association. 

There a chief yeoman of the United States navy was refused 
admission to a pavilion because he was wearing a naval uni- 
form, and the Court held that because the plaintiff was in the 
garb of the United States navy, he was in no different legal 
position from one who is excluded because he is not in even- 
ing dress or for any other reason, though it may have been 
but the whim of the defendants. 




TICKET SPECULATORS 

RIGHTS OF MANAGER AND PUBLIC IN RESPECT 
OF SAME 


FORGERY OF TICKET 




TICKET SPECULATORS 


197 


CHAPTER IX 

§ 164. Ticket Speculators and TKeir Standing. 

The peculiar rights of a manager in respect of control over 
admission to his place of amusement necessarily determine the 
ability of ticket speculators to do business. The manager can 
properly refuse admission on tickets purchased from a specu- 
lator, but should display notices to that effect at the ticket 
office of the theater, or have such condition printed on the 
tickets themselves in order to avoid any possible question as 
to damages on refusal to admit. The person purchases his 
ticket subject to the actual conditions and may not complain, 
although he has acquired the ticket in ignorance of the real 
facts. Under such circumstances the manager is warranted 
in refusing to honor tickets purchased from speculators. 

% 165. The Doctrine of Pnicell v. Daly. 

This principle was most carefully discussed and enunciated 
in the leading case of Purcell v. Daly, 19 Abb. N. Cas. (N. Y.) 
301, where the following facts appeared; 

Action was brought by Purcell to recover from Augustin 
Daly the sum of three dollars, the price paid by one Stedeker 
for two reserved seats at Daly's Theater for the performance 
of March 23, 1885. The ticket of admission was sold to 
one Aaron, who purchased the same at the request and for 
the benefit of Stedeker. This ticket was subsequently sold 
by Stedeker to one McNeany at an advanced price, but when 



198 TICKET SPECULATORS 

presented at the entrance to the theater it was not honored 
and admission was refused. McNeany then presented this 
ticket at the box office of the theater, and demanded the return 
of the price paid for it, namely, three dollars, which was 
refused. Stedeker then repaid to McNeany the money paid 
to him, and in person, presented the ticket at the box office 
and demanded the return of the amount paid for it. This 
second demand was also refused. Stedeker then assigned his 
claim to recover back the price of the tickets, to the plaintiff. 

Daly was the proprietor of Daly’s Theater and Stedeker a 
speculator in theater tickets duly licensed by the proper 
authorities. The defendant for some time had endeavored 
to stop speculation in tickets of admission to his theater, and 
to that end issued a peculiar form of ticket to persons applying 
for admission and caused a notice to be conspicuously dis- 
played in the vestibule of his theater informing all persons 
that tickets purchased or sold on the sidewalk were worth- 
less, and that they would not be received at the door of the 
theater, and requesting all parties to read the notification on 
each slip. This notification printed on each ticket or slip 
Was to the effect that a ticket so issued was a simple license 
and issued to the party applying for the same by name and 
was not transferable and would be refused at the door if 
purchased or sold on the sidewalk. 

The court on these facts found that the plaintiff could not 
recover, on the ground that the theater was private property, 
and governed so far as the public was concerned by such 
rules and regulations as the defendant saw fit to make. The 
same being in no sense a public enterprise and not governed 
by such rules as apply to public institutions. 

“The license of a ‘ticket speculator,’ so far as it has any 
validity, simply authorizes him to conduct his business on 



TICKET SPECULATORS 199 

the sidewalk, within the limits prescribed. Neither the license 
to the owner of the theater nor the license to the ticket specu- 
lator adds to or takes from the rights of the parties to the 
contract made when the proprietor sells a ticket. The rights 
of the purchaser and the duties of the proprietor are measured 
by the terms of the contract as in fact made. The privilege 
accorded by the city authorities cannot change the inherent 
nature of a theater ticket” 

§ 166. That Ticket Speonlatoi is Duly licensed Hakes No Differ- 
ence in the Application of Bnle. 

That a ticket speculator is licensed by the local authorities 
to deal in theater tickets and is engaged in a lawful business 
does not alter the right of a manager to refuse admission on 
a ticket sold by him, as the privilege accorded by the city 
authorities cannot change the inherent nature of a theater 
ticket. If that ticket could be bought and sold by anyone, 
as are railroad tickets, the rule would be different; but as a 
theater ticket is merely a revocable license, the manager has 
a right to refuse admission thereon, and it is competent for 
him to refuse to recognize tickets purchased by a speculator 
and resold to another, and he may warn persons intending 
to so purchase tickets that the same will not be accepted 
notwithstanding a city ordinance has given power to the 
authorities to license a ticket speculator and thereby give him 
authority to carry on that business. There can be no question 
of discrimination involved in such a case. 


Collister v. Hayman, 71 N. Y. App. Div., 316. 



200 


THE “METCALF CASE” 


§ 167. The “ Metcalf Case,” People v. Flyan. 

The same principle has recently arisen in another form in 
the so-called “ Metcalf Case,” which is reported in People v. 
Fljmn, Supreme Court, N. Y. App. Div., July I2, 1906, N. Y. 
Supplement, vol. 100, page 31. 

The defendant was the manager of a theater and a mem- 
ber of the Theater Managers’ Association of New York. 
The complainant, James S. Metcalf, a dramatic critic and 
writer, charged Flynn and other theater managers with enter- 
ing into a criminal conspiracy to prevent him from exercising 
his lawful calling of critic by making an agreement to exclude 
him from the theaters managed by them, and by carrying 
out such agreement and forcibly preventing him from enter- 
ing after he had purchased a ticket of admission. 

At a meeting of the Theater Managers’ Association of 
New York, held in January, 1906, a resolution was adopted 
not to admit Metcalf to the theaters under the management 
of a large number of the members, and this because the 
association felt that Metcalf had persistently attacked their 
personal integrity and had made unjustifiable attacks upon 
the religious faith of certain members. 

Fl3mn was a party to the original agreement, and it was 
claimed he was guilty of a criminal conspiracy therefor. 

The court, however, held that there was no such legal 
conspiracy. “ If the various theater managers had the right 
to refuse admission to the complainant to their theaters, an 
agreement to do so and the subsequent preventing of him 
from entering them was not unlawful unless such agreement 
was entered into, not to protect their own interests or to 
please their own fancies, but for the sole purpose of injuring 
the business and calling of the complainant. 



THE “METCALF CASE” 


201 


“ The rights of theater managers and theatergoers have been 
recently considered by the Court of Appeals in Collister v. 
Hayman, 183, N. Y. 250, and it was there decided that the 
conducting of a theater is a private business, which the pro- 
prietor can open or close at will, admitting as many as he 
sees fit, and charging what he may choose as a rate of 
admission. 

“The particular matter under consideration in that case 
was the right of one who purchased from a speculator a 
limited ticket, and in upholding the manager’s right to limit 
a ticket, the court held that ‘they (theater managers) can 
make it a part of the contract and a condition of admission, 
by giving due notice and printing the condition on the ticket, 
that no one shall be admitted under twenty-one years of age 
or that men only or women only shall be admitted or that 
a woman cannot enter unless she is accompanied by a male 
escort and the like.’ Taking the holding of the court of 
last resort, therefore, in its broad sense, the manager and 
proprietor of a theater has the right to say who shall enter 
his place of entertainment and who shall not or what class 
of people shall be entitled to do so and what class shall not. 
This necessarily from the fact that his enterprise is a private 
one and not public and because, while he may entertain the 
public at large if he sees fit, he is under no obligation to 
do so. His rights and duties are not like those of carriers 
of passengers, for example, who have public franchises and 
are under obligations to give public service. 

“ The relator and his associates did not, therefore, enter 
into an unlawful agreement when they agreed among them- 
selves that the complainant should not be admitted to the 
various theaters managed by them. If they disliked his 
presence or thought his attendance was injurious to their 



202 


TICKET SPECULATORS 


business, they could agree that he should not be permitted 
to attend. If he attempted to do so, their place of amuse- 
ment, being their own and being a private place so far as 
any individual or the public was concerned, they had a right 
by such reasonable force as was necessary, to prevent him 
from entering. Their acts, therefore, in so preventing him 
were not unlawful acts.” 

§ 168. The jUanager Hay Sefuse to Admit on Ticket Fnichased 
of a Speculator. 

This attitude is entirely optional with the management 
and is a necessary result of the general right to refuse any- 
one admission, and therefore it can apply the rule to certain 
tickets and not to others. 

This, while in effect discrimination and inconsistent with 
the general idea of fairness, is merely an application of the 
well-settled principle of the implied right of revocation for 
any reason or no reason at all. The public sees but little 
difference between a ticket purchased from a sidewalk specu- 
lator, which the management refuses to honor, and a ticket 
purchased from an established general ticket agency supplied 
with tickets by arrangement with the theater, that the man- 
agement honors. The fact remains, however, that a ticket 
is but a personal license with power of revocation and not 
a note or bill equally good as it passes from hand to hand. 
It is subject to the will of the manager, who has the legal 
power to insist that it shall not be resold under certain con- 
ditions. ^ He can arbitrarily do quite as he pleases. The box 
office of a theater differs from a shop in that in the latter 
whatever is for sale can be required as a matter of right by 
anyone who selects the article and proffers the price before 



MANAGER’S RIGHTS 


203 


it is withdrawn from sale. In the case of a box office no 
such rule obtains, and the public must remain content with 
what is offered and cannot demand as of right what may 
be unsold or reserved for others. The rule of first come 
first served, while more fair, has no legal application, and 
though it would doubtless tend to a better and more loyal 
patronage, is not compulsory, nor can it legally be made so 
without overturning the established doctrine of ticket law. 
The manager can dispose of his tickets as he pleases, can give 
them to speculators for sale at advanced prices and be 
pecuniarily interested therein; or hold certain seats in reserve 
for regular patrons or for selected persons, since the whole 
matter is entirely within his control. How many tickets, or 
when or where or to whom the same shall be sold is not 
subject to legal supervision in any respect, save as to sales 
beyond seating capacity or against the provisions of some 
building or fire ordinance. Statute may attempt to regulate 
this matter, but it is doubtful if any law could be framed 
which could accomplish any real or practical change in the 
present method of control, without being unconstitutional. 
Laws have been quite generally passed prohibiting sales of 
tickets by speculators on the sidewalks and streets of cities, 
which are just, as protecting the public from what is defined 
as a nuisance, as these sellers often misstate as to location of 
the seat offered, sell forged or invalid tickets to unsuspecting 
persons or obstruct travel on the sidewalks. 

The purchaser has no practical redress, as the speculator 
has disappeared by the time the deceit has be^ discovered. 
This is a matter properly within the police power of the 
legislature, which can and should pass laws protecting the 
public in such respect. 

While catering to public patronage a theatrical busi- 



204 


FORGERY OF TICKET 


ness still remams a private enterprise, and its opening or 
closing is a matter of the personal desire of the manager, 
who is best able to determine how his business shall be 
conducted. These statements of law will serve to reconcile 
and answer many questions which are at times annoying 
and perplexing and not generally understood. The theater, 
it must be borne in mind, is not a public institution, and while 
regulated, licensed and controlled by statute and ordinance, 
it remains a private enterprise, depending on the public for 
support, yet with free powers of self-management and the 
right of arbitrarily determining those who shall have admis- 
sion within its portals. While just criticism can be made 
of the manner in which certain managers treat the general 
public in some respects, such are matters incapable of legal 
control or adjustment, for in the words of Lord Mansfield, 
“ the proprietors of a theater have the right to manage their 
property in their own way.” 

A theater is a private estate, and the manager has as full 
control over it as the householder over his home. On no 
other principle could the theater owner compel the public to 
respect his private rights, which are personal despite the 
public nature of the business he carries on. His catering to 
the public does not destroy the privaqr of the place and 
business he conducts. 


§ 169. Foi^ery of Tidcet. 

A false ticket wholly printed and in no part written is 
nevertheless a forgery, and although it does not state any 
terms of the contract in detail, but only abbreviations and 
words from which a contract may be properly inferred and 
be legally stated, it is still evidence, showing a valuable legal 



FORGERY OF TICKET 


205 


interest which arises from the possession and ownership of 
the instrument. Although it is wanting in details of language 
fully stating the nature and extent of the contract, it is 
sufficiently indicative of a promise or obligation to render it 
an instrument of value, a forgery of which would clearly 
prejudice legal rights. Such false instrument would, if genu- 
ine, create a liability on the part of the manager to allow the 
holder thereof to enter his place of amusement, and would, 
therefore, be a contract of value in the hands of a third person, 
and although revocable, the sum paid therefor can, in case of 
revocation, be recovered back in an action of contract. Thus 
would occur a sufficient and improper invasion of legal rights. 

Commonwealth v. Ray, 3 Gray, 441. 

Benson v. McMahon, 127 U. S., 457. 




EJECTION, HOW ACCOMPLISHED 

INJURY OCCASIONED BY REMOVAL OF DIS- 
ORDERLY PERSONS 

MANAGER’S RESPONSIBILITY FOR THE WRONG- 
FUL ACTS OF HIS EMPLOYEES 

THE ESTABLISHMENT OF A CONTRACTUAL 
RELATION 

LIABILITY FOR LOSS OF PATRON’S PROPERTY 




IMPROPER CONDUCT 


209 


CHAPTER X 

§ 170. How Ejection Unst be Accomplished. 

Having determined the manager’s right to eject in any par- 
ticular case, it is important to consider the way and manner 
in which the ejectment should be performed to avoid civil 
liability for assault. This can be accomplished by the act of 
the manager or anyone under his direction or in his employ. 
There is no necessity for police interference, for a constable 
or police officer attending or employed in a place of public 
amusement has no greater or increased power than he would 
have in any other place, and is bound to discharge his duties 
in the same way and manner, with the same regard to the 
rights of the person whom he may seek to eject or arrest. If 
he is employed by the management to maintain order, while 
acting in the discharge of his duties, he has no other or greater 
rights than a private individual who might be employed in the 
same capacity to enforce the rules and regulations provided 
for the conduct of the audience. 

State V. Walker, i Ohio Dec. (Reprint), 353. 

§ 171. Not a Trespasser Until After Notice to leave. 

“ Nor is it lawful for the owner of property in defense of 
his possession to make an attack upon the trespasser without 
first calling upon him to desist from his unlawful purpose, 
unless the trespasser is at the time exercising violence.” 

Bigelow on Torts, section 384, and cases cited. 



210 


IMPROPER CONDUCT 


One who has been permitted to enter is in no sense a tres- 
passer until notified that his right to remain is revoked, and 
then, after he has had an opportunity to depart and does not, 
he becomes a trespasser, and can be ejected by the use of so 
much force as is necessary for its accomplishment. 

The revocation of the right to remain need not be explained ; 
the request to leave is ample notice of the withdrawal of the 
license. The removal, where the entrance was rightful, must 
not only be prefaced by a request to leave, but followed by an 
allowance of a reasonable interval of time for compliance with 
the demand. If the person refuses to leave, after a lapse of 
such reasonable interval, he can be forcibly ejected, but not 
before, without civil liability on the part of the management 
for the act. 


Commonwealth v. Power, 7 Met. (Mass.), 596. 
Gyre v. Culver, 47 Barb., 592- 
Woodman v. Howell, 45 111 ., 367. 


§ 172. Improper Conduct Coustitutes Trespass. 

Anyone who rightfully enters but afterwards becomes dis- 
orderly or misbehaves or conducts himself in an improper 
manner, or refuses to abide by the rules and regulations pro- 
vided by the management, thereupon becomes a trespasser, and 
after notice to leave can be forcibly ejected, his wrongful 
acts having forfeited any right he may have had to remain. 


Markham v. Brown, 8 N. H., 523. 
Wall v. Lee, 34 N. Y., 141. 

Abt V. Burgheim, 80 111 ., 92. 

Reid V. Inglis, 12 U. C C. P., 191. 
Webster v. Watts, ii Q. B., 311. 



EJECTION OF PATRON 211 

§ 173. Force Allowable to Accomplidi Bemoval. 

“ It is well settled that a person may, after requesting an- 
other to remove from his premises, and his refusal to do so, 
use force for the purpose of removing him. As the kind and 
degree of force proper to remove a trespasser must depend 
upon the conduct of the trespasser in each particular case, the 
question whether it was suitable and moderate in any par- 
ticular case is a question of fact to be left to the jury.” 


Commo&'wealth v. Clark, 2 Met. (Mass.), 23. 

The force used, to be justifiable, must be reasonable and not 
disproportionate to the requirements of the particular instance. 

Commonwealth v. Mann, 116 Mass., 58. 

Abt V. Burgheim, 80 111 ., 92. 

Commonwealth v. Bush, 112 Mass., 280. 


§ 174. The Exercise of the Bight Must be Seasonable. 

This rule should be strictly adhered to, and while the motive 
for the expulsion is immaterial, yet the exercise of the right 
must be in reason. No more force than is absolutely neces- 
sary will be tolerated, nor can any uncalled for indignity be 
perpetrated. The removal once accomplished, it is assault 
and battery to follow the evicted person up and strike him, 
and to do so affords reason for additional damages. If the 
manager uses more force than is necessary to compd the 
wrongdoer to leave, he becomes a trespasser ab initio. 

Jones V. Jones, 71 III, 562. 

Brebach v. Johnson, 62 111 . App., 131. 

Sargent v. Carnes, 84 Tex., 136. 



212 


INJURY OF PATRON 


If the act of expulsion is perfonned with wanton cruelty, 
exemplary or punitive damages will always be g^ven to the 
wronged party. 

Kimball v. Holmes, 6o N. H., 163. 

Jones V. Jones, 71 111 ., 562. 

§ 175. Injury Occasioned to Patron by Bemoval of Disorderly 
Person. 

If there is a rule of the management that an usher or 
other employee shall remove from the theater any person 
who by reason of misbehavior or of intoxication makes him- 
self obnoxious to other patrons, it is the duty of the employee 
to remove such person at once,, and if in so doing another 
patron is injured by the resistance of the wrongdoer, the man- 
agement is not liable for such injuries, as the employee was 
acting rightly in ejecting the person, and as against the patron 
who receives an injury he was doing one of the things which 
had to be contemplated as the necessary consequence of a 
lawful and reasonable act. 

In the enforcement of rules and regulations which are made 
for the comfort and protection of others against disorderly 
or drunken persons, a patron may not complain of an injury 
he sustains occasioned by the ejectment and because of his 
nearness or proximity to the trouble. The enforcement of 
this rule is a necessary and lawful act, which, neglected, would 
mke the management responsible for resultant injuries, and 
if someone is injured during such ejection, it must be taken 
as one of the risks which anyone assumes in entering a public 
and crowded place. It would, of course, be impossible to clear 
the theater of its audience before ejecting a disorderly person; 
his going should be immediate, and in removing him the man- 



EMPLOYEES’ WRONGFUL ACTS 


213 


agement cannot be made responsible for what he does to 
others in resisting the ejectment. One attending a crowded 
place resorted to by the general public assumes certain risks 
which the law considers are the logical outgrowth of the 
situation, and if the injury received was the necessary conse- 
quence of a reasonable act, it relieves the manager from the 
liability. 

Cobb V. Boston Elevated Ry., 179 Mass., 212. 

Spade V. Lynn & Boston Railroad, 172 Mass., 488. 

The same rule applies here as in the case of a common 
carrier who is bound to eject from his conveyance drunken or 
disorderly persons who annoy or molest other passengers. 
The usher or other attachS of the place of amusement acts 
rightly in ejecting a person who is intoxicated or disturbs 
others in the audience. As against a person injured because 
of such ejection the usher does one of the things which the 
patron had to contemplate as liable to happen when he entered 
the place. If people are seated in close proximity to a dis- 
orderly person, he cannot be removed without more or less 
contact, and if he pushes or falls upon and hurts a patron 
and such is the necessary consequence of a lawful and reason- 
able act, then it was one of the risks which the patron assumed 
when he entered. 

Cobb V. Boston Elevated Ry., 179 Mass., 212. 

§ 176. The Manager’s Besponsibility for the Wrongful Acts of 
His Employees. 

Under the established principles of agency a manager is 
liable for the wrongful acts of his agents or employees if done 
within the scope of their employment. 



214 


ASSAULT ON PATRON 


The manager of a place of amusement is responsible for an 
assault upon a patron committed by a special police officer, 
who was appointed by the police commissioners for the thea- 
ter at the special request of the manager, and who was 
employed and paid solely by the manager, and also for an 
assault committed by a gatekeeper at a park. 


Dickson v. Waldron, 135 Ind., 507. 

Oakland City, etc., Co. v. Bingham, 4 Ind. App., 545. 


The test as laid down by Cooley is “not the motive of 
the servant, but whether that which he did was something 
which his employer contemplated, and something which, if 
he should do it lawfully, he might do in the employer’s name.” 

Cooley on Torts, 536. 


The difficulty in applying this principle lies in defining what 
acts properly fall within the scope of that service. An em- 
ployer, however, is not responsible for the wrongful act of his 
employee unless that act be done in the execution of the spe- 
j:ial authority given by his employer. Beyond the scope of his 
employment he is as much a stranger to his employer as any 
third person, and therefore his act cannot be regarded as the 
act of his employer. 

An employer is liable for injury caused by the wanton and 
violent conduct of his servant in the performance of an act 
within the course of his emplo3anent. The master, however, 
is not liable for a wrongful, willful and unlawful act of his 
employee toward a third person, although the employee pro- 
fesses to be acting in the manager’s employment, if the act is 



ASSAULT OF OFFICER 215 

entirely independent and outside of and having no proper con- 
nection with the employment. 

Browne Domestic Relations, 138. 

Dickson v. Waldron, 135 Ind., 507. 

Article on Master’s Liability for Assault by Servant, 
33 Am. Law Reg. (N. S.), 448. 

§ 177. Duty of Hlanagemeut as to Fatrou. 

“ Managers of theaters, and others who invite the public to 
become their patrons and guests, and thus submit personal 
comfort and safety to their keeping, owe a more special duty 
to those who may accept such invitation. Such patrons and 
guests have a right to ask that they shall be protected from 
injury while present on such invitation, and particularly that 
they shall not suffer wrong from the agents and servants of 
those who have invited them.” 

Dickson v. Waldron, 135 Ind., 507, citing : 

Chicago, etc., R. R. Co. v. Flexman, 103 111 ., 546. 

Craker v. Chicago, etc., R. W. Co., 36 Wis., 657. 

§ 178. liability of manager for Acts of Segnlar Police Officer 
Called in to Enforce Begulations. 

“ It is said Kiley was a policeman, and therefore appellants 
are not responsible for his attack upon appellee. Whether, 
at the time of the injuries complained of, Kiley was acting 
as a policeman or as agent of the appellants must depend upon 
the acts done by him. Because he was a police officer, it does 
not follow that all his acts were those of a policeman; and 
because he was an agent of appellants, it does not follow that 
all his acts were those of such agent Even if he were a regu- 
lar patrolman, called in off the street by appellants or their 



2 i6 


SCOPE OF AUTHORITY 


agents to aid in enforcing the regulations of the theater, he 
would for such purpose be only an agent of appellants, and 
for his conduct as such agent, within the scope of his employ- 
ment, appellants would be responsible. If, however, after 
entering the theater he should discover appellee in the act of 
violating a criminal law of the State or a penal ordinance of 
tlie city, and should proceed to arrest him for it, such act 
of arrest would be that of a police officer. And if such arrest 
were made on the officer’s own motion without direction, ex- 
press or implied, on the part of appellants, then appellants 
would not be responsible.” 

Dickson v. Waldron, 13s Ind., S 07 - 
Jardine v. Cornell, SO N- J- L-> 485. 

§ 179. Presiunption as to OfBlcial Character of Policeman’s Acts. 

“ Where a police officer takes a disorderly person from the 
scene of his disorder to the police station, it will be presumed 
to have been done in his official character, unless such pre- 
sumption is repugnant to some rule of law or is rebutted by 
the facts of the case.” 

Jardine v. Cornell, so N. J. L., 485. 

§ 180. Acts of Employees Knst be Within Scope of Authority. 

The manager is responsible for the wrongful acts of his 
employees if performed within the scope of their authority, 
and this is so although the employee is reckless, lacks judg- 
ment or yields to passion causing an unjustifiable injury, or 
acts wantonly or even willfully. 

Cohen v. Dry Dock, etc., R. Co., 69 N. Y., 170. 

Mott V. Consumers Ice Co., 73 N. Y., 543. 



NEGLIGENCE OF AGENT 


217 


If any injury is caused by the negligence of an agent or 
employee, in the performance of the business committed to 
his charge, the master is liable, although the act was contrary 
to his orders, and an assault or other willful trespass com- 
mitted by the servant in the course of doing his master’s work 
and for the purpose of accomplishing it, is the act of the 
master, and the latter is responsible. While “ a servant may 
do great damage to another person in the negligent and care- 
less performance of his master’s service, though against the 
master’s will and contrary to his orders, yet this is a ground 
of action against the master.” 

Southwick V. Estes, 7 Cush., 385. 

Philadelphia, etc., Ry. Co. v. Derby, 14 How., 468. 


A master is responsible for a wrongful act done by his serv- 
ant in the execution of the authority given by the master, and 
for the purpose of performing what the master has directed, 
whether the wrong done be occasioned by the mere negligence 
of the servant or by wanton and reckless purpose to accom- 
plish the master’s business in an unlawful manner. 

Howe V. Newmarch, 12 Allen, 49. 

Ramsden v. B. & A. R. Co., 104 Mass., 117. 

*' In an action of tort for a willful injury to the person, the 
manner and manifest motive of the wrongful act may be given 
in evidence as affecting the question of damages, for when 
the merely physical injury is the same, it may be more aggra- 
vated in its effect upon the mind, if it is done in wanton 
disregard of the rights and feelings of the plaintiff, than if 
it is the result of mere carelessness.” 


Hawes v. Knowles, 114 Mass., 518. 



2i8 test of MANAGER’S LIABILITY 
§ 181. Test is Uanager’s Control of Employee. 

“ The responsibility of the manager grows out of and is 
measured by and begins and ends with his control of his 
employee. On this ground rests the distinction now well 
established between the negligence of the servant and his 
willful and malicious trespass ; the act in either case being done 
in the course of his emplo)ntnent. 

“ For the former the master must answer ; for the latter 
he is held not liable unless the trespass is proved to have been 
authorized or ratified by him.” 

Parsons on Contracts, p. 114, 7th Ed. and note. 

McManus v. Crickett, i East, 106. 

Corbin v. American Mills, 27 Conn., 274. 

“The master is not responsible as a trespasser, unless by 
direct or implied authority to the servant he consents to the 
wrongful act. But if the master gives an order to a servant 
which implies the use of force and violence to others, leaving 
to the discretion of the servant to decide when the occasion 
arises to which the order applies, and the extent and kind 
of force to be used, he is liable, if the servant in executing 
the order makes use of force in a manner or to a degree which 
is unjustifiable. And in an action of tort in the nature of 
an action on the case, the master is not responsible if the 
wrong done by the servant is done without his authority and 
not for the purpose of executing his orders, or doing his 
work. So that if the servant, wholly for a purpose of his 
own, disregarding the object for which he is employed, and 
not intending by his act to execute it, does an injury to another 
not within the scope of his employment, the master is not 
liable. But if the act be done in the execution of the author- 



LIABILITY FOR ASSAULT 


219 


ity given him by his master, and for the purpose of perform- 
ing what the master has directed, the master will be respon- 
sible, whether the wrong done be occasioned by negligence 
or by wanton or reckless purpose to accomplish the master’s 
business in an unlawful manner.” 

Howe V. Newmarch, 12 Allen, 49. 

§ 182. liability of Employer for Assault Committed by Employee. 

For illustration, the manager would be responsible if an 
usher committed an assault upon a patron while ejecting him, 
although the force was unjustifiable, and a wanton disregard 
of his instructions, because it was an act within the scope of 
his authority, even though an accomplishment of the manager’s 
business in an unlawful manner. On the other hand, the 
manager would not be responsible for an assault committed 
on a patron by a member of the orchestra or by a stage hand, 
for here is something done without authority and in no sense 
within the scope of such employee’s duty, whose line of em- 
ployment cannot embrace and does not contemplate such an 
act; the employee acts independently and on his own respon- 
sibility, for which the manager is not liable. 

Oakland City Agri. etc., Co. v. Bingham, 4 Ind. App., 
543: 31 N. E., 383. 

§ 183. Application of the Buie. 

The manager cannot be supposed to issue orders and control 
the acts of his employees beyond the line of their r^;ular 
and well-established duties. 

The ticket-seller binds his manager for all acts consistent 
with his box-oflSce duties; there his authority ends, and if he 



220 


CONTRACTUAL RELATION 


transcends it by ejecting people from the theater, interfering 
with the power of the stage manager or assuming to control 
the orchestra leader, the manager cannot be made liable, any 
more than if the stage manager wrongfully assumed the du- 
ties of the treasurer or a scrub man that of a special police 
officer, or a bill poster that of an usher. Each employee has 
certain defined duties and binds his employer only when he 
acts within their province. True, he may disregard orders 
as to method of accomplishment, be negligent and even mali- 
cious in carrying them out, and thus establish his employer’s 
liability; but outside of the scope of these powers, he creates 
a liability solely for his own answering, and in no way binds 
another for such wrong. The rule, broad and far-reaching 
within the confines of the scope and duty of employment, fails 
at once when the employee ceases to be under it. In some 
cases the line may be vague and doubtful, particularly when 
an employee has broad and general powers, or has several 
distinct duties to perform} it will be much less confusing, 
however, if the wrongful act is carefully measured according 
to the exact extent of the acttxal duties. This is the sole and 
determining factor. 

§ 184. Contractrial Belation Avoids Liability. 

The manager is liable only for the wrongful acts of his 
employees within the limits of the stated rule. This liability 
extends to all employees and their wrongful acts in the line 
of their employment, unless it can.be shown they acted as 
independent contractors and not as servants. If the manager 
has his bill posting done under a contract for a specific sum 
or rate, and has no control over the contractor in the sense of 
direction, as in the case of an employee, then the principles 



INJURY AND LOSS OF PROPERTY 221 

applying to independent contractors govern and the manager 
is not responsible. Here there is no relation of master and 
servant, and the relation being contractual, the contractor 
must bear the burden of his wrongful acts, which, although 
done for the manager, do not make him responsible for the 
way and manner of their accomplishment. 

See ante, § 126. 

§ 185. liability for loss of or Injury to the Property of Persons 
Attendii^ Places of Amusement. 

The obligation imposed upon the manager is that of exer- 
cising reasonable care, and he is only liable when a loss of 
property, over which the law determines he has control, is 
due to the negligence or misconduct of himself, his employees 
or agents. 

It is no part of reasonable care or its requirements that the 
management provide an employee to look after the property 
of patrons in such places as they may see fit to place it, suit- 
able for their own convenience. This was decided in the case 
of Patterson v. Hammerstein, 17 Misc. N. Y. 375 ; 39 N. Y. 
Supp. 1039. There the plaintiff purchased tickets and with a 
party of friends occupied one of a row of boxes in the second 
tier to witness the play in the defendant’s theater. Ingress 
and egress from the box was through an opening into a pas- 
sageway in the rear of the row of boxes, and the interior 
of the plaintiff’s box was screened by a curtain which was 
hung in the opening. The box was furnished with hooks, 
which were fastened to the side of the box near the opening 
and intended for use in the case of such apparel as the patroim 
of a theater are wont to lay aside while attending a per- 
formance. 

When the plaintiff first entered the box two overcoats, sub- 



222 


LOSS OF CONTRACT 


sequently ascertained to have been the property of defendant’s 
ushers, were suspended from the hooks. There was no protest 
against the presence of these articles, and the plaintiff sus- 
, pended his overcoat beside the others. During the play the 
plaintiff visited other parts of the theater, two or more mem- 
bers of his party always remaining in the box. While the 
plaintiff was absent a stranger entered the box, tarried for a 
short time without objection or complaint and departed. 
When the play was concluded it was ascertained that the plain- 
tiff’s overcoat had been taken. 

“The hooks provided were a means of enabling the occu- 
pants of the box to care for their apparel with more care and 
comfort to themselves, but an effort to imply from the mere 
presence of such hooks an assumption by the defendant of 
the custody of whatever the occupants might place thereon 
tortures reason.” 

. The test is whether the manager by his agents or employees 
assumed any control over or custody of the property lost or 
damaged. It is not enough that hooks are furnished on which 
the patron may, at his convenience, hang his hat or coat, or 
a place provided under the seat for stowing his property; he 
places his property there at his own risk, and no relation of 
bailor and bailee is etablished. The reverse is true when the 
management assumes control of the property even without 
extra charge, as where a coat or parcel-room is provided for 
patrons wherein property is checked and cared for. Here the 
manager has established the relation of bailor and bailee and 
becomes responsible as a bailee. 

In such instance the manager has voluntarily taken an- 
other’s properly into his possession, proffering to care for the 
same. The responsibility of its care is solely his, and the 
owner is not required nor expected to have further concern 



RELATION OF BAILMENT 


223 


in reference to it ; no longer is it in any sense in his custody 
and control, but in the hands of the management as bailee. 
The principles of law which govern these cases are well set- 
tled. The proprietor owes to a patron no duty of protecting 
or caring for such property as he keeps in his own custody 
and control. 

§ 186. Belatiou of Bailment Must be Established. 

To constitute a liability on the part of the management for 
the care of the personal property of a patron there must be 
established by some act of custody the relation of a bailment. 
A bailment implies the delivery of a chattel, and to subject the 
manager to liability, as such, it is a necessary constituent 
that he voluntarily assumed or retained the- custody of the 
chattel alleged to have been bailed. He must actually or 
impliedly agree and physically assume the temporary custody 
of the chattel. Until such a condition is shown to exist there 
is no bailment and until such is established the patron as- 
sumes all risk of the care of his property. The management 
cannot be said to either expressly or impliedly establish such 
relation by merely providing convenient hooks or places to 
accommodate the chattels of a patron; the duty of caring for 
the same continues to be the patron's, which is not changed 
until the manager takes them into his care, and thereby estab- 
lishes himself as bailee, after which he is liable for the safe 
keeping of the property entrusted to him. 

And when such bailment relation is established, the manager 


Claflin V. Meyer, 75 N. Y., 260. 

Schouler Bailments, § 23. 

Bunnell v. Stern, 122 N. Y., 539* 

Patterson v. Hammerstein, 17 Misc. N. Y., 375. 



224 


CARE OF MANAGER 


in the absence of bad faith is only liable for negligence and 
not for a loss occasioned by the unforeseen or legally unavoid- 
able. 

Claflin V. Meyer, 75 N. Y., 26a 

The same rule applies as to railroad companies, steamboat 
and sleeping car companies, in r^ard to articles which the 
patron prefers for his own use or convenience to keep with him. 

Wicher v. Boston & Albany R. R., 176 Mass., 273. 

Tower v. Utica, etc., R. R, 7 Hill, 47. 

Henderson v. Louisville & Nashville R. R., 123 U. S., 6r. 


§ 187. Baiden of Proof. 

The burden of proof here, as in every case, rests upon the 
party asserting the negligence of the other, and until the fact 
of negligence is apparent from some act of commission or of 
omission, the presumption that the duty to observe due care 
was performed, must prevail. The mere loss of an article by 
a patron is not evidence of negligence on the part of the mana- 
ger, the burden of proof being on the patron to show such 
n^ligence as establishes the manager’s liability. 

Cosulich V. Standard Oil Co., 122 N. Y., ti8. 

Wicher v. Boston & Albany IL R., 176 Mass., 278. 


§ 188. Where Artiele is Entrusted to Care of Management. 

Here the bailment is for mutual benefit, and the manager 
is bound to exercise ordinary care in relation to the article 
entrusted to his car^ which care must be graduated according 
to the value of the property and the temptation it may offer 
as the subject of theft. Such care being given, the mana- 



CHECK ROOM 


225 


ger’s liability ends; he is not an insurer of the property 
entrusted to his care, nor responsible for it beyond the ordi- 
nary, reasonable care. If the property is stolen he is not liable 
therefor unless the loss is the result of negligence on his part, 
and the criminal conduct of a servant or employee is not 
imputable to him if he has used reasonable care in his selec- 
tion of the same for emplo3ntnent. 

Smith V. Westfield, etc.. Bank, 99 Mass., 605. 

Whitney v. Lee, 8 Met, gi. 

Harter y. Blanchard, 64 Barb., 617. 

§ 189. Check and Coat Sooms. 

The manager in establishing a check or coat room is bound 
to have a competent person in charge, who must use ordinary 
care in checking and caring for the property entrusted to his 
care ; this room should be reasonably secure from invasion by 
thieves and protected either by constant attendance or suit- 
able fastenings. The degree of care increases according to 
the location, place and patrons, and it is a question of what 
is reasonable according to the particular place and time. It 
it not reasonable care for an attendant to confuse his checks 
and deliver the checked article to a person not its oiyner, but 
if the check has been stolen from its rightful holder and pre- 
sented, the employee cannot be presumed to know and remem- 
ber its rightful holder and is justified in delivering the article 
to the one presenting the proper check. Here the holder of 
the check is negligent in allowing it to be stolen, for as it 
represents his property he should not lose his voucher and 
carmot hold another responsible for what he has by his own 
lack of care brought upon himself; the same is true if he 
loses or misplaces his check. 



226 


LOSS OF CHECKED ARTICLE 


The manager, however, is responsible if the article is not 
produced on presentation of the check by its proper holder 
iinipfis he can show that it has been taken in some manner 
which ordinary business care, applicable to such instances, 
could not prevent 

The modem application of this rule is far reaching, and 
the ordinary care required is exacting, owing to the nature of 
the business and the character of people likely to be about and 
ready to take advantage of any lack of proper custody. 

The knowledge of the elements concerned in a business 
of so public a nature adds an additional degree to the require- 
ments of the due and reasonable care exacted of the manage- 
ment. Of property entrusted to its care, with modem facilities 
preventing any reasonable chance of loss, it is almost an 
insurer as against theft or careless delivery to the wrong person 
occasioned by negligent use of a checking system. If the 
property is confused in checking and thereby delivered to the 
wrong person, the manager is clearly responsible for its loss to 
the rightful owner. 


§ 190. Loss of Article by Theft ftom Ham^. 

Li Taylor v. Downey (Mich.) 29, L. R. A. 92 (and note) 
it was held that a hotel keeper was not liable for the theft 
of the valuables of a guest from the hotel safe by a night 
clerk. It appeared that the clerk had. been hired after a rea- 
sonable investigation into his character and was employed 
some months prior to the theft. . The same rule would apply 
to the theft of articles by the custodian in a theater; the rule 
is one of bailment, and only due care can be required. The 
manager is not an insurer, but is bound to use reasonable care 
in the selection of his employees. 



MANAGER’S DUTY 


227 


While answerable for the n^Iigence of the employee in 
charge of the property left for safekeeping, he would not be 
liable for the theft of property by such employee unless it 
could be shown he was negligent in his act of taking the 
person into his service. 

The manager performs his duty by using reasonable care 
in the selection of his employees; he is not required to watch 
their every act, and is only responsible for their wrongs when 
committed within the scope of their authority: theft is no 
part of an employee’s duty, and hence outside the line of his 
employment 

In such instances the only question of due care involved is 
the way and manner in which the manager satisfied himself as 
to the employee’s character as to honesty when he employed 
him. 

See ante, § 188. 




CONDUCT OF AUDIENCE 
RIGHTS OF CRITICISM 

DISTURBANCE OF PUBLIC PERFORMANCE 




CONDUCT OF AUDIENCE 


231 


CHAPTER XI 

§ 191. Conduct of Audience, Bight to Applaud and Hiss. 

The patrons of a theater have a right to esqpress by applause 
or cries of disapproval their opinion of a play; it is lawful 
for them to give audible and free opinions of the merits of 
the performers or the performance. So as it is right to ex- 
press appreciation by applause, it is right to hiss and thereby 
show disapprobation. It is no riot or disturbance of the spec- 
tators to express their feelings spontaneously by applauding 
or hissing the piece or the actors. 

QiSord v. Brandon, 2 Camp., 358. 

Gregory v. Brunswick, i C & K., 24. 

Rev V. Leigh, i C. & K., 29. 

§ 192. This B4;ht Confined to Unbiased Opinion. 

% 

The public who attend the theater have a right to express 
their free and unbiased opinions of the merits of the per- 
formers who appear on the stage; but people have no right 
to go to the theater by a preconcerted plan to make such a 
noise that an actor, without any judgment being formed of 
his performance, shall be driven from the stage; and if two 
persons are shown to have laid a plan to deprive a person 
who comes out as an actor of the benefits which he expected 
to result from his appearance on the stage, they are liable for 
a conspiracy. 

Gregory v. Brunswick, i C & IC., 24. 



CONDUCT OF AUDIENCE 


232 

§ 193. Ittist Ua^e No Breach of the Peace. 

In 2 Bishop’s Criminal Law, § 308, the language of Bushe, 
Chief Justice, in Rex v. Forbes, i Craw. & D. 157, is quoted 
with approbation: “They (the audience) may cry down a 
play or other performance which they dislike, or they may 
hiss or hoot the actors who depend upon the approbation of 
caprice. Even that privilege, however, is confined within its 
limits. They must not break the peace or act in such a 
manner as has a tendency to excite terror or disturbance. 
Their censure or approbation, although it may be noisy, must 
not be riotous. That censure or approbation must be the 
expression of the feelings of the moment, for if it be pre- 
meditated by a number of persons who conferred beforehand to 
cry down the performance of an actor, it becomes criminal. 
Such are the limits and privileges of an audience even as to 
actors and authors.” 

The manager may adopt rules and regulations for the 
conduct of his patrons, reasonable and proper for the com- 
fort and safety of the audience, and has a right, to such extent 
at least, of regulating their conduct and behavior. Any pa- 
tron who violates a rule so provided or is guilty of any dis- 
turbance or disorder, though the same does not constitute 
a breach of the peace, may be expelled, but the manager or 
those in his employ before using any force on the body of 
such person must first request him to leave, and if he refuses, 
then and then only can such force as may be necessary to 
accomplish his removal be used. 

State V. Walker, i Ohio Dec. (Reprint), 353. 

The manager has full right to insist that his patrons 
bdiave in an orderly manner and not in such a way as to 



CRITICISM 


233 


interfere with the comfort and enjoyment of others. This 
rule requires propriety of deportment and silence when the 
play is in progress, as no one may so conduct himself as to 
deprive others of the full pleasure of what they have paid 
to see and hear. The rule is one of reason and fairness and 
applied wholly within such limits. 


§ 194. Critieuin. 

The editor of a newspaper has the right, if not the duty, 
of publishing for the information of the public fair and 
reasonable comments, however severe in terms, upon any- 
thing which is made a subject of public exhibition, whether 
it be a theater, a dramatic performance, a production, a play, 
actors or their acting, artists or other performers, and such 
a publication falls within the class of privileged communi- 
cations for which no action can be maintained without proof 
of actual malice. Whatever may be offered as a public show 
or spectacle, with all that goes to make it, is subject to the 
opinion and criticism of the press. Opinions vary, indi- 
viduals have different conceptions of what should be done 
or provided, and the editor of a public journal has every right 
to publish his opinions in reference thereto. This criticism 
may ridicule or censure the play or artist in severe terms, yet 
if it is in the spirit of candid crticism, not intended to injure, 
it is not libelous. The words may be harsh and of condemna- 
tion, yet if made without an intent to injure the manager or 
performer in the opinion of the public, although they really 
do, such words are privileged and allowable. The condemna- 
tion of books, paintings and other works of art, music, plays, 
architecture, and generally of the product of one’s labor, skill 
or genius may be unsparing, but it is not actionable without 



234 


CRITICISM 


the averment and proof of actual malice. In order to consti- 
tute such malice it is not necessary that there should be direct 
proof of an intention to injure. Such an intention may be 
inferred from false statements, exceeding the limits of fair 
and reasonable criticism and recklessly uttered in disregard 
of the rights of those who might be affected by them. Malice 
in utterit^ false statements may consist either in a direct 
intention to injure another or in a reckless disregard of his 
rights and the consequences that may result to him. Any- 
one offering his creation, abilities, work or production, his 
music, acting or skill, exposes himself to observations and 
criticisms which may be harsh, scathing and merciless. While 
to the author his work may appear perfect and the manager 
may have felt justified in giving the public what he has offered, 
yet the individual feelings are not reckoned in the adjustment 
of the right of criticism. The critic is supposed to rate another’s 
works or efforts fairly and with due and proper regard to the 
truth, and he acts within the confines of his right until such 
time as his criticism is made with an intent to injure; this 
constitutes legal malice. The rule is definite and exact and 
affords no protection beyond this point. Unless the element 
of malice is shown there can be no action for libel, despite 
the suffering and damage which may have arisen from the 
harsh and even unjust criticism. The question of criticism 
and what it should be, outside the bounds of malice, is impos- 
sible of exact legal definition. So long as the element of 
malice is lacking the courts will not determme the matter 
written as libel, for the question of the harshness, severity, 
or even unkindness of the criticism has absolutely nothing to 



DISTURBANCE 


235 


do with its determination. The element of* malice must ap- 
pear before any compensation in damages can be awarded. 


Didbin v. Swan, i Esp., 28. 

Gtott V. Pulsifer, 122 Mass., 235. 

Dooling V. Budget Pub. Co., 14+ Mass., 238. 

Fry V. Bennett, 28 N. Y., 324. 

13 Cyc., 331. 

Fay V. Harrington, 176 Mass., 270. 

The proprietor of a theater cannot maintain an action for 
a libel on one of his performers, although by reason thereof 
she was deterred from appearing on the stage and to the in- 
jury of the proprietor. The action is always personal. 

Ashley v. Harrison, Peake, 256 

§ 195. Disturbance of Public Ferfonnance. 

Statutes enacted to prevent disturbance of public meetings 
apply to amusements, although not expressly mentioned. What 
constitutes an interruption and disturbance caimot easily be 
brought within a definition applicable to all cases ; it must de- 
pend somewhat on the nature, usage and character of each 
particular kind of amusement and the purposes for which it 
is held, and must be decided as a question of fact in each par- 
ticular case. Although a disturbance may not be easy to define 
beforehand, there is commonly no great difficulty in ascertain- 
ing what is a willful disturbance in a given case. It must be 
shown to be willful and designed, an act not done through 
accident or mistake. 

Proprietors and all others persons interested either as audi- 
ence, performers or employees are protected in their rights 



236 


DISTURBANCE 


against willful disturbance so that the performance and every- 
thing involved therein may be witnessed, heard and enjoyed. 

Commonwealth v. Porter, i Gray, 476. 

A meeting is disturbed when it is agitated, molested, inter- 
rupted, hindered, perplexed, disquieted or diverted from the 
object of the assembly, and this may consist in either lang^ge, 
conduct or behavior : either by speech, noise or art. 

See 14 Cyc. 542 Tit. “ Disturbance,” and cases cited. 



THEATRICAL CONTRACTS, THEIR SCOPE 
AND NATURE 

MUST BE LEGAL AND MORAL, AND NOT 
VAGUE OR UNCERTAIN 
PERSON NON COMPOS MENTIS 
MARRIED WOMEN 
MINORS 
CORPORATIONS 




INTENT OF PARTIES 


239 


CHAPTER XII 

§ 196. A Theatrical Contract Explained. 

A theatrical contract does not differ in essential details 
from any legal agreement, except when usage has estab^ 
lished certain rules of construction regulating its perform- 
ance. Where there is a well-established usage pertaining to 
a theatrical matter of which the parties had knowledge at 
the time of making their contract, such is binding. 

McCaull V. Braham, 16 Fed., 37. 

Am. Academy of Music v. Birt, 26 W. N. C (Pa.), 351. 

Duff V. Russel, 60 N. Y. Supr., 80. 

Watson V. Russell, 149 N. Y., 388. 

In no respect can a contract be more unfortunate than to 
leave open any question as to what is really intended; on this 
point there must be an actual and intelligent meeting of the 
minds. It is not the policy of the law to hold parties to an 
agreement not understood or contemplated, and where one 
party intends one thing and the other another, while all the 
other essentials of the contract exist, it lacks an agreement 
and must fail as a legal contract, no matter how formally 
it has been entered into, or with what care it has been drawn 
up and executed. 

§ 197. The Intent of the Parties. 

To avoid complications every effort should be made to 
plainly state the actual intent of the parties, leaving no point 
of essential detail uncovered. Only in this way can the con- 



240 


ORAL TESTIMONY 


tract be assuredly legal and binding. The subject matter is 
the in:q)ortant reason for any contract, and the agreement 
should explain with clear and sufficient detail all that the 
parties desire embraced within its terms. The agreement 
must not be vague, indefinite or uncertain; the purposes of 
the parties should appear with distinctness and in sufficient 
detail; otherwise there is no meeting of minds and no con- 
tract. 

A written agreement is not elastic and will not include 
matters which may have been discussed, but have not been 
made a part of the writing. 

§ 198. Oral Testimony Not Admitted to Show Toigotten Terms. 

Mistake when Corrected in Equity. 

The oral agreement once reduced to writing in an attempt 
to reflect the intent of the parties, is fixed, and no forgotten 
matter or detail can be added. The rule is well settled which 
decides that the terms of a written Contract, not presenting 
a case of latent ambiguity, are not to be varied by extrinsic 
and parol evidence. 

Black y. Batchelder, 120 Mass., 171. 

Oral testimony cannot be admitted in a court of law to 
show a mistake in a written instrument, and if such mistake 
actually exists, it must be corrected by proceedings in equity 
where the court is not limited to affording relief only in mis- 
take of fact, and a mistake in the legal effect of a description 
or in the use of technical language may be relieved against 
on proper proof. 

Canedy v. Marcy, 13 Gray, 373. 

McGuiimess y. Shannon, 154 Mass., 86. 



CONTRACT MUST BE CERTAIN 241 
§ 199. IRie 4gzeemeiit Host. 1)eTiegal and UoraL 

The subject matter of a contract must not only be definite, 
certain, and entirely stated, but must be legal, moral, and 
in accord with the rules of public policy. Unless the require- 
ments of this rule are satisfied the agreement, although for- 
mally made, is not binding on the parties thereto, as cover- 
ing matter which the law does not recognize or tolerate. 
See post, § 223 . 

§ 200. The l^Teement Kiut Not be Vagne. 

The contract must be clear and positive in its terms and 
not vague, uncertain or ambiguous. Therefore a contract, 
whereby the manager is to pay a stated sum a week for a 
season which is to “commence some time in the month of 
September and shall continue as long as the same may be 
mutually agreed upon” is not enforceable, for “where the 
parties contemplate by their own actions in a formal agree- 
ment to make that certain which is uncertain in an informal 
agreement, which is not intended to be the final agreement, 
there is nothing which the court has any jurisdiction to en- 
force. Under these circumstances the paper is to be treated 
as nothing but a step in a negotiation looking to a final settle- 
ment.” Such contract is necessarily void from its uncer- 
tainty; it establishes no basis upon which damages could be 
ascertained in case of a breach. 

McIntosh V. Miner, 37 N. Y. App. Div., 483. 

Where a printed clause in a contract, if not absurd, is at 
least ambiguous, parol evidence is admissible to show a usage 
which would tend to explain. 

Baron v. Placide, 7 La. Ann., 229. 



242 


PARTIES TO CONTRACT 


And while a contract will not fail for uncertainty if from 
it the court can ascertain the real intendment of the parties 
thereto, it is well to avoid, if possible, all chances of doubtful 
construction. 

Raymond v. Rhodes, 135 Mass., 337. 

Grier v. Puterbaugh, 108 111 ., 602. 

§ S!01. Parties to the Contract. 

No agreement can be made without parties, and they must 
be legally competent to enter into a contractual relation. 
Certain classes of individuals are denied this privilege by the 
law and have no power to obligate themselves, no matter how 
formal the language or how great the good faith of their 
intentions. These persons are divided into classes which 
we consider separately. 

§ 202. Persons Non Compos Nentis. 

The parties to a contract must be legally competent to enter 
into an agreement As an agreement is dependent upon the 
mental ability and power of the parties to understand, it is 
clear that an idiot or insane person cannot' be bound by what, 
in another’s case, would be a legal undertaking. Such per- 
sons must act through a legally constituted guardian, and if 
the services of one non compos mentis are desired, such can 
only be contracted for through the channel of guardianship. 
Often persons of meager mental ability are employed to be 
exhibited in public amusements, such as museums, circuses and 
side shows, and if oMitracted with personally, such agreement 
has no binding force or power and can be repudiated by the 
maker or his legal rq)resentative. Such persons should be 
iinder a guardian, and the latter can properly represent the 



MARRIED WOMEN 


243 

interests of his ward in such agreements as it may be neces- 
sary and proper to make. 

The test of mental capacity is one of fact, and the ques- 
tion involved is whether the person has sufficient mental 
ability to imderstand and realize the import of the contract 
he may have undertaken. The mentality need not be extraor- 
dinary, for many below the normal degree of mental alert- 
ness may have sufficient mind to enter into and understand the 
particular agreement attempted. This is all the law requires, 
for anyone who understands can assent and become bound; 
one who does not understand cannot possibly assent in the 
legal sense, is not bound by his words or acts, and has full 
power to repudiate any contract he has undertaken. This 
principle is too well established to need the citation of 
authorities. 

§ 203. Married Women. 

At common law a married women has no ability to make 
contracts, and such as are attempted are void and as though 
never made; her capacity to contract has been extended by 
statute in various ways in the different States. She is now 
quite generally allowed to carry on business and can do so 
as a femme sole by conforming to certain statutory require- 
ments; these, of course, must be strictly complied with and 
differ in the several States. As the power to contract is all 
essential in any agreement, it is well to consider in each in- 
dividual instance the matter of qualification as provided by 
statute. This subject is too extended for discussion here, and 
reference is made to works treating on the status of married 
women at common law and rmder statutes. 

At common law a contract made by an actress who is a 
married woman is not binding upon her. 

Burton v. Marshall, 4 Gill (Md.), 487. 



244 


MINORS 


§ -204. Miiioia. 

All persons under the age of twenty-one are minors or 
infants at common law, and their contracts are voidable at 
their option before or after they have attained their ma- 
jority. A minor becomes of age the day preceding his twenty- 
first birthday. 

While an infant may avoid his contract at pleasure, the 
adult with whom he has made the agreement is bound thereto 
and must fulfill the same strictly, unless the infant on his own 
responsibility sees fit to msdce the avoidance. The theory 
is based on the reasoning that an infant is of tender years 
and does not possess business judgment, and, therefore, if 
bound to his contracts, wrong may result. Hence the right 
of avoidance. As the adult is of years of discretion he is 
held by the contract and must chance the probability of the 
minor’s refusal to abide thereby. There is no certainty in 
contracting with a minor, for although on avoidance he is 
obliged to return the consideration paid him, nevertheless if 
he has lost, consumed or sold it during minority, he can 
avoid his obligation and not be compelled to repay. For 
instance, if a minor is paid a definite sum to perform some 
service, and decides not to render it, he should return the 
amount received ; yet if he has spent it and can make no resti- 
tution, he is still legally justified in canceling his agreement. 
This rule, though harsh, is settled, and in contracts for per- 
sonal services it is at least safe to insist on performance 
before payment. It is well in this connection to remember 
that xmder most circumstances the supporting parent is en- 
titled to collect and hold the minor’s earnings, and in such 
instances a pa3rment to the infant is no payment at all and 
may again be collected by the parent, unless he authorizes 
or sanctions the payment to the child as his agent. 



MINORS 


245 


These instances are referred to as important to consider 
in dealing with minors whose services are made the subject 
of contracts, for many hardships have resulted from ignorance 
or carlessness in respect thereto. 

The actual age of a person legally settles the question of 
minority, and although the infant misstates his age, either 
honestly or with intent to deceive, and has every appearance 
of being older than he really is, he is nevertheless an infant 
and is not bound by his contracts. Then, too, if he performs 
his contract, he is not bound by the stated compensation, and 
can sue and recover whatever his services are reasonably 
worth. There is a mistaken impression that a man is of age 
at twenty-one and a woman at eighteen. Both man and 
woman arrive at legal majority at twenty-one, or, more 
strictly, on the day preceding the twenty-first birthday. 

In statutes which prohibit the employment of children under 
a certain age in public exhibitions or their admission to places 
of amusement, the vital question is as to the actual and true 
age, and not as to whether the minor’s appearance .as a per- 
former or his admission as a spectator to the place of amuse- 
ment endangers his morals or health. The employment or 
admission under the stipulated age is the unlawful act, which 
vitiates contracts in respect thereto and constitutes a misde- 
meanor. 

Birkett v. Chatterton, 13 R. I., 299. 

Re Stevens, 70 Hun, 245. 

State T. Maddn, 51 Mo. App., 129. 

No Other question is at issue, and unless the necessary 
quantum of age exists, all other conditions are unavailing 
as defense or excuse. The law presumes a minor to be of 
tender years and absolutely in need of protection, which rule 



246 


CORPORATIONS 


is universal and is not to be controlled by the facts of any 
particular case, or to be changed in instances of great hard- 
ship. 

The only protection possible is to ascertain the actual age 
of the person employed where statutes prohibit performances 
of minors or their admission to amusements under a certain 
age. It is no excuse for a violation of such a statute that 
the minor willfully and intentionally misrepresented as to his 
actual age, or looked older than he really was. 

Re Stevens, 70 Hun (N. Y.), 245. 

Birkett v. Chatterton, 13 R. L, 299. 

People V. Meade, 24 Abb. N. Cas. (N. Y.), 357. 

The legislature has power to enact laws which prohibit the 
employment of children of immature years in theatrical or 
amusement exhibitions, and the mayor of a city cannot by his 
consent legalize or allow a participation in such by children 
under the prescribed age. The prohibition is absolute and once 
created cannot be waived. 

People V. Ewer, 141 N. Y., 129. 

People V. Grant, 70 Hun, 233. 

State V, Macken, 51 Mo. App., 129. 

§ 205. Corporations Organized for the Carrying on of Amusement 
Enterprises. 

The fact that an amusement enterprise is incorporated does 
not alter its liability in respect of contracts and duties toward 
those who patronize it. So long as the persons conducting 
the business act within the powers and limitations of a cor- 
poration the liability is against the company, and processes 
and suits are limited thereto. 



CORPORATIONS 


247 


A corporation cannot exceed the powers given it by 
statute or perform any acts which are not legally sanctioned ; 
to do otherwise creates a personal liability on the part of the 
officers, and not infrequently involves the directors and stock- 
holders. The corporation must act through and by powers 
delegated to its officers as matter of record, the effect of 
which is always open to judicial review. A corporation cre- 
ated and domiciled in one State can properly do business in 
another, provided it has qualified by filing such papers and 
making such returns as may be required of foreign corpo- 
rations. Many States have stringent laws in this respect, a 
violation of which is attended by heavy fine and an invalida- 
tion of all acts attempted by the company. 

The necessity of this compliance with the laws of States in 
which a corporation does business is often overlooked and 
frequently causes serious and unexpected consequences. In- 
corporation sought to limit or avoid personal liability is 
excellent as a preliminary step, but avails little unless the 
business is subsequently operated strictly and fairly under the 
limitations applicable to a corporate body. Many managers 
obtain a charter, advertise as a legally organized company, and 
then proceed to do business in the way of aifirm or individual, 
creating the very kind of liability sought to be avoided. 
A corporation first and always must adhere to the fixed rules 
by which a corporation can do business. The involved and 
important law of corporations is a subject which must be 
treated by itself; it has a multiplicity of exact requirements 
and compels a strict compliance with governing statutes. The 
individual who thinks a charter a shield of protection, too 
often finds it a legal pitfall. The incorporated company does 
well to see that it is legally chartered and continually within 
the limits of its determined powers; the individual who deals 



248 


CORPORATIONS 


with it can do so in safety only when he has ascertained the 
legality of its acts and determined whether it can do what 
it attempts or proffers. See post § 231. 

In many States a foreign corporation (t. e., one incorpo- 
rated by the laws of another State or country) is expressly 
prohibited, by a severe penalty, from doing any business within 
their limits until after the corporation has filed certain papers 
and appointed an agent resident within the State in which 
business is sought to be done, on whom legal papers can be 
served. Here is a matter of important consideration to an 
amusement company which does business in many States, by 
sending to them its attractions, without first complying with 
the laws pertaining to foreign corporations. Such neglect 
may entail great loss and other serious consequences. 

The law is exact in its requirements as to stock, records, 
state returns and the way and manner in which the business 
is contracted. All the power to perform its functions is in the 
corporation until it delegates certain phases of it to its officials. 
This is accomplished by vote, primarily of the stockholders, 
who may empower the directors or officers to act for them. 
Herein may fail all the machinery which is intended to do 
away with troublesome individual liability. From personal 
experience it seems quite safe to say that a very large per- 
centage of so-called close business corporations, legally in- 
corporated and properly started, through ignorance of how 
to conduct the business in accord with legal requirements 
are converted into partnerships with the liability which at- 
taches to the individual members thereof. Generally this 
fact is discovered too late for correction or avoidance of 
pecuniary loss and sometimeis criminal punishment No 
branch of the law is so generally availed of and so generally 
misunderstood, with serious resulting trouble. This volume 



CORPORATIONS 


249 

would be far from complete did it not caution and advise 
against a careless administration of corporation affairs. 

The courts do not presume, in the absence of evidence, 
that an agent or representative has any power to act for and 
bind his company. The facts must appear from which the legal 
status will be determined. The advertisements, statements, 
letterheads or contracts even of a corporation or its officials 
do not finally establish the legal liability. That must be 
determined from the actual powers and votes of the com- 
pany, for, unlike an individual, a corporation cannot be pre- 
sumed or committed to the doing of an3rthing not provided 
for in its powers or by the proper vote of its legally consti- 
tuted officers. 

Vogel V. St Louis Museum, etc., 8 Mo. App., 587. 

Ashuelot Mauul Co. v. Marsh, i Cush., 507. 

The basis of liability, the validity of contracts and account- 
ability for other acts depend in every instance on the power 
to do the particular thing as vested in the corporation and 
whether the doing of the same has been properly delegated 
to an official or agent. 

See Tucker's Manual of Business Corporations (2d ed.), 
14, 148, 155, 227, 231, to which profitable reference can 
be made in respect of corporation matters in general. 




THE CONSIDERATION OF A CONTRACT 
IMPOSSIBLE AND ILLEGAL AGREEMENTS 
ACT OF GOD AS EXCUSE FOR PERFORMANCE 




IMPOSSIBLE CONTRACTS 


253 


CHAPTER XIII 

§ 206. The Gonsideratioii of a Contract. 

The consideration of an agreement is another important 
element, and must not violate certain wdl-defined rules of 
contract law, which require it to be ascertainable, a matter 
of value, and 1^1 in the accepted sense of the word. 


Harriman on Contracts (2d Ed.), § 85 et seq. 

§ 207. Impossible Contracts. 

A contract founded upon an impossible consideration, and 
necessarily valueless one, is void, and stands as though never 
made, for the law will not compel a man to do that which 
i^ not within the limits of human capacity or reason ; but this 
rule is not to be extended and must not be confused with 
matters of mere hardship or considerations possible though 
difficult or burdensome of performance. 

Story on Contracts, § 586. 

To excuse a performance on this ground the rule requires 
that the act which is to be done must be absolutely impossible 
in the nature of things. The law takes no notice of an agree- 
ment which in its very nature is at all times impossible of 
performance. Such a contract is a nullity, and in the eyes 
of the law is as though never made. 



IMPOSSIBLE CONTRACTS 


254 

§ 208. Impossibility wben No Legal Ezcnse. 

A positive unconditional contract to do something which 
is possible in the nature of things, and not contrary to law, 
and only impossible by some peculiar circumstance of that 
particular case, is binding, although the impossibility was not 
known when the contract was entered into and is of such a 
nature that a present compliance therewith is actually impos- 
sible. Here the party by his own contract creates a burden 
upon himself and must make it good, though inevitable neces- 
sity prevents, because he might have provided against such 
contingency. Hence a contract to perform at a certain place 
on a certain date is binding, although at the time there was 
no possible way of getting to the place because of flood or 
other unsurmountable condition of travel or conveyance. 
For the same reason a contract between A and B that C will 
sing or act on certain dates is binding, although C refuses 
to do so and there is no possible way for A to compel him. 

Mounsey v. Drake, 10 Johns, 27. 

School Dist No. i v. Dauchy, 25 Cbna, 530. 

A man may by apt words bind himself that it shall rain 
to-morrow or that he will pay damages ; he may agree to do 
anything which is in the nature of things possible, and will 
be bound if they fail to happen. The law does not protect 
one against his own lack of sense or judgment. He who 
contracts to deliver to another a certain thing on a certain 
day must do so; it is no excuse that a flood intervenes, that 
the transportation company fails to operate its conveyances, 
the plant burns down where the thing is being made, or some- 
one steals it before the promisor has a chance to get it into 
his possession. True, the performance now becomes impos- 



IMPOSSIBILITY OF PERFORMANCE 255 

sible, so far as the present is concerned, but it was not an im- 
possibility in the nature of things when undertaken, and the 
contract stands in binding force. The party who is to re- 
ceive the benefit must not do anything himself to make 
performance impossible, for then he could not complain of 
his own wrong. 

Story on Contracts, § 588. 

§ 209. Lapossibility when No Excuse. 

The mere fact that the performance of a contract has been 
rendered more burdensome than originally contemplated, is 
more expensive or even a severe hardship, does not constitute 
an impossibilily and affords no legal excuse for non-perform- 
ance. For under a positive contract to do a thing not in 
itself unlawful, the contractor must carry out its terms or 
pay damages for not doing so, although in consequence of 
unforeseen accident the performance has become unexpectedly 
burdensome, dangerous or even impossible. This rule is only 
applicable when the contract is positive and absolute and not 
subject to any condition either express or implied. 

Tobias v. Lissberger, 105 N. Y., 404. 

Balcer v. Johnson, 42 N. Y., 126. 

Walker v. Tucker, 70 HI., 527. 

St. Joseph County v. South Bend, etc., EL Co., 118 Ind., 68. 

The law never requires impossibilities, but when parties 
choose to make contracts which become subsequently impos- 
sible though possible at the time made in the nature of things, 
the law will force them to keep to such contract or answer in 
damages for its breach. The law does not and cannot pro- 



256 IMPLIED CONDITIONS 

vide against a man’s recklessness or foolishness when he is 
legally able to contract and safeguard his own interests. 

Hare on Contracts, 656. 

Harriman on Contracts, § 264 et seq. 


Where A entered into an agreement to furnish horses to 
the United States Government, and before the time of de- 
livery the bureau of cavalry made new rules as to the inspec- 
tion and acceptance of horses, and A, claiming that the new 
rules made it impossible for him to secure horses up to the 
requirement of the new rules, abandoned his contract, making 
no effort to fulfill it, but brought an action against the United 
States for the profits he might have made, it was held he 
could not recover, as the impossibility of performance was 
a mere inconvenience, not such as to excuse his fulfilling his 
contract, or to allow him to sue for profits he might have 
made. 


Smoot’s case, 15 Wall, 36. 

§ 210. Implied Conditions. Ferformance Uade Impossible by 
Law. 

A condition is implied in every contract that if a change 
iir the law or some action by or under the authority of the 
government subsequently renders the performance of the 
contract according to its terms unlawful or impossible, the 
promisor shall be discharged from his obligation. The act 
of law discharging the contract may be legislative, executive 
or judicial. 


Harriman on Contracts (zd Ed.), § 266. 



IMPLIED CONDITIONS 


257 


It would be manifestly unfair to hold one to the terms of 
a contract the performance of which is subsequently made 
impossible by a legislative act. Property condemned for use 
as a theater or hall would release a lessee who hired it for 
such distinct and stated purpose. A manager would be re- 
leased, from his contract to give a play or exhibition if the 
law prohibited the giving of such entertainment. What is 
legally made impossible of performance cannot be compelled, 
as to insist thereon would be the authorization of an illegal 
act. 

Cordes v. Miller, 39 Mich., 581. 

Hughes V. Wamsutta Mills, ii Allen, soi. 

People V. Globe, etc., Co., 91 N. Y., 174, 

When a contract is terminated by the act of the law, the 
party is entitled to be paid for his services or outlay to that 
date only, and has no claim for damages against the person 
employing him beyond that time. 

Pollard V. Schaffer, i Dallas, 210. 

Ball V. Liney, 44 Barb., SoS- 

People V. Globe Mut Life Ins. Co., 91 N. Y., 174. 

§ 211. Application of the Buie. 

The application of this species of implied condition, as af- 
fecting the existing contract between the parties, depends 
entirely on the construction of the particular contract. In 
Hughes V. Wamsutta Mills, ii Allen 201, the defendants 
admitted that work was done by the plaintiff for them to the 
amount alleged, but proved that he was to give two weeks* 
notice before leaving, or not claim any wages due; that he 
gave no notice at all before leaving, but was arrested, tried 
and convicted, and was in jail under sentence; and that the 



258 


IMPLIED CONDITIONS 


injury to the defendants from the want of notice was more 
than the amount claimed for his work, “ The interpretation 
which he (the defendant’s counsel) seeks to put on the stipu- 
lation that the plaintiff was to receive no wages if he left the 
defendant’s service without giving two weeks’ previous notice 
of his intention so to do, is inconsistent with the terms of 
the stipulation and too narrow to be a fair or reasonable 
exposition of the intention of the parties. The stipulation 
clearly had reference only to a voluntary abandonment of 
the defendant’s employment, and not one caused vi majore, 
whether by the visitation of God or other controlling cir- 
cumstances. Clearly the abandonment must have been such 
that the plaintiff could have foreseen it ; he could give notice 
only of such departure as he could anticipate, and the stipu- 
lation that he was to have the privilege of leaving after giv- 
ing two weeks’ notice without forfeiting his wages, implied 
that the forfeiture was to take place only when it could be 
within his power to give the requisite notice. It certainly 
cannot be contended that the stipulation was absolute; that 
he was to receive no wages in case of leaving without notice, 
whatever may have been the cause of his abandonment of 
the service. It is settled that absence from sickness or other 
visitation of God would not work a forfeiture of wages 
under such a contract. Pari ratione, any abandonment caused 
by unforeseen circumstances or events, and which at the time 
of their occurrence the person employed could not control 
or prevent from operating to terminate his employment, 
ought not to operate to cause a forfeiture of wages. It may 
be said that in the case at bar the commission of the offense 
for which the plaintiff was arrested was his voluntary act, 
and that the consequences that followed after it and led to 
his compulsory departure from the defendant’s service are. 



IMPLIED CONDITIONS 


259 


therefore, to be regarded as bringing this case within the 
category of a voluntary abandonment of his empIo3mient. 
But the difficulty with this argument is that it confounds 
remote with proximate causes. The same argument might 
be used in case of inability to continue in service occasioned 
by sickness or severe bodily injury. It might be shown in 
such a case that some voluntary act of imprudence or care- 
lessness led directly to the physical consequences which dis- 
abled a party from continuing his service under a contract. 
The true and reasonable rule to be applied to such contracts 
is this : To work a forfeiture of wages, the abandomnent of 
the employer's service must be the direct, voluntary act, or 
the natural and necessary consequence of some voluntary 
act of the person employed, or the result of some act com- 
mitted by him with a design to terminate the contract or 
employment, or render its further prosecution impossible. But 
a forfeiture of wages is not incurred where the abandon- 
ment is immediately caused by acts or occurrences not fore- 
seen or anticipated, over which the person employed had 
no control and the natural and necessary consequence of 
which was not to cause the termination of the emplo3nment 
of a party under a contract for services or labor. It results 
from these views that the plaintiff has not forfeited 
his wages by any breach of his contract, and that he is en- 
titled to recover the full amount due to him for services, 
without any deduction for damages alleged to have been 
suffered by the defendants in consequence of his sudden de- 
parture from their employment.” 

§ 212. Chaise of Law Subsequent to ISaking of Contract. 

While the general rule is certain, its application is nar- 
row and only within the strict confines of its intendment. 



26 o 


LAW AFFECTING LEASE 


A change of requirements in the building laws of a State 
may make it impossible for a building to be continued in 
its use as a theater, the same being structurally incapable 
of required changes. Here, in respect of the lessee and his 
covenant to pay rent, arises the question of what he can de- 
mand under the lease : Do the terms of this agreement clearly 
bring him within the rule affording relief because perform- 
ance is made impossible by the change in law, or merely 
deprive him of a desired use of the premises? It becomes 
important to ascertain whether performance of the contract 
is not legally possible or merely less advantageously so to him. 
The lessening of a benefit, so long as performance is not pre- 
vented by the law, does not make the contract legally im- 
possible. The act of law must make an entire performance 
impossible. 

§ 213. Change of law as Affecting a Lease. 

Under a lease of real estate used by the lessee as a theater, 
it was held no defense to the covenant to pay rent ; that after 
the lessee entered into occupancy of the premises described 
in the lease a change of statute law in respect of fire protec- 
tion prevented the occupancy of the premises for such pur- 
pose either entirely or until certain changes in the structural 
condition of the building were made, and the lessor, who 
has not covenanted so to do, does not commit any breach of 
the covenant of quiet enjo3mient by failing to furnish ad- 
ditional means of egress or other structural changes as 
required by a public official acting under the provisions of 
the new law. The lessor, to be required to make such changes 
or abate the rental, must have covenanted that the building 
be fitted and continued in a suitable condition for use as a 



CHANGE OF LAW 


261 


theater, and to constitute a “ constructive eviction which while 
it continues suspends the payment of rent, it must affirma- 
tively appear that by his intentional and wrongful act the 
landlord has deprived the tenant of the beneficial use and 
enjojment of the whole or a part of the leasehold.” 

In a lease which does not contain a covenant that it shall 
be fitted and continued as a theater by the landlord, there is 
no implied warranty that the building leased was fitted for 
occupation as a theater or for any particular use, and the 
lessee is at liberty to occupy the estate for the pursuit of any 
lawful business. When no covenant appears in the lease 
requiring the landlord to provide the facilities of entrance 
or exit required by law or to make such structural changes 
as may be required by laws «iacted after the giviisg of a 
lease, he is under no obligation to make such alterations as 
may be required to make the building safe for the uses of 
those attending theatrical performances therein. 

Taylor v. Fiimigan, 189 Mass., 568. 

§ 214. Sole Power in Official to Determine Fitness: Necessity of 
Appeal from Official’s Decision. 

Where sole power vests in one official or department to 
determine as to the structural fitness of a building and its 
appliances for use as a theater or place of amusement as a 
condition precedent to the granting a license for the same, 
the license cannot be demanded or compelled until such officer 
or department has favorably passed thereon. 

See ante, § 39, Licenses. 


Legislation of this sort is both unwise and unfair and 



262 


ACT OF GOD 


should provide for an appeal on such matters to the courts, 
for here is involved a question of greater importance than 
mere structural and building requirements, for the judgment 
or lack thereof of one man can deprive the owner of his right 
to occupy his property for its intended uses. It is really in 
effect the right to condemn property without providing for 
either trial or damages. The granting of a license to give theat- 
rical entertainments, which is a matter of discretion, can more 
properly be left to the final determination of one official, but 
even here a grave wrong can be done where no appeal is 
allowed. To combine the power of granting both licenses 
in one official, offers every opportunity of an exercise of 
poor judgment or bad faith with no remedy whatever for the 
owner or manager. 

See ante, § 32, Licenses. 

§ 818. Act of God as an Excuse of Pexfonuanoe. 

This doctrine is well defined in the case of School District 
No. I V. Dauchy, 25 Conn., 530. In that case the court said : 

We believe the law is well settled that if a person promises 
absolutely, without exception or qualification, that a certain 
thing shall be done by a given time, or that a certain event 
shall take place, and that the thing to be done or the event 
is neither impossible nor unlawful at the time of the promise, 
he is bound by his promise, unless the performance, before 
that time, becomes unlawful. Any seeming departure from 
this principle of law (and there are some instances that at 
first view appear to be of that character) will be found, we 
think, to grow out of the mode of construing the contract 
or afiSxing a condition, raised by implication from the nature 
of the subject, or from the situation of the parties, rather 



ACT OF GOD 


263 


than from a denial of the principle itself. Such, for instance, 
as a promise to marry, where it must be presumed that the 
parties agree to intermarry if they shall be alive, or a promise 
to deliver a certain horse at a future time, and before the 
day arrives the horse dies, in which case the parties are held 
to have contracted in view of that contingency. In these and 
like cases the court will hold that the parties did not under- 
stand that the thing was to be done, unless the life of the 
persons, or of the horse, was continued, so that there would 
be an object and an interest in the execution of the contract 
These and a few other exceptions of a similar character are 
to be found in the books, but they are not so much excep- 
tions after all as cases presumed or inferred, though not 
expressed, from their peculiar situation or from the subject 
matter itself. It is said, however, that there is one real ex- 
ception to the rule, viz., where the act of God intervenes to 
defeat the performance of the contract ; and that is the excep- 
tion on which the defendant relies in this case. The defend- 
ant insists that where the thing contracted to be done be- 
comes impossible by the act of God, the contract is dis- 
charged. This is altogether a mistake. The cases show no 
such exception, though there is some semblance of it in a 
single case which we will mention. The act of God will 
excuse the not doing of a thing where the law has created 
the duty, but never where it is created by the positive and 
absolute contract of the party. The reason of this distinc- 
tion is obvious. The law never creates or imposes upon any- 
one a duty to perform what God forbids, or what He renders 
impossible of performance, but it allows people to enter into 
contracts as they please, provided they do not violate the 
law. It is further said that the books declare that where 
the condition of a bond becomes impossible by the act of 



264 


ACT OF GOD 


God, or is prohibited by the law, the condition becomes void, 
and the bond is absolute; or if it be a subsequent condition 
for the divesting of title, that the condition becomes void, 
and the title remains good. Whether even this is true, with- 
out some qualification, we are not quite confident, nor will 
we stop to consider; but if so, still, the doctrine of that class 
of cases does not reach the present one, as the same books 
abundantly declare. In Platt on Covenants, p. 582, it is said 
that the rule laid down in Paradine v. Ja3me, Alle3na, 27, has 
often been recognized in courts as a sound one, viz., where 
a party by his own contract creates a duty or charge upon 
himself, he is bound to make it good, if he may, notwith- 
standing any accident by inevitable necessity, because he 
might have provided against it by his contract; therefore, if 
a lessee covenants to repair, the circumstance of the premises 
being consumed by lightning, or thrown down by an inevi- 
table flood of water, or an irresistible tornado, will not effect 
his discharge. But where the law creates a duty or charge, 
and the party is disabled to perform it without any default 
in him, and hath no remedy over, there the law will excuse 
him, as in the case of waste where the house is destroyed by 
a tempest In some cases where the act of God renders per- 
formance absolutely impossible, the covenants shall be dis- 
charged quia impotentia excusat legem; as if a lessee cove- 
nants to leave a wood in as good plight as the wood was at 
the time of the lease, and afterward the trees are blown down 
by tempest, or if one covenants to serve another for seven 
years, and he dies before the expiration of the seven years, 
the covenant is discharged because the act of God defeats 
the possibility of performance. I should rather say, because 
it is implied that the thing shall exist or life be prolonged, or 
else the contract of course cannot be broken. . . . The 



UNAVOIDABLE CASUALTY 


265 


court must fully recognize the rule that the act of God will 
not operate to discharge a promise which is absolute and 
unqualified in its terms, though the contingen<y is beyond 
the power of the contractor.” 

Unavoidable casualty is limited to damage or destruction 
arising from supervening and uncontrollable force dr acci- 
dent. Events or accidents which human prudence, foresight 
and sagacity cannot prevent are unavoidable casualties. 


Welles V. Castles, 3 Gray, 323. 




DEATH OR DISABILITY AS EXCUSE FOR NON- 


PERFORMANCE 




DEATH OR DISABILITY 


269 


CHAPTER XIV 

§ 216. Death ox Disability as Affeotii^ an Agreement. 

Contracts for personal services are subject to the implied 
condition that the person shall be able at the time appointed 
to perform them, and if he dies, or without fault on the part 
of the covenantor becomes disabled, the obligation to per- 
form is extinguished. This principle applies to all contracts 
which though in terms are unqualified and absolute, where 
from the nature and wording of the contract it cannot be 
carried into effect if some specific thing or person ceases to 
exist or is disabled by disease or sickness, the parties will be 
presumed to contemplate the possibility of such an event and 
to have intended that if the contingency occurred the obliga- 
tion should be dissolved. Wheither the impossibility arises 
from the death or illness of the person by whom the agree- 
ment is to be performed or the destruction of the place where 
or means through which it can be fulfilled, there is equally 
a breach of an implied condition and the contract cannot be 
enforced. 


Robinson v. Davison, L. R. 6 Exchange, 269. 
Thomas v. Knowles, 128 Mass., 22. 

Field V. Brackett, 56 Maine, 121. 

Dexter v. Norton, 47 N. Y., 62. 

Hare on Contracts, § 647. 

Poussard v. Spiers, i L. R Q. B. Div., 41 a 
Harrison v. Conlan, 10 Allen, 85. 

Spalding v. Rosa, 71 N. Y., 40. 

Gould y. Murcb, 70 Maine, 288. 

Walker v. Tucker, 70 III, 527. 



270 


DISABILITY OF PERFORMER 


The Tornado, 108 U. S., 342. 

Lord V. Wheeler, i Gray, 282. 

Nicol V. Fitch, 115 Mich., 15. 

Harrington v. Fall River, etc., Co., 119 Mass., 82. 

§ 217. Tllnegg as a lenniiLatioii of Contract. 

Absence from business on account of illness affords legal 
grounds under some circumstances for discharg’e, and where 
an actor absents himself from rehearsals because of sickness 
it is sufficient ground to allow the manager to terminate the 
contract, and the actor cannot recover for salary accruing 
after the dismissal. If at the time the services of the artist 
are required he is in such a state of physical disability as to 
render his attendance impossible, and on recovery he at once 
seeks his employer and offers to continue his service for the 
remainder of the term of the emplo3mient, his employer 
would not be obligated to accept such offer if his services 
were so essential and material to the success of his business 
as to make an interference therewith when he was absent, 
but otherwise when the disability is of short duration and 
the services not absolutely essential. 

So where an actor is unable to attend rehearsals, it is suf- 
ficient ground, if such absence interferes with the manager’s 
business, for a termination of a contract for such service. To 
hold otherwise and to regard the employer as under a con- 
tinued obligation to perform his part, and to receive the 
services of the employee, when the latter has recovered from 
his sickness or disability, would thrust into every contract of 
empIo3rment requiring the personal services of skilled artists, 
artisans and mechanics in the varied enterprises and occupa- 
tions of mankind an element of uncertainty which would 
lead to serious confusion and to uncertainty of duration. If, 
under such circumstances, the employer is compelled to specu- 



SICKNESS 


271 


late upon the chances of the early recovery of the employee, it 
can be readily seen that, if the enterprise is to be continued, 
he can only contract for like services at the peril of being re- 
quired to pay both the former employee and those whose 
services have become necessary, because of the inability of the 
former employee to continue. To hold that by the sickness 
of the employee, both contracting parties are discharged from 
further performance of the contract of employment, imposes 
no greater hardship upon such employee than is suifered by 
any person who is prevented from continuing his earnings 
by means of the employment of his services, since he is not 
required to forfeit any compensation for the services actually 
performed. 

Prior V. Flagler, 13 Misc. (N. Y.), 115. 

§ 218. Permanent and Temporary Sickness Contrasted. 

A distinction should, however, be made between permanent 
and temporary disability arising from causes beyond the con- 
trol of the employee. In the case of a mere temporary dis- 
ability, the effect thereof would not in every case be to work 
a dissolution of the contract of employment. 

Fisher v. Monroe, 16 Daly (N. Y.), 461. 

Wharton on Contracts, § 332. 

Hubbard v. Belden, 27 Vt, 645. 

In such cases, if the temporary disability does not in any 
substantial manner prevent performance on the part of the 
employee the emplo 3 mient must be regarded as continuing. 

It is a question in each particular case as to whether or 
not the presence of the employee in the employer's service 
during the continuance of the disability was material and 
essential to the prosperity of the enterprise in which the serv- 



272 


CAPABILITY 


ices were required, and if such presence was not so material 
and essential the employer is not relieved from his obligation 
to accept the services of the employee when the latter, on his 
recovery, offers to continue. 

Fisher v. Monroe, 16 Daly, 461. 

Ryan v. Dayton, 25 Conn., 191. 

§ 219. Implied Condition of Capability. 

Under the general rule an artist, who agrees to per- 
form on a day certain, but is sick and unable to perform, 
although his contract is explicit and has no conditions, is 
excused from performance because an agreement to perform 
a personal act is considered as made with an implied con- 
dition that the party shall be alive or capable of performing 
the contract. 

Robinson v. Davison, L. R. 6 Exch., 269. 

Stewart v. Loring, s Allen, 306. 

Spalding v. Rosa, 71 N. Y., 40. 

In Spalding v. Rosa, 71 N. Y- 40, defendants contracted 
with plaintiff, proprietor of a theater, to furnish the Wachtel 
Opera Troupe to give a number of performances in their thea- 
ter. Wachtel, after whom the troupe was named, was the 
director of the company and its star attraction. Wachtel 
was taken sick and became unable to sing, and as a resxilt the 
defendants did not furnish the attraction. In an action for 
a breach of this contract it was held that Wachtel’s appear- 
ance was the essence or an important element in the agree- 
ment ; that plaintiff would not have been obliged to accept the 
company without him and that his inability to sing consti- 
tuted a legal excuse for the non-performance of the contract. 



273 


PERSON-^ SERVICES 
§ 220. Semces Knst Be Personal in Batnre. 

The rule, however, only applies where the services are 
so personal and of such a character that no one else can 
perform them. The personality of the party is the determin- 
ing factor, for if another can be substituted and fulfill the 
contract just as well, then death or sickness affords no excuse. 
The principle is that where a contract creates between the 
parties strictly a personal relation the death of either party 
dissolves that relation. 

Howe Sewing Machine Co. v. Rosensteel, 24 Fed, 583. 

§ 221. ITeoessity of Botice. 

The artist is bound to give notice of his illness to the 
manager, which must be reasonable in accordance with the 
nature of the services required under the contract or the par- 
ticular circumstances of the individual case, and must continue 
absent only so long as the disability lasts. 


Corsi V. Maretzek, 4 E. D. Smith (N. Y.), i. 

Harrington t. Fall .River, etc., Co., 119 Mass., 83. 

Naylor v. Fall River, etc., Co., 118 Mass., 317. 

§ 222. Continned Absence 'When No Excuse. 

If one leaves his work willingly, without sufficient cause 
to justify or excuse his conduct, under such circumstances 
and in such manner that his employer, considering the nature 
of the work and its relation to the other operations of the 
employer’s business might fairly and reasotiably regard his 
leaving and continued absence as an abandonment of his work, 
rendering it necessary to procure another person to supply 



NOTICE OF DISABILITY 


274 

the place, it is a breach of the agreement and a forfeiture 
according to its implied terms, although there may have been 
an intention on the part of the employee to be absent only 
temporarily and to return to his work at his own convenience. 

Naylor v. Fall River, etc., Co., 118 Mass., 317. 

Partington v. Wamsutta Mills, no Mass., 467. 

“ But if the employee is kept from his work by sickness and 
gave reasonable notice thereof to the employer, and was absent 
only so long as he was so disabled, his absence was not willful 
or intentional, and did not forfeit his right to his wages, 
either under the contract of the parties or by the general rules 
of law.” 


Harrington v. Fall River, etc., Co., 119 Mass., 8a. 



ILLEGAL AND IMPOSSIBLE CONTRACTS 




ILLEGAL CONTRACTS 


277 


CHAPTER XV 

§ 223. Contracts, Their Nature and Effect. 

The law will not tolerate an agreement which is in its 
nature illegal or immoral. Such contracts are void as against 
the rules of public policy. The law refuses relief to either 
party to such an agreement and leaves them where it finds 
them, neither lending its aid to an enforcement of rights 
thereunder nor affording any protection on account of money 
paid or property transferred in part performance thereof. 
This rule is certain and far reaching, affording no relief what- 
ever. Ex dolo malo non oritur actio. Any agreement refer- 
ring to matter illegal at common law or by statute is not 
binding. Public policy does not tolerate a contract the sub- 
ject matter whereof is prohibited by law. In the leading case 
of Holman v. Johnson, i Cowp. 341, Lord Mansfield gives 
the reason for this universally accepted rule, thus : “ The ob- 
jection that a contract is immoral or illegal as between plaintiff 
and defendant, sounds at all times very ill in the mouth of the 
defendant. It is not for his sake, however, that the objection 
is ever allowed; but it is founded in general principles of 
policy, which the defendant has the advantage of, contrary 
to the real justice, as between him and the plaintiff, by acci- 
dent, if I may so say. The principle of public policy is this: 
ex dolo malo non oritur actio. No court will lend its aid to 
a man who founds his cause of action upon an immoral or 
illegal act. If, from the plaintiff’s own stating or otherwise, 
the cause of action appears to arise ex turpi causa, or the 



ILLEGAL CONTRACTS 


278 

transgression of a positive law of this country there the 
court says he has no right to be assisted. It is upon that 
ground the court goes ; not for the sake of the defendant, but 
because it will not lend its aid to such a plaintiff. So if 
the plaintiff and defendant were to change sides, and the 
defendant were to bring his action against the plaintiff, the 
latter would then have the advantage of it; for when both 
are equally in fault, potior est conditio defendantis/" 

“ It is upon this principle, that a bond, note or other execu- 
tory contract, made and delivered upon the Lord’s day, is 
incapable of being enforced, or, as is sometimes said, abso- 
lutely void, as between the parties.” 

Towle V. Larrabee, 26 Maine, 464. 

Pope V. Linn, 50 Maine, 83. 

Allen V. Deming, 14 N. H., 133. 

§ 224. Illegal Contracts Cannot Be Batified. 

“And it follows that as between them it is incapable of 
being confirmed or ratified; for, in suing upon the original 
contract after its ratification by the defendant, it would still 
be necessary for the plaintiff in proving his case to show his 
own illegal act in making the contract at first 
“ Upon the same principle, if the contract has been executed 
by the illegal act of both parties on the Lord’s day, the law 
will not assist either to avoid the effect of his own unlawful 
act Thus if the amount of a preexisting debt has been paid 
and received on Sunday, the law will neither assist the debtor 
to recover back the money, nor the creditor while retaining 
the amount so paid, to treat the payment as a nullity, and 
enforce payment over again.” 

Cranson v. Goss, 107 Mass., 439. 

See post, § 229. 



IMMORAL PERFORMANCES 


279 


§ 225. Immoral Performances. 

Hence any contract concerning the giving or taking part 
in any play of an immoral nature, the showing or advance- 
ment of any immoral thing, the rendering of services for 
matters prohibited on the Lord’s day, as they are not prope/ 
subjects for legal contract, can neither be enforced nor any 
protection given to anyone thereunder. A payment of money 
on Sunday being illegal, such can be again demanded, as 
though no pa3nnent had been made. For a like reason com- 
pensation for services performed on Sunday cannot be the 
subject of court proceedings. While such a rule apparently 
offers chances for dishonorable dealing, yet its reason is 
founded in the abhorrence law has for any transaction bearing 
the taint of illegality. 

Stewart v. Thayer^ 168 Mass., 519. 

Jameson v. Carpenter, 68 N. H., 62. 

Cohn V. Heimbauch, 86 Wis., 176. 

Wheeler v. Russell, 17 Mass., 258. 

Atwood V. Fisk, loi Mass., 363. 

Duval V. Wellman, 124 N. Y., 156. 

Irvin V. Irvin, 169 Pa, St, 529. 

Hope V. Linden Park, etc., Assoc., 58, N. J. L., 627. 

A lease of a hall for a lecture which was to attack Chris- 
tianity was held void, as the subject matter was illegal as 
contravening the laws of public policy. 

Pringle v. Napenee, 43 U. C. Q. B., 285. 

§ 226. Sunday Contracts. 

In Stewart v. Thayer (168 Mass. 519) the plaintiff sought 
to recover for a balance due him in pursuance of a contract 



28 o contracts made ON SUNDAY 

made with the defendant, by the terms of which the plaintiff 
was to receive for the services of himself and band during 
certain months, $24.00 for a week of seven days for each 
man, for the leader double pay, and for the soloist, when 
there was one, $10.00. The plaintiff performed his part of 
the contract, playing with the band at a seaside resort of 
which the defendant was the proprietor. On Sundays the 
afternoon concerts began from half-past two to half-past three, 
and there were also concerts in the evening. The defense was 
that, as some of the work and labor contracted for was to be 
done on the Lord’s day it was forbidden by the statute which 
prohibited any game, sport, play or public diversion, except 
concerts of sacred music upon the Lord’s day. 

The court said: “ We have no doubt that the contract was 
an entire one. If a person makes a contract in violation of 
the statutes for the observance of the Lord’s day, he cannot 
maintain an action thereon. Hazard v. Day, 14 Allen, 487, 
and Myers v. Memrath, loi Mass. 366. Such a contract is 
absolutely void and cannot be ratified. Day v. McAllister, 
15 Gray 433, Stevens v. Wood, 127 Mass. 123. The prin- 
cipal ground on which the plaintiff contends that he is entitled 
to recover is that the concert might have been licensed, and 
that, as the plaintiff was ignorant that the defendant had not 
procured a license, he is entitled to recover under the princi- 
ple laid down in Emery v. Kemptin, 2 Gray 257, and Roys v. 
Johnson, 7 Gray 162, We are of opinion, however, that under 
the Pub. Statutes c 98 § § i, 2, there was no authority in any 
person or board to license a concert on the Lord’s day, except 
a concert of sacred music on the evening of that day ; and that 
as the plaintiff agreed to give concerts on that day, and not 
merely on the evening thereof, and actually did give them, he 
is precluded from recovery.” 



ILLEGAL CONTRACTS 


281 


§ 227. Wliat Coostitiites nieg^alily. 

The contract may be illegal because it contravenes the prin- 
ciples of the common law or the special requisites of a statute. 
The former illegality exists whenever the consideration is 
foiuided upon a transaction which violates public policy or 
morality; the illegality created by statute exists when the act 
is either expressly prohibited or when prohibition is implied 
from the nature and objects of the statute. 

Stoiy on Contracts, § 582. 

§ 228. Subject Matter of Contract Governs Application of Buie. 

That the agreement is in legal form and shows no element 
of illegality on its face makes no difference, for the substance, 
not the form, is considered, and oral evidence is admissible 
to show an illegal purpose. The intent to do a wrongful thing, 
the agreement to accomplish an immoral purpose, is none the 
less the actual subject matter of the agreement though care- 
fully concealed in a written contract apparently proper. The 
teal intent of the parties governs, and the rules of evidence 
give every right to establish it. A contract made on Sunday, 
even if otherwise dated, is against the law of public policy 
and is void although for a moral purpose. Here nothing in 
the contract itself shows an illegality, yet the fact of its 
being made on Sunday can be established, and the contract is 
left where the court finds it. 

Day V. McAllister, 15 Gray, 433. 

Cranson r. Goss, 107 Mass., 439. 

Therefore a contract must be free from any su^icion of 
illegality, for if made in opposition to the law or for a con- 



282 


ILLEGAL CONTRACTS 


sideration prohibited or to do or perform some immoral or 
improper thing, it is against public policy and void. The 
most important consideration under this head in respect of 
theatrical agreements is on account of contracts either made or 
performed on Sunday in States where all business matters are 
illegal if transacted on the Lord’s day. A contract being ille- 
gal will not support an action. It has no legal force or obli- 
gation. No repudiation by a formal act is necessary to render 
it inoperative. Such contract is incapable of ratification. A 
party to such contract cannot ratify it; the validity of the sub- 
ject matter does not depend in any degree upon the maker’s 
choice. 


Day V. McAllister, 15 Gray, 433. 
Stebbins v. Peck, 8 Gray, 553. 


§ 229. Sunday and Other Illegal Contracts. 

While some States now tolerate the doing of certain things 
on Sunday, by far the greater number are most strict in this 
respect and allow but small latitude for Sunday transactions. 

Where the Lord’s day rule prevails any contract made on 
Sunday is void. So also is a payment of an entirely proper 
obligation considered as no satisfaction at all if made on this 
day, and work and services rendered cannot be collected for. 
This rule, though harsh in its application, is well settled. To 
the same degree the principle applies to all contracts con- 
_^ming the employment of minors tmder an age prohibited 
by statute, the traffic in or use of prohibited articles, the giving 
of immoral plays or display of obscene pictures, awarding 
prizes in the nature of a lottery, and all dealing in such matters 



FAILURE TO PROCURE LICENSE 283 

as public policy or statute have decided violate what has been 
determined as legal. The rule keeps pace with the things 
prohibited by statutory enactment. 

Texas, etc., Ry. Co. v. Putnam, 63 S. W., 910. 

Birkett v. Qiatterton, 13 R. L, 299. 

Cranson v. Goss, 107 Mass., 439. 

Under a statute which prohibits the giving of amusements 
on Sunday or prevents labor on that day, all contracts con- 
cerning the same are illegal and void. This applies to agree- 
ments with actors for dramatic or prohibited services on 
Sunday. Statutes prohibiting Sunday performances are con- 
stitutional, as the legislature is the sole and final judge of 
what is to be prohibited with a view to maintaining the public 
good and preventing the obstruction of religious worship and 
the bringing of the religious institutions of the people into 
contempt, and it is equally against the law under such stat- 
utes if a compulsory admission is charged to a camp meeting 
on Sunday. 

Quarles v. State, 55 Ark., 10. 

Birkett v. Chatterton, 13 R. I., 299. 

Lindenmuller v. People, 21 How. Pr. (N. Y.), 156. 

Lindenmuller v. People, 33 Barb., 548. 

Commonwealth v. Weidner (Pa. Com. Fleas), 37 Alb., L. 

J-, 148- 

§ 230. Failure to Proouie license. 

If statute requires that a license must be obtained for the 
giving of a theatrical performance or entertainment an agree- 
ment concerning such, where no license has been obtained, is 
necessarily illegal and void. Here the license is required; 



284 FAILURE TO PROCURE LICENSE 


without it the doing of the act requiring such permission is 
prohibited and illegal. 


Harding v. Hagar, 6o Me., 340. 

Spurgeon v. McElwain, 6 Ohio, 442. 

Stewartson v. Lothrop, 12 Gray, 52. 

See ante. Licenses. 

§ 231. Extent of Applioation of Enle. 

The application of this principle of law is far reaching and 
covers all matters connected with the illegal consideration. 
The unlicensed matter being an illegal transaction, it natu- 
rally follows that the use of a building in which to give it and 
the contracts made for the employment of people to take part 
therein are within the prohibition. This can be followed to 
even greater extent, for if the subject matter is clearly against 
public policy or immoral, every contract or transaction into 
which it enters is likewise void. The hardship of this rule is 
apparent, as it leaves an evildoer often in a position to profit 
by his own wrong. He may have received the benefits and 
can now avoid all responsibility of payment therefor, because 
the law gives no redress against him. Otherwise the court 
would be obliged to adjudicate and recognize a wrong to 
arrive at popular justice. This illegality may arise because 
some special statute is violated or its conditions not strictly 
adhered to. Often it requires careful consideration and inves- 
tigation to avoid such technical violation, but so far reaching 
is this rule of illegality and so strict of application, that no 
pains should be spared to ascertain the requirements of the 
particular jurisdiction as to the amusement enterprise to be 
undertaken. The Sunday laws, employment of minors and 
licenses in general are local regfulations, varying to a great 



FAILURE TO PROCURE LICENSE 285 

degree in the different States and should be carefully con- 
sidered in each instance. To violate their intendment makes 
all transactions which are performed thereunder illegal, with 
sometimes far-reaching and serious consequences, and igno- 
rance of the law affords no excuse. Statutes relating to Sunday 
observance are generally held to be remedial and therefore to 
be construed liberally. 

Lindenmuller v. People, 33 Barb., 548. 

According to the doctrine of Roys v. Johnson, 7 Gray, i6e, 
where the defendants without a license set up theatrical exhi- 
bitions in which plaintiff was employed as an actor, it was 
held that unless the plaintiff knew they had no license he was 
in no legal fault and could recover for his services as “ where 
a defendant is the only person who has violated the law, he 
cannot be allowed to take advantage of his own wrong to de- 
feat the rights of a plaintiff who is innocent.” 

The doctrine of this case demands careful consideration as 
providing a remedy where the artist is ignorant of the lack 
of an enabling license in the management by whom he is 
employed. The case has been followed and approved in many 
Massachusetts decisions. 

Stewart v. Thayer, 166 Mass., 519, ante, § 226. 

In line of the foregoing principles and decisions can be 
considered the contracts and business transacted by a corpo- 
ration in a State other than the one in which it is organized, 
where it has failed to perform the duties demanded of foreign 
corporations as a condition precedent to the carrying on of 
its business. Such failure, in many States, debars the cor- 
poration from any standing and makes its acts void or illegal, 
to the same intent and purpose as though its transactions were 



286 


FOREIGN CORPORATIONS 


in their nature inunoijil or against public policy. A State may 
deny the right to foreign corporations to do business within 
its limits, or may allow them to upon certain restricted terms. 

In this matter the State is the sole judge, for a foreign cor- 
poration is not a citizen entitled to all privileges and immuni- 
ties of citizens in the several States under Art. IV. § 2, of 
the Constitution of the United States. 

See ante, § 205. 

Liverpool Ins. Co. v. Mass., 10 Wall, $66. 

Attorney General v. Bay State Co., 99 Mass., 148. 

Reyer v. Odd Fellows’ Assoc., 157 Mass., 367. 

Tucker’s Manual of Business Corporations (2d Ed.), 1-8. 



THE CONTRACT BETWEEN MANAGER AND 

ARTIST 

1. PARTIES AND DATE 

2 . SALARY 

3. RESTRICTIONS AS TO PLAYING ELSEWHERE 

4. PERFORMANCES 

5. CLOSE OF SEASON 

6. PERFORMER’S DUTIES— INCOMPETENCY 

7. COSTUMES 

8. RULES AS TO TRANSPORTATION 




BETWEEN MANAGER AND ARTIST 289 


CHAPTER XVr 

§ 232. Contraots Between Manager and Artist. 

Printed forms of “house” and “engagonent” contracts 
are quite generally used, and as many questions of construc- 
tion continually arise thereunder, an explanation is given of 
certain clauses with suggestions as to their use which can 
be profitably followed. The courts, where vague and uncer- 
tain language occurs in a contract, are often compelled to find 
an interpretation not intended by the parties; hence it is 
important to remember the significance of certain phrases and 
expressions as legally determined. A contract when reduced 
to writing precludes any reference to prior and unmentioned 
terms, and will be interpreted as written without verbal quali- 
fication or addition, for which reason it is necessary that the 
writing be complete and reflect the actual agreement of the 
parties in unmistakable and precise language. Herein lies the 
danger of using a printed form of contract, which, always 
general in nature, is often «nployed to cover a specific and 
actually different intention. To correct this apparent defect 
the printed form is altered in an abortive attempt to make it 
correspond to what the parties want, and the result is generally 
disastrous. The new matter inserted for the purpose of bet- 
tering the contract actually contradicts or is controlled by 
the other printed clauses, regardless of the actual intent of 
the parties, and they are bound to a performance of the agree- 
ment as it stands and cannot show another or qualifying 



290 BETWEEN MANAGER AND ARTIST 

condition of things. It is, therefore, imperative to consider 
the details and provisions of the agreement from. all points, 
for while it may appear just and consistent at the time of 
signing, after a breach or failure to perform it assumes pro- 
portions unconsidered at an earlier period. Thoughtlessness 
in this respect generally causes serious and unavoidable con- 
sequences, resulting in disappointment or serious financial 
loss and injury. 

It is advisable to reduce the terms of the agreement to 
writing independent of prepared forms, only adopting such 
clauses and covenants as are clear and understandable in their 
application to the contemplated contract. 

Certain of the important and necessary features employed 
in contracts are herein set forth with an explanation of their 
meaning as judicially determined. The manager or artist 
in signing a contract does so voluntarily and cannot be excused 
from the operation of its terms because of a failure to read 
or understand them. 

The law seeks to discover the intent of the parties from 
the instrument, and takes every part thereof into considera- 
tion, never asking the parties what they intended; the agree- 
ment must determine that. The very importance of a con- 
tract demands attention and care in its making, and when 
unadvisedly entered into leads to consequences which, with 
thought and care, could be avoided. 

The clauses now referred to are independent of one another 
and not as a whole intended to make one contract in entirety. 
Their use and combination must be determined by a specific 
and definite need duly considered. 



THE PARTIES TO THE CONTRACT 291 


§ 233. The Contract Between Manager and Artist in Detail 

I. This agreement made and entered into the first day of 
January, 1907, by and between A. B., party of the first part, 
and C. D,, party of the second part 

The engaging party should be designated by his proper 
and legal name, followed by any business or stage name which 
he may have adopted; if a co-partnership, the individual 
names of the members of the firm should appear, followed by 
the partnership name. For example : “ A. B., an individual 
doing business as ‘ The American Theater Company,’ ” or 
“ A. B. and X. Y., co-partners, doing business under the firm 
name and style of * The American Theater Company ’ ” ; or 
if the business is carried on by a corporation it should read 
“ The American Theater Company, a corporation duly organ- 
ized under the laws of the State of New York.’’ The real 
name of the party should appear and if commonly known by 
•a stage name such should be referred to, as ‘‘ C. D., commonly 
known as Armand Duval,” The date in this clause should 
be the actual date of the signing of the agreement and not the 
date when the services are to commence. It often transpires 
that the date of the signing becomes material, and if the date 
used is not the true date, evidence can be offered to show 
the actual date of the agreement. Nothing can be gained by 
making the date other than it is, for if an issue arises in which 
it is necessary to prove when the contract was signed, the 
writing does not absolutely govern and can be explained to 
the extent indicated. It merely stands as prima facie evidence 
of the time when the signatures were affixed. 

So insignificant is the mere date of a deed that the deliv- 
ery may be averred and proved to be either before or after 
the date ; and if an absurd or impossible date, or no date at all, 



292 SUBJECT MATTER OF CONTRACT 


be found, the grantee may prove the time of execution, if 
important to be proved, by witnesses.” 

Parker, C. J., in Harrison v. Trustees of Phillips Academy, 
12 Mass., 463. 

Jacobs V. Denison, 141 Mass., 117. 

Turner v. Butler, 126 Mo., 131. 

If one makes a contract under an assumed name he may 
nevertheless sue in his right name. Such signature does not 
invalidate the contract. 


Hathaway v. Sabin, 61 Vt, 608. 



“NOT TO PLAY ELSEWHERE” 293 

§ 234 . Hie Contract Between Uanager and Artist in Detail. 

2. The party of the iirst part hereby engages the exclusive 
services of the party of the second part as an actor {performer 
or musician, as the case may be) at a weekly salary of $100 
for the theatrical season of the play of "Life," which season 
is to commence at the option of the party of the iirst part on 
or about the first day of September, 1907, said engagement 
being subject to the two weeksi notice of cancellation herein- 
after mentioned. 

Here the salary, the name of the company, and the date of 
the commencement of the contemplated season should be dis- 
tinctly stated. The salary, if payable by the week or by the 
single performance, should be distinctly explained, that no 
question can arise thereon, as many performers are paid for 
certain performances only, or by a percentage based upon 
the gross or net earnings; such arrangements cannot be too 
specifically stated to insure the protection an agreement should 
provide. As every agreement varies in this particular, no set 
form is suggested; the terms, reasonably and intelligently 
stated, will control. The parties are free to make any terms 
they desire, which if explicitly set forth will be enforced by 
the court The length of a theatrical season under this clause 
is determined by the manager, who has full rights in this 
respect See post, § 255. While this form is in common use 
it is not sufficient to compel an enforcement of its terms by 
preventing the artist from performing elsewhere. A negative 
clause not to perform or render services elsewhere must be 
inserted, as explained in the following paragraph. 



THE RESTRICTIVE COVENANT 


294 

§ 235. Tbe Contract Between llanager and jSjrtist in Detail 

3. Restrictive covenant suggested in note to McCaull v. 
Braham, 16 Fed. 37, to prevent rendering services elsewhere. 

" And it is further agreed, in consideration of the premises, 
that the party of the second part {the actor, artist or other 
employee) will not, during the term of this agreement, exer- 
cise his professional skill and talents as an actor {or artist, 
etc.) in public within the City of New York {or otherwise 
stale the limit to which restriction is intended to be confined; 
and the courts are more willing to enforce these restrictions 
when the locality is limited) either for compensation or gratu- 
itously, and either upon his own account or for another em- 
ployer or establishment, without the consent in writing of 
the party of the first part first obtained, under pain of injunc- 
tion, action for damages or any other available, judicial 
remedy: provided, however, that the party of the second part 
may, at any time and as often as he thinks fit, perform gratu- 
itously at any entertainment charitably given for the burial 
expenses and relief of the family of a deceased actor {or other- 
wise state explicitly any right which the actor desires to 
reserve).” 

This clause insures the protection of the manager against 
a violation of the contract and is not opposed to the rule 
against public policy which prohibits contracts in restraint of 
trade. Here is only a reasonable or limited restraint for a 
definite time capable of enforcement. The clause can be the 
basis of proceedings in equity or its breach made the ground 
for an action at law for damages. Such negative stipulation 
is vitally important if the manager desires to avail himself of 
equitable process to prevent the artist from appearing else- 



THE RESTRICTIVE COVENANT 295 

where, which remedy in America will be denied in the absence 
of the foregoing or a similar negative covenant. 

McCaull V. Braham, 16 Fed., 37, and note. 

Consumers’ Oil Co. v. Nunnemaker, 142 Ind., 560. 

Anchor Electric Co. v. Hawkes, 171 Mass., loi. 

Swanson v. Kirby, 98 Ga., 586. 

Contracts for the services of artists or authors of special 
merit are personal and peculiar; and when they contain nega- 
tive covenants which are essential parts of the agreement, 
that the artists will not perform elsewhere, and the damages 
in case of violation are incapable of definite measurement, 
they are such as ought to be observed in good faith and spe- 
cificially enforced in equity.'’ 

That violation of such covenants will be restrained by in- 
junction, see 

McCaull V. Braham, 16 Fed., 37, post, § 354. 

In the United States a contract to serve another without 
the negative clause or restrictive covenant leaves the employee 
quite at liberty to take other service. 

Burton v. Marshall, 4 Gill, 487. 

Butler V. Galletti, 21 How. Pr., 465. 

Wallace v. DeYoung, 98 111 ., 638. 

See post. Chapter 24, Injunctions, § 354. 



296 PERFORMANCES UNDER CONTRACT 

§ 236. The Contiaet Between Manner and Artist in Detail. 

4.. The number of performances to be given each week shall 
he according to the custom of the places of amusement in 
cities and towns in which the party of the second part may be 
required to appear, also on holidays, and should the manage- 
ment he unable to give a performance or performances through 
accident, sickness, delay occasioned by reason of common 
carrier by rail or water, riot, fire, public calamity or other 
unforeseen cause, not attributable to the party of the first 
pari, and time of performance is lost, then the party of the 
second part shall not receive any salary for said time in which 
performances are not given. 

The management reserves the right to temporarily close 
the season the week preceding Christmas, and also Holy 
Week, for which time no salary will be paid. Should the 
party of the first part play the week before Christmas or Holy 
Week, then the party of the second part agrees to accept half 
salary for such time played. 

These clauses may be changed to suit any special occasion 
in the minds of the contracting parties, but should distinctly, 
state the amount, if any, of salary to be paid pending certain 
conditions of lay off, and the conditions controlling the same. 

If the question of custom here arises, evidence can be ad- 
duced to show the particular custom which obtains in the 
designated place. This, not for the purpose of altering or 
changing the terms of the contract, but to explain its intended 
meaning and purpose, and to show what the custom of the 
place is. 


Eaton V. Smith, 20 Pick., 150. 


“Usage cannot be incorporated into a contract which is 



GENERAL USAGE 


297 


inconsistent with the terms of the contract ; or, in other words, 
where the terms of a contract are plain, usage cannot be per- 
mitted to affect materially the construction to be placed upon 
it, but when the terms are ambiguous, usage may influence 
the judgment of the court in ascertaining what the parties 
meant when they employed those terms.” 

Moran v. Prather, 23 Wall, 503. 

Montaj^ie -v. Flockton, L. R. 16 Eq., 189. 



298 DETAILS OF PERFORMANCE 

§ 237. Ihities of Artsist. Details of Perfoma&ce. 

5. The party of the second part agrees to render his serv- 
ices as required at such theaters, opera houses, places of 
amusement, and halls as may be selected by the party of the 
first part, playing the part {or doubles or part of understudy) 
for which he may be cast, in a correct and painstaking manner, 
which at all times must be satisfactory to the party of the 
first part or his representative, paying strict attention to 
"make-up"" and the proper dressing and costuming of the 
character or part assigned, shall furnish costumes for the 
same and conform to and abide by all rules and regulations 
adopted by the party of the first part in respect of such 
matters. 

The defining of what the artist is to do should be explicit 
and cover in detail every contingency which may arise as to 
the degree and kind of services required. No part of the con- 
tract is more important; here questions arise as to the particu- 
lar grade and line of parts within which the artist contracts 
to play. An actor engaged for leading parts cannot be re- 
quired to appear in secondary or subordinate parts. The 
decision of what is a leading part can be left by the contract 
to the party of' the first part, otherwise it becomes a matter 
for judicial determination. On this point perplexing questions 
may arise if distinct language is not used covering the various 
contingencies. While the law implies that the performer shall 
do what is assigned him to the best of his ability, yet it is 
advisable to have an exact definition of the requirements. 
This species of contract is of a personal nature and impliedly 
requires the best ability, attention and skill of the actor, who 
is never justified in slighting, slurring or guying his part and 
must at all times give a performance which is painstaking, 



QUALITY OF PERFORMANCE 299 

consistent and artistic. The manager or his representative 
is properly the judge of the quality of such efforts and is under 
no obligation to retain the services of a performer who mars 
his performance by bad work. Protection against such an 
unwarranted act is implied by law, whether the contract 
explicitly states it or not, for otherwise, if such conduct had 
to be tolerated, business would suffer and a loss of patronage 
and financial support result to the management. The conduct 
required of an actor, although not explicitly outlined, is never- 
theless impliedly a portion of the written contract, and an im- 
portant part thereof. While the manager has a right to the 
best efforts and skill of the actor, he, in turn, must respect the 
latter’s standing and ability, and cannot require of the actor 
those things which are not fairly in the line of the part for 
which he is engaged. 


§ 238. Standard of Part as Provided Por in the Contract. 

If by skill, endeavor and ability the actor has established 
a reputation and acquired a professional standing, such must 
be respected. If employed to play a certain line or grade of 
parts he cannot be expected to take a lower grade than the 
standard set in his contract, except by a distinct and actual 
waiver of his rights. 

The manager, if he keeps within this rule, may use his 
judgment as to the assignment of parts and the casting of 
a play, and the actor has no legal ground of complaint because 
he does not like the part assigned to him or feels that it is 
not within the line of his ability. Here the sole question which 
can arise is one of degree, whether the part assigned is within 
the class of parts for which the actor is engaged; if so, his 



300 


CONSTRUCTION OF TERMS 


liking or taste for the part is of no consequence. What he 
would like and his personal choice of play or part is not for 
his determination unless specifically provided for in the 
contract. 


Baron v. Placide, 7 La. Ann., 229. 

Where under the contract a performer can be required to 
substitute for parts other than the one engaged for, he is 
entitled to a reasonable time in which to prepare, for other- 
wise a bad performance might result to the injury of his 
professional reputation, which is always a matter of important 
consideration. 

Graddon v. Price, a C. & P., 6io. 

§ 239. ConBtruotion of Theatrical Terms. 

The custom and definitions of the stage will govern judicial 
decision here as in other respects, and when the meaning of 
any particular word or clause is not apparent oral evidence is 
admissible to show the recognized meaning of theatrical 
terms such as “ star,” “ leading part,” “ comedy part,” 
“juvenile,” etc., etc. If the language used is applicable and 
has a distinct meaning in the particular profession to which 
it applies, it can always be explained to show the real intent 
of the contract 

This rule is narrow and can only be invoked when certain 
words need explanation to arrive at their sense in the particu- 
lar way employed, and is not allowed when it is sought to 
establish another or different intent. As illustrative of this : 
in a contract between author and manager which provides 
that when the play is produced the names of the various artists 
to he engaged shall be submitted to the author, such clause 



PLACE OF PERFORMANCE 301 

cannot be altered or controlled by oral evidence tending to 
show that in the theatrical profession the reservation of the 
right to approve the cast is merely to prevent the employment 
of incompetent people, and that such objections are never 
made until after the play has been produced and there has been 
an actual showing of incompetence on the part of one or 
more actors. 

Lowenfield v. Curtis, 72 Fed., los 

Kelly V. Caldwell, 4 La., 38. 

Baron v. Placide, 7 La. Ana, 229. 

The scope of the place of performance can be properly 
enlarged to suit the terms of the agreement as follows : " The 
party of the irst part hereby engages the party of the second 
part to render services at such Theaters, Opera Houses, Halls, 
Parks, Expositions, Fairs, or other places of Entertainment, 
as required.” It is well to have this clause sufficiently broad 
to cover any contingency of place, for an artist engaged to 
play in a theater might properly object to performing at a 
fair or in a park. An explicit statement cannot be enlarged 
or varied to cover other places which are not enumerated or 
mentioned. 

The time when the contract for services begins, unless 
definitely stated, is a question of fact 


Leavitt r. Kenuicott, 157 111 ., 235. 



INCOMPETENCY OF ARTIST 


302 

§ 240. Incompetency. 

6. The party of the first part may cancel this agreement at 
any time before the opening of the engagement if he shall be 
dissatisfied with the party of the second part at rehearsals and 
need assign no reason therefor. No compensation is to he 
paid said party of the second part for rehearsals whether the 
same are before the opening of the season or during the 
season, the management reserving the right to call a rehear- 
sal at any time. The party of the first part to have the right 
to dismiss the party of the second part without notice if at 
any time he neglects his part or plays the same in an unsuit- 
able manner. 

The actor’s engagement presupposes his competency, which 
should distinctly appear after a fair trial at rehearsals. The 
manager must be impartial and honest in his judgment and 
cannot use incompetency as a reason without just cause, or 
a mere pretext for discharge. If the actor shows his incom- 
petency at rehearsal he may be discharged, and cannot insist 
on a right to appear as a final test at the first public perform- 
ance. The management is not compelled to run any such 
risk and, incompetency or inattention existing, can at once 
protect his production by a discharge of the actor. 

Grinnell v. Kiralfy, 55 Hun, 422. 

In all contracts for personal service there is an implied con- 
dition of competency, and if such is lacking and the employee 
cannot suitably perform the service he has undertaken, it 
affords legal grounds for discharge, although he is employed 
for a definite period. It matters not whether he represented 
any degree of ability. The law requires that the person em- 
ployed shall have sufficient ability to reasonably fill the posi- 



INCOMPETENCY OF ARTIST 


303 


tion. Otherwise the services do not satisfy the intendment of 
the contract, and the incompetency affords proper grounds for 
immediate discharge. 


Newman v. Reagan, 63 Ga., 755. 

Mexican Soap Co. v. Qarke, 72 111 . App., 655. 

Lyon V. Pollard, 20 Wall, 403. 

In such case the contract can be terminated at once, for the 
emplo3m3ent demanding certain and explicit duties, such must 
be rendered to satisfy it, and the right of discharge exists 
without reference to any termination by notice, for under 
such circumstances no notice is required even though the con- 
tract is made with a clause providing for a termination in a 
stipulated manner. The construction of the contract shows 
that no notice could be consistently demanded under such 
conditions. 


Lyon V. Pollard, 20 Wall, 403. 



COSTUMES 


304 

§ 241. Costiunes. 

7. Party of the second part to furnish at his own expense^ 
according to the directions and to the satisfaction of the party 
of the dr St part, all costumes which may he required in the 
part or parts assigned, and agrees to loan to the party of the 
drst part such costumes or any portion thereof for the use of 
such substitute as the party of the drst part may select to play 
said part or parts, at any time during the continuance of this 
agreement, when for any reason the party of the second part 
does not play or perform. 

The actor who engages to play a part must dress it prop- 
erly. The part determines the costume, and although no ex- 
press words are used as to what shall be worn, the manager 
can insist on that which is correct and suitable. The actor 
who agrees to appear in tights cannot refuse to do so because 
of cold weather; the woman who agrees to assume a male 
part cannot object to donning a man’s costumes, nor can a 
woman engaged to assume a distinct part insist on dressing 
it unappropriately. In all such respects the manager has every 
right to dictate, even though the contract does not expressly 
so state; this is a matter of business detail and its right of 
requirement is implied. 


Duff V. Russell, 60 N. Y. Supr., 80. 



TRANSPORTATION 


305 


§ 242. Transpoitatioii. 

8. The party of the second part agrees to obey the rules, 
orders and directions of the manager and his representa- 
tive, to be promptly on hand at all rehearsals, to be at such 
railroad or steamboat stations on the departure of the com- 
pany as shall be designated, and to travel with the company by 
such routes and comeyances and at such times as the party 
of the first part may direct, and the party of the first part is not 
to be liable for the loss, damage or miscarriage of any bag- 
gage belonging to the party of the second part, although he 
assumes control over the same for the purposes of transporta- 
tion. 

This is a simple and comprdiensive statement of what can 
properly be required by the manager of anyone in his 
employ. The nature of the business itself implies the neces- 
sity of attention to and obedience of these requirements without 
any special mention, and such clause will be strictly construed 
by the court. The actor must adapt himself to the business 
elements concerned in his engagement and has no right to 
interpose individual objections to the time and methods of 
his transportation, and must be ready to rehearse and travel 
at the designated time with the other members of his com- 
pany. Otherwise would result confusion and unnecessary 
expense. 

This rule is an enunciation not only of law but business 
sense, without which no company could be successfully man- 
aged, controlled and transported. The rules and directions 
must, however, at all times be reasonable and fair. 

See post, § 246. 




THE CONTRACT BETWEEN MANAGER AND 
ARTIST (Continued) 

9. RULES GOVERNING PERFORMER 

10. REHEARSALS, UNSATISFACTORY PERFORM- 

ANCE AS GROUND FOR DISCHARGE 

CLAUSE AS TO INCOMPETENCY CON- 
STRUED 

SATISFACTORY ” DEFINED 

11. TRANSPORTATION 

12. NOTICES AND PHOTOGRAPHS 

13. AS TO TERMINATION, TWO WEEKS’ CLAUSE 

14. THEATRICAL “SEASON” DEFINED 

15. FINAL CLAUSES, SIGNATURE AND SIGNING 




RULES GOVERNING ARTIST 


309 


CHAPTER XVII 

§ 243. Buies Goreniiii^ Ferfomer. 

9. The party of the first part may make such rules and regur 
lotions as are necessary for the conduct and management of 
the party of the second part, and if such are violated or if the 
party of the second part fails to obey the party of the first 
part or his representative, or if by speech, act or conduct does 
that which does or tends to injure the manager, his business 
or company on or off the stage, the party of the first part shall 
have immediate right to discharge the party of the second part 
without notice, in which event the salary shall be paid only 
pro rata according to the performances played, up to the time 
of the discharge. 

Discipline is an essential element in the success of any 
theatrical business; the manager has the right for his own 
protection to exact from his people their best abilities and con- 
duct. An engagement embodies the need of the best ability 
freely contributed to the business in hand. Rehearsals are 
essential for the success of any play or production, the num- 
ber, length and hours of which are properly determined by 
the management. As a performance depends upon the 
ensemble work of the cast, every member of the company 
must attend rehearsals when required, even though individ- 
ually an artist is satisfactory in or knows his part and may 
have no personal need of further rehearsal. That, however, 
does not determine- the rights of the manager, for rehearsals 



INTOXICATION 


must continue until the performance reaches his ideal, he is 
the sole judge, and may require rehearsals to that end. 

An employer may not, without cause, discharge an em- 
ployee who is under contract to serve for a definite period, but 
faithful service is a condition precedent to the right of wages, 
and where there is any conduct inconsistent with the relation 
of manager and artist, the former has an undoubted right, at 
any time, to put an end to the contract. A failure to obey 
reasonable rules is legal disobedience and a reason justifying 
an immediate discharge. While a trifling matter might not 
justify a dismissal, yet even slight transgressions, if interfer- 
ing with discipline, afford proper grounds. The employee, 
no matter what his grade of service, is required to be respectful 
and obedient. He cannot be insolent and must obey all rea- 
sonable commands of his employer, and those having control 
of the business in which he is employed. He must be respect- 
ful and must abstain from all vulgarity and obscenity of 
language and conduct. 

The actor may recover his salary up to the date of dismissal, 
unless the manager can show some actual loss resulting to him 
therefrom ; if he can, the damages so suffered may be deducted 
from the amount due under the contract. 

Matthews v. Park, 146 Pa. St., 384. 

Hamlin v. Race, 78 111 ., 422. 

Leatherberry v. Odell, 7 Fed., 642, 

See post, Damag*es. 

§ 244. Intoxication. 

For the same reasons intoxication, when of such a nature 
as to interfere with the employee's ability to serve his em- 
ployer well and faithfully, affords proper justification for a 
discharge. 

Gonsolis V. Gearhart, 31 Mo., 585. 

Bass Furnace Co. v. Glasscock, 82 Ala., 454. 



CONDUCT AND MORALS 


3II 


§ 245. Cliaracter, Conduct, and Morals. 

While as a general rule of contract law, in an agreement 
for personal services, the question of the character or morals 
of the contracting parties does not enter, yet where the agree- 
ment is personal in nature, there is an implied condition of 
decency of deportment and reputation which must be sus- 
tained. 

An artist is a public character; his position compels a certain 
degree of publicity whether he desires it or not. For this 
reason it is not enough that he is competent, skilled and pains- 
taking, fuliSlling his contract within all its expressed require- 
ments ; he must further refrain from such indecent or immoral 
conduct as would become a matter of public scandal. Such 
conduct immediately depreciates his value to his manager, 
tending to keep the public from the performances in which 
he appears. He is engaged for the express purpose of appear- 
ances before a public which pays to see him or the production 
in wliich he takes part. The profit to his manager comes solely 
from public patronage, and he necessarily has the right to 
cancel the actor’s engagement if a state of immoral conduct 
exists, though he performs in an artistic manner all his pro- 
fessional duties. 

This conduct to warrant discharge must be generally 
known and a matter of common knowledge with the public. 
If merely laiown to the manager, it is not sufficient ground for 
a legal discharge; the injury from such conduct comes with 
publicity, leading to diminished drawing powers and resultant 
dafaiage. 

In the management of a public amusement there must be 
some government, and where the performers “ all mix together 
in the intercourse incident to their calling there must be the 
restraint at least which common decency imposes; where one 



312 


RULES AND REGULATIONS 


acts under no such restraint it would be intolerable if the 
management was required to keep such a person in his troupe 
in consequence of his contract If, by the -contract the per- 
former expressly engaged ‘ to conform to the rules and regu- 
lations of the company,’ it was a reasonable regulation to 
require that she would be orderly and decent while mingling 
professionally with the members of the troupe.” 

Dra}rton v. Reid, 5 Daly, 442. 

§ 246. Hani^er’s Bj^ht to ICake Rnles. 

The manager has the right to make reasonable rules for the 
conduct of his employees, not only in the playhouse, but in 
public places; he can insist on decency of conduct and asso- 
ciations. The company, and the way its individual members 
impress the community, is an essential element in the success 
of his business. The public must not be outraged or shocked 
by the conduct of his people when off the stage, for if this 
was tolerated the value of their services as professionals would 
be seriously impaired. The manager may pass upon these 
matters, and has the right to protect himself by discharging 
the offending member. 

Hamlin v. Race, 78 RL, 422. 

It is advisable to have the rules and regulations determined 
and made a part of the contract to which reference can be 
had, thereby avoiding confusion and argument as to what 
may or may not be required. Oral directions are too often 
misunderstood or their precise import forgotten to be of any 
real and lasting value. 



FINES 


313 


§ 247. lines. 

Rules and regulations, if made a part of the contract, can 
cover all matters of the artist’s performance, deportment, and 
habits. They may provide against intoxication, the introduc- 
tion of profane language or improper jest, the way of attend- 
ing to the duties assigned, and cover all matters which are 
important in the proper conduct and control of the company. 
Such rules as follow are examples of what is reasonable and 
necessary. 

No person permitted on any accouvi to address the audi- 
ence without the consent of the manager. Any violation of 
this rule will subject the party to immediate discharge. 

Any person in this company who shall perform or tender 
services in any other theater or any concert or public exhi- 
bition, without the consent of the management, will be sub- 
ject to an immediate discharge. 

The manager can distinctly reserve to himself the right 
to discharge from the company all members who shall be 
guilty of conduct tmbecoming ladies and gentlemen and cal- 
culated to bring disrepute on his organization; also, any 
who shall conspire against the interests of the manager, de- 
fame the members of the company, make public the private 
affairs of the concern, or by other conduct manifest a dis- 
position to interfere with the business of the organization. 

In some companies a violation of the rules and regulations 
in minor matters are adjusted by an agreed fine, which is 
imposed by the manager and deducted from the salary of the 
performer. The question of fine is to be treated in the same 
spirit as a clause providing for liquidated damages, and must 
be a reasonable and just amount and not in the nature of the 
enforcement of an inequitable penalty. 

A contract cannot provide anything in the nature of a 



314 


FINES 


punishment, and while the actor may agree that in certain 
instances of disregard of rules there may be deducted from 
his salary a specified amount, this is only binding to the ex- 
tent of a reasonable compensation to the manager in liquidat- 
ing the damage that results from the forbidden act. 

In matters where the damage resulting from the doing of 
a wrongful act is incapable of precise estimation some lati- 
tude will be allowed by the courts in placing the amount of 
the fine by the management. In any event, it must be fair 
and not oppressive and in the nature of compensation for an 
injury rather than a punishment. The law will not allow or 
tolerate matters of punishment in the guise of a contract. 
The parties may adjust prospective injuries by agreeing upon 
an amount which is fair and reasonable as a species of liquida- 
tion and for the purpose of avoiding subsequent litigation. 
The provisions are recognized as just and legal when dealing 
with a matter where the determination of damages which 
might result therefrom is vague. Here the parties place a 
value upon a prospective wrong, and if the amount is reason- 
able and really in the nature of a liquidation, the court will 
not interfere. If, however, there is no element of liquidation 
and the matter is merely in the nature of a fine, punishment 
or penalty, such provisions will be disregarded and the court 
will not allow the enforcement thereof as against the artist. 
From this it can be seen that a reasonable fine imposed for 
being late at rehearsal or performance, for carelessness in 
dress, deportment and acting, would be maintained by the 
court as a proper adjustment of a definite damage resulting 
to the manager. All such matters tend to lessen the value of 
a compan3r’s work and to interfere with the profits derived 
from a good performance. 



FINES 


315 


To exactly estimate the actual damage occasioned to the 
manager in money because an actor is late or an actress is 
careless in her performance or tmtidy in her dress, is an im- 
possibility, for which reason a fine or deduction for such act 
in an agreed amount will be upheld and enforced by the 
court, provided it does not transcend the rules of reason and 
common justice, and is in the nature of liquidated damages. 
No fine can be imposed or deduction made from salary unless 
the same is the subject of an exact amount and provided for 
in the contract. The law never allows the parties to adjust 
matters according to their own ideas in the way of arriving 
at damages, unless the same is the subject of mutual agree- 
ment, and while the actor by his absence, negligence, or be- 
havior may have damaged the performance, his manager 
cannot deduct from his salary such sum as he thinks right, 
unless the contract explicitly provides for such contingency 
and states the sum. The damage, although capable of proof, 
can only be adjusted by agreement or proceedings in a court 
of law, but when established as a determined sum in the way 
of liquidated damages can be deducted from the amount due 
imder the contract. 

Matthews v. Park, 146 Pa. St., 384. 

Hamlin v Race, 78 111 , 422. 

Leatherberry v. Odell, 7 Fed., 642. 


“ A penalty,” says Lord Loughborough, in Hardy v. Mar- 
tin, I Cox Ch. 26, “ is never considered in this court as the 
price of doing a thing which a man has expressly agreed not 
to do; but if the real meaning and intent of the contract is 
that a man should have the power, if he chooses, to do a 
particular act upon the payment of a certain specified sum. 



FINES 


316 

the power to do the act upon the payment of the sum agreed 
on is part of the express contract between the parties.” 

Vincent v. King, 13 How. Pr., 234. 

“As under our law the fine (when of an undue amount) 
must be considered as in the nature of a penalty, it cannot be 
recovered, and the plaintiff is entitled to recover only the 
amount of the damages which have been caused by the breach 
of the contract.” 

“ The amount of the fine is plainly intended as a penalty to 
be paid in addition to the amount of any actual damages 
suffered.” 


Meyer v. Estes, id4 Mass., 466. 

Higginson v. Wdd, 14 Gray, 165. 

“As to whether a sum agreed to be paid as damages for 
the violation of an agreement shall be considered as liquidated 
damages or only as a penalty is held to depend upon the 
meaning and intent of the parties as gathered from a full 
view of the provisions of the contract, the terms used to ex- 
press the intent, and the peculiar circumstances of the subject 
matter of the agreement. The contract is to govern; and the 
true question is, what was the contract? Whether it was 
folly or wisdom for the contracting parties thus to bind them- 
selves is of no consequence if the intention is clear. If there 
be no fraud, circumvention, or illegality in the case the court 
is bound to enforce the agreement. In order to determine 
whether the sum named in a contract as a forfeiture for non- 
compliance is intended as a penalty or as liquidated damages, 
it is necessary to look at the whole contract, its subject matter. 



FINES 


317 


the ease or difficulty in measuring the breach in damages, and 
the magnitude of the stipulated sum, not only as compared 
with the value of the subject of the contract, but in propor- 
tion to the probable consequence of the breach.” 

13 Cyc., 90, and cases cited. 

Where a contract provides for a fine or forfeiture in a sum 
so inadequate as to make it apparent it was inserted in terror em 
it will be treated as a penalty and not enforced. 

Bradstreet v. Baker, 14 R. L, 546. 

See post, I 338. 



3i8 services to BE SATISFACTORY 
§ 248. Services io be Satisfactory. 

lo. " The said party of the second part further agrees that 
if said party of the -first part shall feel satisfied that the said 
party of the second part is incompetent to perform the duties 
for which said party of the first part has contracted in good 
faith, or is inattentive to business, careless in rendering of 
characters, or guilty of any violation of the rules, then the 
said party of the first part may annul this contract by giving 
one week’s notice to said party of the second part to that 
effect, and said party of the second part shall have no further 
claim upon said party of the first part.” 

This clause was construed to the effect that the words, in 
good faith, referred to the previous expression, shall feel sat- 
isfied, and the party employed was thereby protected from a 
capricious or arbitrary discharge from the employment. The 
employer having contracted affirmatively for his own good 
faith must be held to his bargain. “ If a discharge at will 
had been intended, it would have been easy to say so in a few 
words,' It contemplated the steady emplo 3 ntnent, for a full 
season, of a person of recognized qualifications, but with a 
'reasonable check upon inattention or carelessness.” 

Grinnell v. Kiralfy, 55 Htm, 422. 

This provision is strengthened in the interests of the man- 
ager by the words " or if not satisfactory to the party of the 
first part, he may” etc,, leaving out any reference to ” good 
faith.” 

Here the services can be submitted to one measurement 
only, and that is the satisfaction of the employer, and a 
different rule than that stated in Grinnell v. Kiralfy applies. 
It now becomes no longer a matter of good faith, simply one 



SERVICES TO BE SATISFACTORY 319 


of satisfaction, for where the contract stipulates that the 
services are to be “ satisfactory ” to the employer, he is the 
sole judge, and the question of the reasonableness of his 
judgment is not one for the court to pass upon. For were 
not this so and he was obliged to show circumstances in justi- 
fication of the discharge, it would aimul the clear intendment 
of the parties, as without the clause he has the implied right 
to discharge the employee for not properly performing his 
services. - 

This rule, not only applies to services which are to be 
satisfactory, but to any matter where the subject is one wherein 
can figure the personal elements of fancy, taste, or judgment; 
as the acceptance of a picture, a costume, a bust, a play, a 
lithograph, the painting of a scene, literary and press work, 
for in all such cases if the contract so provides, the party may 
accept or not, as he is satisfied and is the sole judge of his 
own mind. It is not a question of whether he ought to be 
satisfied, but solely one as to whether he is. The state of mind 
herein defined is purely personal, and though he act from 
caprice, whim, fancy, or in a manner to others unreasonable, 
yet if not satisfied the contract is not performed. The rule 
is well settled and universally recognized. 

The person who stipulates to render his services or make 
or do something to the satisfaction of another cannot com- 
plain at what may appear as an unreasonable outcome of his 
contract; the clause is binding and affords no protection 
against an unreasonable decision of the determining party. 
It is a case where the law will not undertake to say for the 
party that he must be satisfied; it leaves the decision solely 
to him with no limitations. 

Gwynae v. Hitchner, 66 N. J. L., 97. 

Crawford v. Mail Pub. Co., 163 N. Y., 404, 



320 SERVICES TO BE SATISFACTORY 

The determination of the question whether the services of 
the employee under a contract are satisfactoiy belongs en- 
tirely to fte employer and is subject to no control of the 
courts. The employer’s will is the only tribunal to which 
the question can be referred. Where the personal taste of 
the employer is concerned the contract will be construed liter- 
ally. 

Spring V. Ansonia Clock Co., 24 Hun, 175. 

Wood Co. V. Smith, 30 Mich., 565. 

Tyler v. Ames, 6 Lans., 280. 

Brown v. Foster, 113 Mass., 136. 

§ 248. Application of the Snle. 

In Kendall v. West, 196 111 . 221, West employed one Ezra 
Kendall, a specialist in monologue, to perform at such places 
and theaters in the United States and Canada as West might 
require, and Kendall agreed to ” render satisfactory serv- 
ices” at a stated sum per week. Kendall was discharged 
as rendering unsatisfactory services. The company managed 
by West was a minstrel company. Kendall was requested 
by West a number of times to shorten the time of his per- 
formance and to try his part in black face, with both of which 
requests he positively declined to comply. The court held 
that West was justified in discharging Kendall. 

“ The appellee (West) was the proprietor of the company 
and had the right to direct its management, and if Kendall 
refused to comply with his reasonable request, West had the 
right to discharge him. The contract for emplo3mient pro- 
vided that Kendall should render satisfactory services. Ken- 
dall did not undertake to render services which would satisfy 
a court or juiy, but undertook to satisfy the taste, fancy, in- 
terest and judgment of West. It was West who was to be 



SERVICES TO BE SATISFACTORY 321 


satisfied, and if dissatisfied, he had the right to discharge Ken- 
dall at any time for any reascm, of which he was the sole 
judge.” 

If the general fitness of the performer is to be the deter- 
mining element, the word satisfactory must be eliminated from 
the contract, for with such qualification there is no element 
which can be considered, and any qualifying description is 
surplusage. If the matter in question does not involve the 
personal equation of the promissor, the tendency of the 
courts is to construe the contract as meaning that the deter- 
mining party shall act reasonably. 

Hamman on Contracts, § 283. 

Citing: 

Hawkins v. Graham, 149 Mass., 284. 

Duplex Safety Boiler Co. v. Garden, loi N. Y,, 3^. 



TRANSPORTATION 


322 

§ 250. Transportation. 

II. The party of the iirst part to pay the second party’s 
transportation while the company is en route and to carry his 
baggage up to two hundred pounds weight. Transportation 
as herein specified does not include fare to the place of open- 
ing performances, fare after the final performance under the 
contract, sleeping or parlor car fare, nor expense of carriage 
hire to and from hotel, station or theater. 

This clause states the manager’s agreement in respect of 
matters of transportation. Further concessions are often 
made and should distinctly appear. The manager can agree 
to pay any additional charges over the salary, but *is not 
obligated to, save by explicit agreement; here custom cannot 
be cited to vary the express terms of the agreement, nor to 
add other conditions to it. 

The mere contract for personal service does not carry 
with it the duty of paying transportation, which although 
generally assumed by the manager, is not an implied part of 
the agreement for service and caimot be compelled. All such 
matters must be the subject of express and d^ite agreement. 

As to Baggage, see post, § 289. 



GENERAL PROVISIONS 


323 


§ 251. General Provisions. 

12. Any original matter in the way of lines, lights, 
scenes, music or business which may be introduced in the 
performance by the party of the second part, shall on the elec- 
tion of the party of the first part become a part of the per- 
formance thereafter, for which no compensation shall be paid, 
and which may be used by anyone succeeding to the part. 
And the party of the second part shall furnish to the party 
of the first part such photographs as he may require, the 
same to be used in any way for the purpose of advertising 
the party of the second part and the attraction in which he 
appears. If for any reason the party of the first part shall 
be unable to give a performance, or if the party of the second 
part shall be unable to appear on account of sickness, or if 
the company shall be lend off and not play, then there shall 
be deducted from his salary such a proportionate part thereof 
for the day or days so lost as is pro rata according to the 
salary for the week. The party of the first part reserves the 
right to lay off the company at such times as may seem ad- 
visable to him and for which period or periods no salary is 
to be paid to the party of the second part. 

The rights to publish the photograph or picture of the party 
of the second part, the excuse of sickness and other matters 
provided for in this clause are elsewhere considered under 
their appropriate headings. 



324 TERMINATION OF CONTRACT 
§ 252 . Notice of leiminatioii of Contract. 

13. This contract may be terminated at any time by 
either party's giving to the other two weeks^ notice in writing 
of the intention so to do, without assigning any reason or 
cause therefor. 

In case of notice to the party of the £rst part it shall 
be in writing and delivered to him or his representative in 
hand, but in the absence of both from the company for a period 
of over two days, then notice may be mailed properly ad- 
dressed to the principal ofhce of the party of the tirst part. 
In case of notice to the party of the second part, it shall he 
in writing and delivered in hand to the party notified, or left 
in the place in the theater where the party is playing, provided 
for the deposit of letters addressed to members of the com- 
pany, or upon the call-board of said theater, or by mail to the 
theater where the company is playing, properly addressed to 
the party of the second part. The commencement of the two 
weeks shall be from the time the notice is actually received 
by either party hereto. 

A clause of the same general effect was upheld in Watson 
V. Russell, 149 N. Y. 388 : “ It is further agreed that the 
said Russell may cancel this contract at any time on giving 
the party of the second part one week’s notice, and paying 
one week’s additional salary, and in consideration of such 
additional week’s seilary the party of the second part agrees 
to accept one week’s notice of cancellation at any time.” 

Fisher v. Monroe, 2 Misc. R. (N. Y.), 326. 

Peverly v. Poole, 19 Abb., N. C, 271. 

Derry V. Board of Education, 102 Mich., 631. 



THE TWO WEEKS’ NOTICE CLAUSE 325 

A theatrical custom to discharge an actor on two weeks’ 
notice cannot prevail over an express contract, wherein the 
agreement is for a specified time, if no provision allowing a 
two weeks’ notice appears therein. Custom cannot vary the 
specific terms of an agreement, and when the contract is for 
a specified or definite time it can only be terminated in the 
way and manner the contract provides, and if silent in respect 
of a two weeks’ notice none will be implied or grafted on to 
the real agreement, because of some usage or custom which 
may prevail in the profession.. Most theatrical contracts con- 
tain this clause, which is well recognized and understood, but 
unless actually written in and made a part of the contract it 
does not apply. When this notice is provided for, the actor 
is entitled thereto, and if discharged without it may recover 
as damages the amount of his salary for the two weeks which 
he would have earned had notice been given him as provided. 


Hall V. Aronson, 4 N. Y. Law J., 1499. 
Peverly v. Poole, 19 Abb. N. Cas., 271. 


§ 263. ITotioe Htut Be Aotoally Given. 

This notice must be actually given and in such a way as to 
insure the fact thereof being known to the actor. It is not 
enough, unless the fact becomes actually known, to post a dis- 
charge under a two weeks’ notice clause on the door of the green 
room. On this point the court said in DeGellert v. Poole, 2 
N. Y. Supp. 651, that: “ Notifying a lady of confessed talent 
that she is discharged, by posting the fact in the green room, 
would hardly be an agreeable form of notification to an artist 
of ordinary feelings, nor do we believe that the plaintiff ever 



326 PLACE AND TIME OF NOTICE 

contemplated that such a form of notice should be given to 
her under the contract. It would be unreasonable to expect 
every chorister or member of the ballet to be daily scanning 
the walls of the green room for notices of their discharge, 
when the more agreeable and easy method of personal com- 
munication was at all times present. The plaintiff was a 
member of the defendants’ company, under their constant 
command and direction, and personal notice was so easy of 
communication that we are. satisfied that both parties con- 
templated it. Under our construction of the contract, the 
notice, not having been brought home to the plaintiff, was 
insufficient to effect her discharge.” 

In Peverly v. Poole, 19 Abb. N. C. 271, the contract pro- 
vided that in case the employee’s services should not in the 
estimation of the employer be satisfactorily rendered, “ it shall 
then be lawful ” for the employer to end the contract. 

Here the defendants were not bound to give any reason 
for their formation of their estimate of the employee’s serv- 
ices, nor did such decision depend upon the manner in whidi 
the services were rendered, and no notice could be required. 

§ 254. Place and Time of ITotice. 

The written contract should provide for this contingency 
by designating the manner and place where such notice may 
be posted or left; if not, any method can be employed which 
is fairly and consistently reasonable in the kind of business 
in which the employment is concerned. 

§.265. Theatrical Season. 

It often occurs that an artist is engaged for a “ season ” 
and the language is such as to nullify the operation of the 
expressly stated two-week clause. 



THEATRICAL SEASON DEFINED 


327 


While a two weeks’ clause is g-enerally recognized and un- 
derstood among the profession, it is merely custom and not 
law, and a contract, whether oral or written, is not affected 
thereby, unless the right of discharge under a two weeks’ 
notice is specifically and e^qjressly understood, and made a 
part of the contract. There is quite generally an opinion 
among theatrical people that the reverse of this statement is 
true. Such is erroneous, and the right to discharge or to 
cancel on two wedcs’ notice is possible only when provided 
for by actual agreement and made a part of the contract be- 
tween the parties. 

“ Theatrical Season ” or “ Season ” has a well-defined 
meaning, and is construed to mean the period during which 
a production or play is given, and is not determined by any 
reference to time, and is of an indefinite nature depending upon 
the manager’s right to close when lack of profits, impossi- 
bility of booking, illness of star, or other cause compels. 

A season is necessarily indefinite and is to be determined 
not by reference to time (imless explicitly stated), but by 
controlling events which may close or prolong such period. 

The actor engaged for a theatrical season, or for the season 
of 1906-07, where no certain number of weeks is specified, 
cannot legally complain if at any time his engagement closes. 
So uncertain is the theatrical business, so dependent upon 
public caprice, the star, and countless other conditions, no 
manager can estimate the duration or term of profit of any 
venture. The season may, therefore, be one week or forty 
weeks, according as the play continues, but terminates when 
the play is discontinued in the final sense of the word. A con- 
tract for a theatrical “ season ” is an entire contract and has 
been repeatedly so construed, and it does not alter the case even 
though the actor is paid a definite sum every week he shall 



328 “ SEASON ” DEFINED 

play, and if idle through the fault of his manager he may 
recover pay for such period. 

The season can by express language be made a period of 
certain duration, and if Ae contract has such a distinct refer- 
ence to time, that will control, and the manager must either 
play his attraction during that time or pay the actors if their 
services are not required. 

Ellser V. Brooks, 54 N. Y. Supr. Ct, 73. 

Strakosch v. Strakosch, 3 N. Y. L. Journal, 645. 


§ 266. Oral Evidence to Explain Meaning of Season. 

The meaning of terms of art, of science, technical phrases 
and words of local meaning, may, when employed in an 
agreement, be proved by extrinsic evidence, and by so doing 
the rule is not violated which prohibits the introduction of 
evidence to alter, vary, or explain an agreement, or that a 
written contract cannot exist partly in parol and partly in 
writing. By receiving such evidence, the court does no more 
than when it refers to a lexicon to ascertain the meaning of 
a word. The word “season” can properly be explained 
under the rule. 

Montague v. Plockton, L. R. 16 Eq., 189. 

Myers v. Walker, 24 IlL, 133. 

Strakosch v. Strakosch, 3 N. Y. L. J., 645. 

Leavitt v. Kennicott, 157 IlL, 235. 

§ 257. “Season” an Entire Contract. 

The actor ei^aged for “ the season ” has an entire contract 
even though his salary is to be paid wedkly for every week 



“SEASON” DEFINED 


329 


of appearance only, and if idle through the manager’s fault 
can recover his salary, although his services are not required. 

Coghlan v. Stetson, 19 Fed. R^., 727; 22 Blatchf., 88. 

Sterling v. Bock, 37 Minn., 29. 

Under a contract to serve as an actress for a period of six 
months, at a stated weekly salary, it was not necessary, in 
order to constitute a performance of the contract for a par- 
ticular week, that the actress appear upon the stage, she not 
being called upon to do so. 

Sterling v. Bock, 37 Minn., 29. 

Where an actor is employed by a manager who agprees that 
the actor shall appear at least seven times a week and be 
paid $100 for each appearance, which stipulation the manager 
violates by failing to provide employment for the actor for 
a period of three weeks, the actor may recover his salary for 
such period and waives none of his rights by subsequently 
appearing under the contract and receiving pay pursuant to 
its provisions. 


Coghlan v. Stetson, 19 Fed., 7^. 



TRANSPORTATION 


330 

§ 258. TransportatioE After notice Terminatitig Contract. 

14, In the event this agreement is cancelled by a two weeks^ 
notice from the party of the first part, he agrees to pay the 
transportation of the party of the second part from whatever 
place he may be to New York. If said notice is given by the 
party of the second part, he agrees to pay the party of the first 
part dl the necessary expenses the party of the first part is 
put to in filling his place. 

This clause can be inserted to save any question as to rights 
of transportation; without it, no demand can be made for 
such, as it is not to be implied as any part of a theatrical con- 
tract when omitted. This has elsewhere been fully e:q)lained. 

See post. Damages, § 314. 



SIGNATURES OF PARTIES 


331 


§ 259. The Signature. 

15. In witness whereof the said parties hereunto set their 
hands the day and date first above mentioned. 

A signature is valid and binding though made with the 
initials of the party only, and parol evidence is admissible 
to explain and apply them. 

Sanborn v. Flagler, 9 Allen, 478. 

A signature by the Christian name only is equally valid. 

Walker v. Walker, 175 Mass., 350. 

An agent may write his own name, and thereby bind his 
principal, and parol evidence is competent to prove that he 
signed the contract in his capacity as agent. On the same 
principle a partner may by his individual signature bind the 
firm, if the contract is within the scope of the business of the 
firm, which may be shown by extrinsic evidence. 

Sanborn v. Flagler, 9 Allen, 477. 

Nor does the law require that the signature be in the actual 
handwriting of the party, for he may use a stamp or stencil, 
but in such case it must be shown that he actually used the 
same or authorized its use by another intending the same to 
be as and for his actual signing. 

Boardman v. Spooner, 13 Allen, 353. 

Brayley v. Kelly, 25 Minn., 160. 

In like manner a contract signed by the party’s name, in 
his presence, though by a stranger, is sufiBciently well exe- 
cuted, and such signing is deemed the party’s own act. 



332 


SIGNATURES OF PARTIES 


A signature, when intended as such and required to be 
written or in writing, may include “ printing, engraving, lith- 
ographing and any other mode of representing words and 
letters.” 

Finnegan v. Lucy, 157 Mass., 439. 

If the party signs the agreement, although not in the usual 
and customary place, evidence is admissible to show that he 
intended to sign the same and is therefore bound. 

Hawkins v. Chace, 19 Pick., 502. 

Richardson v. Boynton, 12 Allen, 138. 

The signature may be by pencil or by initials or any other 
cross or mark intended as a signature. 

Bickley v. Keenan, 60 Ala., 293. 

Brown v. Butchers’ Bank, 6 Hill, 443. 

Qason v. Bailey, 14 Johns, 484. 

For it is the physical act whereby an intention of signing 
is evidenced that is the all-important factor, and the means 
employed or place used are immaterial so long as the intent to 
sign can be shown. 

A signature by an assumed name allows suit to be brought 
in the right name of the contracting party. 

Hathaway v. Sabin, 61 Vt, 608. 

If a contract has been signed by one party, intending that 
the other party thereto should sign later on, and the terms 
or language are changed, it will not be binding in its altered 
condition, unless expressly and knowingly consented to. 

'McGavcock v. Morton, 57 Neb., 385. 



SIGNATURE OF A CORPORATION 333 


§ 260. S4;natnre of a Coipoiation. 

When the signature to a contract is by a corporation it 
should be substantially as follows: 

In witness whereof the said corporation has 

caused its corporate seal to be hereto aMxed, and these pres- 
ents to be signed in its name and behalf by A. B., its Treas- 
urer, this first day of, etc. 

The corporation, (seal.) 

By A. B., Treasurer. 

If another official is empowered to sign, he can do so, sub- 
stituting his official capacity in the place of “Treasurer.” 

It is well to affix the seal and use this form even on con- 
tracts which do not require a seal to make them valid. 

In Sherman v. Fitch, 98 Mass. 59, it was held that in an 
instrument where a seal was not essential to its validity the 
signature “ G. R. Sampson, President of the Northampton 
Street Sugar Refinery” was a good execution by the cor- 
poration of a simple contract. 

Fay V. Noble, 12 Cush., i. 

Blanchard v. Blackstone, 102 Mass, 343. 

The party executing an agreement on behalf of a corpora- 
tion must have the power to perform such act, either under 
a special or general delegation of authority. Unless this is 
given his acts do not bind the corporation, as in the absence 
of evidence it cannot be presumed that he has power to 
bind it. 

See ante, § 205. 

Vogel V. St Louis Museum, eta, Co., 8 Mo. App., 587. 

Dedham Inst, for Savings v. Slack, 6 Cush., 408. 



334 


SIGNATURE OF A CORPORATION 


“ That in all cases of execution of documents and con- 
tracts, the corporation’s name should appear as the party 
entering into fte contract, and the signature should be so 
written as to bind the corporation. The improper execution 
of corporate documents, especially promissory notes, has been 
a constant source of litigation.” 

Tudcer Manual of Business Corporations (2d Ed.), page 
230, citing: 

Rogers v. Union Stone Co., 134 Mass., 31, 36. 

Produce, etc., Co', v. Bieberbach, 176 Mass., S 77 > 


It was held in Howard v. Daly that where an actor in ac- 
cepting an offer of a theatrical position mailed a duplicate 
copy of the agreement signed by him, that the contract was 
complete and executed from the time of such mailing. 


Howard v. Daly, 6i N, Y., 362. 



THE CONTRACT BETWEEN THEATER AND THE 
PLAYING ATTRACTION 

NECESSITY OF CERTAINTY IN DESCRIPTION AS 
TO QUALITY 

THE SHARING CLAUSE 

METHODS OF SETTLEMENT 

ADVERTISING MATTER 

CANCELLATION AND LIQUIDATED DAMAGE 
CLAUSE 

GENERAL PROVISIONS AS TO PERFORMANCES, 
USE OF THEATER AND SALE OF TICKETS 




BETWEEN' MANAGER AND ATTRACTION 337 


CHAPTER XVIII 

§ 261. Contract Between Uanager and Attraction. 

A contract for pla3ring an attraction differs in no wise 
from an agreement which provides for the furnishing of some 
stipulated thing, and the parties respectively have a right to 
expect and must furnish those things which are agreed. This 
right of exaction, however, depends entirely upon what the 
contract calls for, and is thereby fixed: nothing more can be 
required than is expressly stated, for a performance in kind 
is sufficient where the quality is not designated. 

If, under a sharing contract, a certain play is promised 
with no qualification as to the kind of company, the contract 
is satisfied if a company sufficient for the purposes of giving 
the play aj^ears and performs. The manager cannot com- 
plain because it is second rate, cheap or inadequate for the 
demands of his patrons. His failure to safeguard the quality 
is his fault and he may not legally complain. The law con- 
siders a contract performed by the delivery of the thing in 
kind contracted for and makes no moment of the quality. 

Quality is matter of specific agreement, and under a general 
classification cannot be considered. To find from a general 
contract that a certain quality was the actual intent of the 
parties would be substituting another contract and be in vio- 
lation of the legd intendment. The court will exact the 
stipulated play and a company of players sufficient in numbers 
and general ability to perform it with the properties generally 
required. Beyond this the law has no right to go. The 
question of first-class, good, ordinary or bad does not enter 



338 NECESSITY OF DESCRIPTION 

into the construction of the agreement. The contract is ful- 
filled by doing what is required and, although the manager 
may have expected better quality, and first rather than third 
rate, the blame and loss are his for not contracting with suf- 
ficient detail. To obtain a particular quality of kind the 
contract should contain a clause requiring it. If the com- 
pany or production is to be satisfactory, the party can protect 
himself in the manner already explained. See ante, § 248. 

Even under a general contract for furnishing an attraction 
a manager is not obliged to accept a company without its 
advertised star, or specialized features. 

Spalding v. Rosa, 71 N. Y., 4a 

§ 262. Necessity of Certainty in Description as to dnality. 

If it is thought inadvisable or impossible to describe the 
company or attraction with sufficient detail, a clause can be 
inserted providing that " said company or attraction is to be 
satisfactory to the party of the first part in all respects and 
details/" This clause is open to objection as giving the 
manager of the theater too much power. For his protection, 
however, he should have the company or attraction so ex- 
plicity described as to insure his getting what his contract 
calls for, otherwise he is without remedy and must accept 
what is offered so long as it generally conforms in kind. 
The performance provided must correspond in species and 
kind with that contracted for, but the same obligation does 
not arise as to the quality of the performance whdi clear 
and explicit words are not used which amount to a warranty, 
for if no describing terms are used it is clear that words of 
“kind or species” do not import any particular quality of 
that species. Thus, if the contract provides for a performance 



NECESSITY OF DESCRIPTION 


339 


of “ Camille,” this g^ves no assurance that it shall be by a 
first-class company, with appropriate scenery or elaborately 
staged. The principle arises under the well-established doc- 
trine of warranty, which demands express and controlling 
words as to quality in order that there may be some standard 
by which the court can enforce the intent of the parties. . Un- 
less words are used which araoimt to a warranty of a particu- 
lar kind of performance, the law will not imply a warranty, 
except to the extent that the attraction furnished under the 
contract shall correspond in kind with the matter contracted 
for. To avoid confusion the contract should specifically state 
the exact kind of performance, production or entertainment 
expected, and if the language is sufficiently clear and explicit, 
the same can be required before there is a proper fulfillment 
of the agreement. 

Gossler y. Eagle Sugar Refinery, 103 Mass., 331. 

Whitman v. Freese, 23 Me., 212. 

iWinsor v. Lombard, 18 Pick., 57. 



340 


THE SHARING CONTRACT 


§ 263. Contiaot Between Theater and Company. 

This is generally referred to as a “sharing” or “house 
contract,” and provides the terms and conditions under which 
an attraction plays a theater. The terms are simple and need 
little explanation. The usual clauses are governed by the 
same principles of law already discussed in the preceding 
chapter. 

Star Theater Sharing Contract 

Boston, Mass. 

1. THIS AGREEMENT, made and entered into this first 
day of January, 1 ^ 07 , by and between John Brown, party of 
the -first part, and Henry Jones, of New York, Manager of 
the Tin Soldier Company, party of the second part. 

The same rule of law applies here as to names and date as 
explained, ante, § 233. 

§ 264. The Sharing Clause. 

2. WITNESSETH, That the said party of the first part 
agrees to play the attraction of the said party of the second 
part an engagement of one week, which shall include the 
usual evening, matinie, and holiday performances at the Star 
Theater, commencing on the first day of January, ipo^, giving 
the said party of the second part fifty per cent, of the gross re- 
ceipts of each evening and matinie performance that said Com- 
pany may play during the above-mentioned engagement, and 
said party of the second part hereby agrees to play said attrac- 
tion at said theater on the said terms during the above-men- 
tioned time. 

“ Usual evening, mating, and holiday performances ” means 
the performances usually played at the theater with which the 
contract is made and does not refer to other theaters in the 



THE SHARING CLAUSE 


341 


city or town, the custom of which cannot be cited to qualify 
or limit the particular contract. Gross receipts comprehends 
all moneys taken in for the contracted performance, without 
deduction for an)rthing whatever, and the amount is ascer- 
tained by counting all tickets and receiving the stipulated per 
cent, of the amount of the tickets sold. This is arrived at by 
the act of “ counting up,” which takes place after or during 
each performance between the manager of the theater or his 
representative and the manager of the attraction or his repre- 
sentative, at which tiihe a statement in duplicate is pre- 
pared and usually signed by both parties, answering the pur- 
poses of a receipt or voucher for the gross receipts as divided. 

§ 266. Uethod of Settlement. 

3. A settlement shall be made during each performance 
from the box office statement controlled by tickets in the 
doorkeeper's boxes, the party of the first part to furnish all 
tickets and pass-out checks, to have the exclusive right to 
sell books and photographs, unless otherwise agreed, and 
free admission shall be under mutual control. 

This clause can be altered to suit the conditions of any 
particular contract and covers matters generally agreed upon. 

One of the forms of sharing contract in general use con- 
tains the following clauses, which are applicable where the 
party of the first part is the playing attraction and the party 
of the second part furnishes the theater or hall. These forms 
are more proper for booking of one-night stands than in 
a theater regularly used, which generally has its own form 
of sharing contract, framed for its particular needs. 

The party of the first part reserves the right to furnish all 
tickets and pass-out checks if he so desires. 



342 


METHOD OF SETTLEMENT 


The party of the £rst part has exclusive right to the sale 
of books and photographs. 

It is further agreed that during this engagement no per- 
formance or rehearsal other than herein stipulated shall take 
place in the above-mentioned building without the consent of 
said first party, first obtained in writing. 

The regular officers of the house are to have control of the 
doors and box office under the supervision of both parties to 
this contract, who are to have free access to the box office 
at all times, the keys of ticket boxes to be held by the party 
of the first part. 

A settlement to be made after first act, both from the ticket 
seller's statement (which is to be furnished previous to count- 
ing the tickets taken at doors) and the box count. 

It is also agreed that free admission shall be nmtually agreed 
upon on arrival of advance agent. 

§ 266. Specific Ihiii^ Beqxiixed of fhe Theater Manager. 

This contract generally contains a list of the specific things 
which are to be furnished by each party thereto, and the agree- 
ment must enumerate everything which is necessary for its 
proper performance. The party of the first part generally 
agrees to furnish the theater or hall “ well cleaned, lighted 
and heated, together with the scenery, properties and equip- 
ments contained in said theater or hall.” 

The following list of required service and properties can 
be added to or changed in accordance with the circumstances 
of each particular case, and may serve as a memorandum of 
things usually required: 

Regular stage hands. 

Catpenter and assistant. 



SPECIFIC THINGS REQUIRED 


343 


Reg^ar flymen. 

Ushers. 

Electrician. 

Property man. 

Janitor. 

Ticket sellers. 

Doorkeepers. 

Regular orchestra. 

House progprammes. 

Licenses. 

Regular billboards. 

Bill posting. 

Distributing of lithographs and other printing. 

Stage furniture contained in house. 

Properties not perishable contained in house. 

Assist taking scenery and baggage to and from stage and 
dressing-rooms free of charge on week days. 

Usual newspaper advertisements. 

In the above the number or quality of persons or things 
should be designated to save contention and confusion. Gen- 
eral requirements are too vagpie for any judicial determination 
as to what might be particularly desired or wanted. A gen- 
eral clause is satisfied by a general compliance. 



344 


ADVERTISING MATTER 


- § 267. Hatters to be Furnished by Flaying Attraction. 

4 . The party of the second part agrees to furnish the services 

of and company, 

said company to be composed of artists, satisfactory to the 
party of the first part, a list of whom shall be furnished to 
the party of the £rst part at any time on application, and to 
give the entire stage performance, subject to the rules of the 
theater, in a manner satisfactory to the party of the first part 
during the time stated, to pay all royalties and furnish all 
perishable properties, eatables, drinkables, live animals of 
any kind, red fires, cigars, blank cartridges, powder, caps, or 
any article required in the play or act which is destroyed dur- 
ing performance, and any extra stage hands required for the 
production of plays or acts, supernumeraries and extra ballet, 
calcium lights, special scenery, mechanical effects, and music 
necessary for said performances. 

And said party of the second part also agrees to deliver 
to the party of the first part, two weeks in advance, prepaid 
free of all charge, the following printing, to-wit: 

Complete stands of pictorial printing. 

Three-sheet Lithographs. 

..... .Lithographs of the same to be full sheets. 

Stretchers One-sheets Half-sheets. 

Eight-sheets for specicd locations. 

Said printing to contain proper reference to the dates and 
times and place of said performances. 

Anything which may be required out of the usual and 
ordinary should be the subject of a special provision in the 
contract, for otherwise it cannot be required or expected. 
And if not stipulated and afterwards demanded, the manager 



ADVERTISING MATTER 345 

has a right to ask reasonable compensation therefor before 
furnishing. 

§ 268. Duty to Fnrouli Advertising ICatter. 

The party of the second part must furnish the attraction 
stipulated for and has no right to substitute another or make 
any material change from what is required. It is a breach 
of the contract not to furnish the specified printing. Much 
depends on proper advertising, and if the manager has no 
printing with which to cover his billboards and stands, he 
can well refuse to proceed with the contract, for one of the 
principal means of attracting patronage is withheld, and as it 
is a matter peculiarly within the province of the playing 
manager to provide, no alternative presents itself. 

It is an express condition and should be strictly complied 
with as to time and amount. An acceptance without protest 
of a part of the printing or at a later time the whole, is a 
waiver of any claim of damages and cannot afterward be 
made the subject of litigation. Even if accepted under pro- 
test the matter of claim should first be discussed and settled, 
for while a cancellation is allowable for a breach of this im- 
portant provision, it would be impossible to show any par- 
ticular injury of a specific nature after the acceptance of the 
printing or of a part thereof. The settled rules of law would 
prevent a recovery of more than nominal damages. 

In such matters it is impossible to show the extent of dam- 
ages occasioned by the playing of a production where the 
terms of the agreement are violated. If the contract is per- 
formed and to bad business, it is merely speculation as to what 
caused it The fact that the company was not first-class, the 
scenery bad, or the printing deficient can be shown, but there 



346 LIQUIDATED DAMAGES 

is no certain proof capable of establishing the damages in any 
definite amount. 

It necessarily follows there should be an out-and-out can- 
cellation if it is expected to recover in an action at law any 
appreciable amoimt, for otherwise the recovery will be 
wholly inadequate unless the contract provides a sum in the 
nature of liquidated damages for such contingency. 

Under such a provision it is possible to protect the rights 
of the manager and to insure the production and its presenta- 
tion in a fitting manner. See post, Chapter 23, Damages. 

A provision in a theatrical contract, wherein the defendant 
was to furnish his theater for a week and the plaintiff a com- 
pany, that a violation thereof by either party should cause 
the sum of five hundred dollars to become payable on demand 
as liquidated damages, is not in the nature of a penalty, since 
it was competent for the parties to fix their liability in a 
reasonable amount, a recovery of such sum can be had. 

Mawson v. Leavitt, S7 SuppL, 1138. 

See post, § 332. 

§ 269. Protection Guaranteed by Clause for Liquidated Damages. 

The importance to a theater in booking an attraction to 
have it furnished as represented is apparent, and in no better 
way can the manager safeguard his interests than by the in- 
sertion of a clause which stipulates a reasonable sum as 
liquidated damages in case of a necessitated cancellation or 
a feilure to provide an attraction, the printing or other im- 
portant element, as stipulated for in the agreement. 

This method of liquidating the amount of injury by agree- 
ment is allowed and recommended as a method to avoid liti- 



LIQUIDATED DAMAGES 347 

gation on subjects incapable of the direct and positive proof 
demanded as a basis for more than merely nominal damages. 

The right of cancellation should be made clear and dis- 
tinct, giving to the manager a right to terminate the contract 
when the playing attraction fails to do those things which are 
contracted for and necessarily essential and important to 
financial success; the right of cancellation being reserved, it 
can be exercised and damages collected as provided for in the 
agreed amount. 

If the contract contains a clause that “ said company to be 
composed of artists satisfactory to the parly of the first part,” 
the manager has a right to insist on being satisfied, and if not, 
can cancel. The question of satisfaction has been discussed 
at length in § 248, the rules as stated governing here. 



348 CANCELLATION CLAUSE 

§ 270 . Cancellatioii and Liq^nidated Damage Clanse. 

5. It is further agreed that if the party of the second part 
fails to furnish the attraction herein provided for, or if the 
same is not composed of artists satisfactory to the party of 
the first part, or does not deliver to the party of the first part 
the stipulated printing within the time agreed, or shall play 
said attraction at any other theater in Boston within the time 
from the signing of this contract until the fulfillment of the 
same, or for a period of four weeks after the engagement 
herein provided for, without the written consent of the party 
of the first part having first been obtained, that in the event 
of the violation of any of the aforesaid stipulations, the party 

of the second part shall pay to the party of the first part 

dollars as and for liquidated damages therefor, and the party 
of the first part shall have the right to cancel this contract 
at any time and claim said damages for the violation of any 

of the aforesaid causes. Said amount, to wit: 

dollars agreed upon as liquidated damages being a fair and 
adequate amount for the violation of any of said stipulated 
clauses and intended to fairly cover the loss and damage oc- 
casioned said party of the first part for a breach thereof. 

In Mawson v. Leavitt, 37 N. Y. Suppl. 1138, a like clause 
was held not a covenant for a penalty, but for liquidated 
damages and sustained. 

It is further agreed and understood by the parties hereto 
that, for any violation of the above-mentioned covenants by 
either pcnty (Acts of Providence excepted) he or they shall 
forfeit or pay over to the other party the sum of five hundred 
dollars on demand as liquidated damages/* 



'CANCELLATION CLAUSE 


349 


The amount so fixed not being disproportionate to the 
amount of damages that might reasonably 1^ within the con- 
templation of the parties at the time, they have a perfect right 
to fix and limit that liability. 

See post, § 332, Liquidated Damages. 



350 


MISCELLANEOUS CLAUSES 


§ 271. Causes Ezcnsi^ Performance. 

6. Should Hre, war, riot, legal process or any other unfore- 
seen event make it impossible for the party of the first part to 
carry out the terms of this agreement he shall not be responsi- 
ble for damages of any kind arising therefrom. 

As to the legal effect of this clause and implied conditions 
governing matters of unavoidable or unforeseen casualty, 
see ante, § 215, et seq. 

Taylor v. Caldwell, 3 B. & S., 826. 


§ 272. Uiseellaneoiu Clauses. 

The theater and stage shall be entirely at the disposal of the 
party of the first part for Sunday performances. It is also 
agreed that the Property, Scene Plots and copy for House 
Programmes shall be sent by the said party of the second part 
to the said party of the first part at least two weeks in advance. 

The box dfice and the sale of the tickets shall be under the 
exclusive control of the party of the first part. 

These clauses are sufficiently plain and require no detailed 
explanation save as heretofore given. The manager has a 
right to the company or subject matter for which he contracts 
and need not accept an inferior or indifferent one. A change 
of star, leading features, or play or any material weakening 
of the attraction gives legal ground for cancellation, under 
certain conditions, but it is better to state the fact than to 
leave it to legal implication, for thax there can be no variance 
of opinion in respect thereto. See ante, § 262. 



NECESSITY OF EXPLICIT STATEMENT 351 

§ 273. Theatrical Contracts Demand Explicit language Covering 
aU Agreed Hatters. 

Finally, in theatrical contracts the important need is a clear 
and explicit statement of all the requirements and intent of 
the contracting parties. Whatever is omitted, even though the 
same may have been discussed before the contract was drawn 
up, cannot be considered as in any way a part of the agreement ; 
neither custom nor law will supply forgotten or overlooked 
terms and conditions. The importance of a contract demands 
care and consideration in the attempt to have it reflect the 
true intent of the parties. A contract stands as made and not 
as it might have been made. Oral explanations, agreements 
or provisos, though discussed and fairly understood, form no 
part of the agreement as made if left out of its written terms. 
The final execution precludes all which has gone before and 
includes only so much as is written. This important princi- 
ple should be continually in the mind of the layman who 
prefers to draft his own agreements. 

The foregoing clauses, many of which are in general use, 
do not constitute an entire form of contract and are only re- 
ferred to as important elements of a sharing agreement worth 
careful consideration. 




LEASES OF BUILDING FOR THEATERS OR PLACES 
OF AMUSEMENT 

CHANGE OF LAW RESPECTING USE OF SAME 
CERTAIN KINDS OF ATTRACTIONS DEFINED 
USE OF PREMISES FOR AN IMMORAL PURPOSE 

NECESSITY OF CLAUSE TO PROTECT AGAINST 
CHANGE IN BUILDING LAW 

FIXTURES DEFINED 

DISTINCTION BETWEEN LEASE AND LICENSE 
LEASE WHEN CONTROLLED BY CUSTOM 




LEASE OF THEATER 


355 


CHAPTER XIX 
§ 274. Lease of Theater. 

A lease of property for use as a theater or place of amuse- 
ment differs in no essential detail from any lease of real estate 
for a specified purpose, and is governed by the same principles 
of law. 

A general lease of real estate without a specific designation 
of its intended use as a theater is not broken because the pub- 
lic authorities forbid its occupancy for such purpose. 

As a theater is a legal and proper enterprise, property leased 
without restriction can be put to theatrical uses, without any 
violation of the lease. 

§ 276. Covenant to Maintain Fioperty at Stipulated Standard. 

Generally a theater lease contains a covenant whereby the 
lessee agrees to keep the property up to some defined standard; 
to maintain it as a Urst-class or popular-priced place of amuse- 
ment. The lessor may covenant that no attraction of ques- 
tionable or specified nature will be given in the theater. Such 
provisions are for the protection of the property and to prevent 
any use which would cheapen its value or subsequent rental. 
To this end a scale of prices may be agreed upon, covering 
the rates of admission, a covenant inserted prohibiting Sun- 
day concerts, burlesque shows, or any other doubtful species 
of entertainment; such provisions are usual and legal as defin- 
ing the specified uses to which the property may be put. Such 



356 ATTRACTION DEFINED 

uses will be noticed and a violation of the prohibition pre- 
vented by injunction. See po^, § 356. 

The difficulty of defining a Arst-class or second-class theater 
is apparent and leads to a discussion involving many debatable 
matters. It is important for the owner of the property to so 
regulate the prices and performances given as to insure the 
continuance of an established standard for his theater or hall, 
and unless some such stipulation is made the lessee can make 
any use of the property not clearly improper from a moral 
or l^al standpoint. The place once let for the general and 
unrestricted uses of a theater is subject to no further dictation 
or control of the lessor, and he is without remedy to prevent 
its use as a popular-priced house, although his desire is to 
have it run as distinctly first-class. These are matters to be 
provided for in the lease and not for implication. The law 
does not construe a lease, general and unqualified in its terms, 
M a restricted agreement over which the lessor has implied 
powers of dictation. 

Even under a covenant providing for some designated, but 
general kind of use, questions arise as to the application of 
the definition adopted by the parties, which to be of any avail 
must be clear, specific and detailed. 

§ 276. VlLat Constitates a Certain Species of Attraction. 

In instances where a difference of opinion arises as to what 
is first-class or what may be regarded as an attraction of a 
questionable character the lease will, when possible, be con- 
strued according to the practical interpretation put upon such 
terms or definition by the parties before the litigation began. 
Where attractions are to be booked as for a “ first-class place 
of amusement ” and not to be “ of questionable character ” 
some difficulty arises as to a legal classification. Such terms 



ATTRACTION DEFINED 


357 


are probably incapable of any very exact and precise defini- 
tion, as applied to theatrical attractions. No general definition 
can be given which would enable everyone to classify with 
precision and unerring accuracy every theatrical attraction. 
Theatrical managers of experience and playgoers of intelli- 
gence do not differ much in their general definitions of these 
terms. The difficulty and difference of opinion begins when 
they come to classify a long list of attractions. Then the fact 
is -disclosed that an attraction which one manager ranks as 
first-class, in the opinion of another manager falls below that 
standard. In this matter we think the parties should be bound 
by the practical construction which they themselves put upon 
their contract before this litigation began.’’ 

The test of the box office receipts cannot be applied to 
determine whether an attraction is first-class, for an attrac- 
tion of the highest dramatic excellence may be played at a loss 
and one of a highly questionable character at a profit. Plays 
which imite the highest dramatic excellence with large profits 
are, in the opinion of theatrical managers, ideal first-class at- 
tractions. Yet they all agree that plays which fall below this 
ideal standard are nevertheless ranked as first-class attrac- 
tions.” 


Leavitt v. Windsor Land, etc, Co., 54 Fed., 444. 

§ 277. Premises Gannot be Leased for an Illegal Purpose. 

A lease being a contract, like any other agreement, is void 
if the premises are leased for the giving of immoral perform- 
ances, the same being for a purpose opposed to public policy, 
and under the ban of the law. 


Levy V. Yates, 8 Ad. & EIL, 129. 

Pringle v. Napenee, 43 U. C. Q. B., 285. 



358 CHANGE OF LAW AFFECTING LEASE 

The landlord has a right to have the lessee enjoined from 
any use of the demised premises which is immoral, against 
public policy or a nuisance. Equity can prevent any use which 
might result in an irreparable injury. 

See post, § 366. 

§ 278, necessity of Clause Frotectiiig lessee in Case of Change in 
Law as to Use of Beal Estate for Theatrical Purposes. 

It is important to remember that a general lease of real 
estate allowing the use of the premises for a theater or place 
of public amusement is not limited to such use, and according 
to the rule laid down in Taylor v. Finnegan {ante, § 213) a 
change in the statute law or city ordinance which prohibits 
the use of such property as a theater or place of public amuse- 
ment does not relieve the lessee from paying the stipulated 
rental, because such use is only one of many to which the prop- 
erty can be put. Hence the necessity of providing against 
such contingency in the lease. 

A change in the requirements of a State building law or 
the passing of some stringent ordinance to protect the public 
from fire or panic may stop the occupancy of the property for 
amusement purposes, as the structural conditions, location or 
plan of the building may prevent a remodeling which can 
make the structure conform to the new law. Such is a serious 
and unavoidable hardship. The legislature, however, has full 
power in this respect and exercises it in its duty of protecting 
the public. For this reason no lease should be accepted by a 
manager unless it provides for a cancellation or abatement 
of rent whenever public authority interferes with the use of 
the property as a theater or place of public amusement. 

This provision must be clear, explicit and open to no 



EQUITABLE REMEDY 


359 


amb^ity, for otherwise the general, rather than a special, 
occupancy will be created, and an interference with specific 
use will afford no excuse on the part of the lessee to break his 
covenant to pay the stipulated rental. 

In these times whai changes in the laws governing the con- 
struction and maintenance of buildings to which the public 
resort are frequent and drastic, careful consideration should 
be given to the preparing of a lease, so there may be a placing 
of the responsibility of making the change and bearing the 
expense, either on the lessor or lessee, with a provision for an 
abatement of rent while changes are being made or so long as 
the occupancy is prohibited. As already explained, only under 
a distinct provision does such change in law work an implied 
right of cancellation on the ground of an impossibility of 
performance created by law. 

It is unwise to accept present conditions of law as gov- 
erning the future, for a theater fire or disaster may lead to a 
general and unexpected adoption by the dvic authorities of 
protective requirements proving a serious hardship to the 
owner or manager. Such contingency is of necessary consid- 
eration in the framing of a theater lease. 

§ 279. Specific Perfonnanoe Will Not be Decreed Compelling an 
Owner to Pnmisli His Theater to the lessee for the TTses of 
a Theater. 

One cannot enjoin the proprietor from refusing to furnish 
his theater, stage hands, orchestra, etc., according to the terms 
of a contract for the appearance of a company on a certain 
day, nor from letting the theater to another company at that 
time, as such a contract cannot be affirmatively specifically 
enforced, as before a contract will be so enforced there must 
exist a mutuality therein, so .that it may be enforced either 



BREACH OF LEASE 


360 

way, nor will equity grant an injunction which will indirectly 
enforce a part performance of a contract only. 

Welty V. Jacobs. 171 M.* 624. 

§ 280. Bemedy at Law. 

The proper remedy is at law for a breach of a contract of 
lease, and where such is broken by a notice of renunciation, 
prior to the time for its performance, the damages are such 
as would have arisen from the non-performance of the con- 
tract at the appointed time, subject to abatement in respect 
to any circumstances that may afford the means of mitigating 
the loss. 

Grau V. McVicker, 8 Biss (U. S.), 13. 

§ 281. Bight of Action Aoomes on Breach. 

Where one party to a contract refuses to perform, the other 
party has immediate right of action and need not wait for the 
time of performance. 

Grau V. McVicker, 8 Biss ^U. S.), r 3 . 

Traver v. Halsted, 23 Wend, 66. 

Where there is a distinct agreement in a lease that the 
premises shall be used for no other purpose than a theater, 
such covenant is not violated by the closing of the theater 
through the manager’s inability to keep it open. 

Croft T. Lumby, 5 EL & BL, 648. 

Leader v. Moody, L. R., 20 Eq., r45. 

§ 282. Eixtores. 

The term fixtures when applied to a theater includes all 
the fittings which are reasonably necessary to make the place 



FIXTURES 


361 


suitable for theatrical and amusement purposes. This rule 
must in a measure vary in each particular instance and depends 
upon the kind of theater which is to be maintained. If for 
use as a combination house, playing companies on sharing 
terms which furnish their own scenery, much less in the way 
of scenery might be expected as a fixture than under a lease 
of a house for stock purposes. 

Forbes v. Howard, 4 R. L, 364. 

Gross V. Jackson, 6 Daly, 463. 


§ 283. Buie Setermuiu^ What Are Tiztnres. 

The kind or character of the place specified by the lease has 
much to do with determining what can be legally required or 
expected as a fixture. 

In considering the question of fixtures for a theater gen- 
erally, the rule comprehends such articles of furnishing and 
furniture as are reasonable and necessary for the use of a 
place as such. 

It comprises all proper fixtures for the fitting up of the 
building for the use to which it is to be applied, such as chairs, 
upholstery upon the seats, etc. ; but not painting of the walls. 

Forbes v. Howard, 4 R. L, 364. 

“ The only question presented in this case is whether or not 
the scenery and various other articles constituting the stage 
and scenic outfit of an opera house are such things as may 
properly be classed as material for its improvement In a 
strict sense, these articles, or some of them, may not be fix- 
tures; but they are nevertheless essential to the completeness 
of a building of that kind. They necessarily form a part and 



362 


FIXTURES 


parcel of the edifice itself. No one would ordinarily consider 
household furniture and belongings as a part of the premises, 
but everyone would naturally regard the drop curtains, wings, 
borders, set houses, set trees, balustrades, etc., as being parts 
of an opera house edifice.” 

Waycross Opera House Co. v. Sossman, 94 Ga., lOO. 

§ 284. What Are Pixtores. 

Chairs, the stage, stage fixtures, and drop curtain are fix- 
tures. The scenery is, if specially designed, fitted and con- 
structed for the particular building, but is not if used or 
suitable for use in other playhouses. This is a question of 
intention which is controlled by evidence showing how the 
same was used. 

Bender v. King, in Fed. Rep., 60. 

Oliver v. Lansing (Neb.), 80 N. W., 829. 

Grosz V. Jackson, 6 Daly, 463. 

“ In getting up a theatre the whole building, considered in 
reference to its uses, makes the house contracted for; all that 
serves to complete and furnish such a house for the purpose 
designed makes up the house and is part of it when com- 
pleted.” 

Halley v. Alloway, 78 Tenn., 523. 

Sosman v. Conlon, 57 Mo. App., 25. 

N. Y. Life Ins. Co. v. Allison, 107 Fed., 179. 

§ 285. Bemedy to Prevent Wrongful Bemoval. 

An injunction will issue to prevent the wrongful removal 
of fixtures where such act can be shown to be of irreparable 
damage and the question of whether the property is or is not 
a fixture is in dilute. 

Trask v. Little, 182 Mass., 8. 

Camp V. Thatcher Co., 75 Cornu, 165. 

See post, § 380. 



LEASE AND LICENSE 363 

§ 286. Distinotion Between Lease and license. 

A lease comprehends more than a mere license, and an oral 
contract will not be construed as a lease when it is really no 
more than a license to use the property on certain specified 
occasions. The question of determining the difference be- 
tween a mere license to use the premises or a lease thereof 
depends upon the arrangement and intent of the parties to the 
transaction, and is at times a most important matter, govern- 
ing many collateral matters. 

Here time is not the controlling element, for a lease can 
be for a single day, and a license for a year. The lease is 
irrevocable, granting certain defined rights; a license is re- 
vocable and not an agreement for the sale of any interest 
in lands under the Statute of Frauds. To this extent, at least, 
a surer way is to procure a lease for even a short term rather 
than a license. 

The authorities are well agreed on this principle, and where 
the owner of a hall entered into an oral contract with J by 
which he agreed to permit him to use the hall for dancing 
parties on the afternoons of four holidays at a stipulated 
price for each afternoon, such contract was construed from 
the nature and language of the terms to be a license merely 
and not a contract for the sale of any interest in land, and 
consequently not within the provisions of the Statute of 
Frauds, and that such an agreement was valid, though not in 
writing. 

Johnson v. Wilkinson, 139 Mass., 3. 

§ 287. Lease When Governed hy Custom. 

If the parties making a lease contract with a well-estab- 
lished theatrical custom in mind and can be fairly said to have 



364 USAGE CONTROLLING LICENSE 


made the agreement in reference to it, such custom can be 
proved, and will be construed in conjunction with the terms 
of the lease. This rule depends in its application solely upon 
the parties’ knowledge of such custom or usage, and their 
evident intent of contracting with it in mind, and does not 
change the fixed principle of law that custom or usage cannot 
be shown to vaiy or alter the terms of a distinct agreement 
which by its phraseology repudiates any such controlling 
factor. 

Suit was brought upon a lease to recover a stipulated sum 
for the privilege of occupying a theater for dramatic per- 
formances upon certain nights of January, 1886. The de- 
fendant contended that on October 12, 1885, nearly three 
months previous, he gave notice of his desire to cancel the 
lease, and under a custom of the theatrical profession, one 
month’s notice of a desire to cancel a lease is considered 
ample, and that the custom was well known to the plaintiffs. 

The court held that “ such a usage, if established, would 
be binding if the parties contracted in reference to it.” 

American Academy of Music v. Birt, 2 W. N. C (Pa.), 351. 

Wigglesworth v. Dallison, Doug., 201. 

Van Neas v. Packard, 2 Pet, 138. 

As to the rules governing the time to sue when a lease is 
broken or its terms repudiated, see Grau v. McVicker, 2 Biss 
(U. S.) 13. 

§ 288. Destruction of Premises. 

If the premises are destroyed, where there is no covenant 
that the same shall continue, the law implies that such 
destruction excuses the parties from a further romplianr^ 
with the terms of the lease. 

Taylor v. Caldwell, 3 B, & S., 826. 



BAGGAGE DEFINED 

LIABILITY OF COMMON CARRIER THEREFOR 
STAGE PROPERTIES NOT BAGGAGE 

FAILURE OF COMMON CARRIER TO DELIVER 
SCENERY 




BAGGAGE 


367 


CHAPTER XX 
§ 289. Bi^^ge Defined. 

An important distinction is to be noticed bcitween baggage, 
which includes articles required for the pleasure, necessity 
or convenience 'of a passenger during his journey, and that 
which, though property, is transported by a common carrier 
as mere freight or property. Therefore, in the absence of 
special agreement, stage properties, costumes, scenery, para- 
phernalia, advertising matter and lithographs do not come 
within the legal classification of ba^age, and in the absence 
of negligence, no liability can arise against a railroad company 
or other common carrier for its loss or destruction. 

Oakes v. Northern Pac. R. R., 20 Ore., 392. 

Michigan Southern R. R. v. Oehn, 56 111 ., 293. 

§ 290. Liability of Common Carrier Therefor. 

Baggage in the sense of the law may consist of such 
articles or apparel as the necessity, convenience, comfort or 
recreation of the passenger may require him to take for his 
personal use, according to the habits or wants of the par- 
ticular class to which he belongs, either with reference to 
the immediate necessities or the ultimate purpose of the jour- 
ney. Such a common carrier is bound to carry and for its 
loss or destruction, save by the act of God or the public enemy, 
it must respond, though without fault on its part To this 
extent it is an insurer and is responsible for the carriage and 



368 STAGE PROPERTIES NOT BAGGAGE 


safe delivery of such baggage. But it is only to such articles 
as may be legally termed baggage that this liability attaches, 
no matter what may be the contents of the bag or trunk. The 
question of what artides of property contained in a trunk or 
bag, may be deemed baggage within the rule, is to be deter- 
mined by inquiry according to the circumstances of the case, 
subject to the power of the court to correct any abuse. 


Oakes v. The N. P. R. R. Co., 20 Ore., 392. 
Railroad Co. v. Fraloff, 100 U. S., 24. 
Wilson V. G. T. R. R. Co., 36 Me., 62. 
Jordan v. Fall River R. Co., 5 Cush., 69. 


§ 291. Stage Properties Not Bag^^. 

“Stage properties, costumes, paraphernalia, advertising 
matter, etc., are not articles required for the pleasure or con- 
venience or necessity of the passenger during his journey, but 
are plainly intended for the larger or ulterior purpose of car- 
rying on the theatrical business. They do not fall, therefore, 
under the denomination of baggage, and in the absence of 
negligence, no liability can arise against the carrier for their 
loss or destruction, unless accepted as baggage by the carrier.” 


Oakes v. The N. P. R. R. Co., 20 Ore., 398. 

While it is true that passenger carriers are not liable for 
merchandise and the like when packed as baggage if the same 
be lost, yet if the merchandise is so packed as to be obviously 
merchandise to the eye and the carrier takes it without ob- 
jection, he is liable for the loss. For then the carrier may be 
said to have chosen to treat the property as personal baggage 



NOTICE TO CARRIER 369 

and having done so becomes liable for the loss, and may not 
complain at the outcome of its own voluntary act. 

Stoiy on Bail, § 4gg. 

Great Northern Ry. Co. v. Shepherd, 8 Ex. 30. 

Macrow v. Great W. Ry. Co., L. R. 6 Q. B., 613. 

It has been held that manuscript music carried by a traveling 
company in its business is entitled to be regarded as baggage 
when accepted and carried as such where the company travel 
as passengers by train. 

T. & P. Ry. Co. V. Faust Co., 30 Tex. Civ. Ap. 144. 

A carrier is liable, having, with full knowledge of tiie char- 
acter of the article to be transported, received and accepted the 
same as baggage. 


Minter v. Pac. R. R. Co., 41 Mo., 503. 

§ 292. Carrier Must Have Notice. 

The carrier is only liable when he has notice that he is 
carrying merchandise and not baggage. Therefore, if a pas- 
sengfer delivers to a carrier as baggage a trunk or valise con- 
taining merchandise, not his personal baggage, of which fact 
the carrier has no notice, the carrier, in the absence of negli- 
gence, is not liable for its loss. It is not bound to inquire as 
to the contents of the trunk or bag delivered to it as baggage, 
and has a right to assume it contains nothing but the pas- 
senger’s baggage. 

Haines t. Chicago, St P., M. & O. R. R., 39 Minn., 160. 

Hoeger v. The C, M. & St P. Ry. Co., 63 Wis., loa 

Butler V. Hudson R. R. Co., 3 E. D. Smith, 571. 

Hannibal R. Co. v. Swift, 12 Wall, 363. 



BAGGAGE 


370 

§ 288. False Bepreseatation as to Contents of Tmnlc. 

A traveler who presents to a carrier of passengers a trunk 
or valise, such as is commonly used for the transportation 
of personal baggage, represents by implicatiorv that it con- 
tains only such articles as are necessary for his comfort and 
convenience on the journey, and if, in fact, it contains mer- 
chandise, the traveler is guilty of such fraud as to absolve 
the carrier from the extraordinary liability of an insurer. 

“ The cases that hold the doctrine, that the carrier is to in- 
quire as to the contents of the package offered, are in reference 
to carriers of freight and not of passengers and their baggage. 
There is a reason for the distinction. Carriers of freight 
receive all kinds of packages, some valuable and others of 
trifling value. This fact has been held to impose upon them 
the duty, in all cases, in the absence of fraud and deceitful 
practices, to inquire of the shipper as to the contents of the 
package if they would protect themselves in the carriage 
of valuable freights. It is their duty to receive all kinds of 
freight, whether of great value or otherwise. The shipper 
is not bound to disclose the nature of the contents of the 
package, unless he is inquired of concerning it. But this rule 
presupposes good faith in the shipper.” 

Mich. Cent R. R. v. Carrow, 73 111 , 34& 

Blumenthall v. Maine Cent 1 ^ R. Co., 70 Me., SSO. 

Wunsch V. Northern P. R. R. Co., 62 Fed., 878. 

The carrier may rely upon the representation that whatever 
is offered as baggage is that and nothing else. 

Mich. Cent R. R. v. Carrow, 73 IlL, 348. 

CahiU V. L. & N. W. Ry. Ca, 10 C. B. (N. S.), 154. 

Collins V. B. & M. R. R., 10 Cush., 506. 

Balson t. Donovan, 4 B. & A., 21. 



FAILURE TO DELIVER SCENERY 


371 


Carriers are liable if they knowingly undertake the trans- 
portation of merchandise, in trunks or boxes which have 
been received by them for transportation, in passenger trains, 
unless the agent who receives the packages for that purpose 
violates a regulation of the company by so doing, and the 
passenger or owner of the goods has notice of such regulation. 

Sloman v. Great Western Ry. Co., 6 Hun, 546- 

Stimson V. Conn., R. R. R., 98 Mass., 83. 

Stoneman v. Erie Railway, 52 N. Y., 429. 

§ 294. Pailnre to SeUver Scenery by Common Carrier. 

When a railroad company fails to deliver a car containing 
scenery whereby the manager is unable to give a performance, 
in an action brought against the carrier for breach of con- 
tract for such failure, the railroad cannot show a custom of 
its road or of other transportation companies to make such 
contracts as incidental to the transportation of the members 
of the company and that had it known that the members in- 
tended to travel by another route than that by which the 
scenery was sent the railroad would not have made the contract. 


Leach v. N. Y., N. H. & H. R. R., 89 Hun, 377. 




LITHOGRAPHS AND PHOTOGRAPHS 

ADVERTISING SPACE 

PHOTOGRAPH OF PUBLIC CHARACTER 




LITHOGRAPHS 


375 


CHAPTER XXI 


§ 295. lifhogtaplia. 

Lithogpraphs form an important element and medium in 
theatrical advertising. Such, when ordered, are for the 
special, peculiar and exclusive use of the manager, and if 
original can be protected as any picture or device by copy- 
right or the title protected in equity in the same general way 
as dramatic compositions. 

They are essential to the business, and if sufficiently original, 
proper subjects for protection. 

The right to publish the picture of an actor as a lithograph 
for advertising purposes is considered under the head of 
Photographs. See also, 

DisDebar v. Hoefle, 4 N. Y. L. J., 1475. 

§ 296. Advertisii^ Space. 

A contract made by the lessees of a tract of laud used for 
a trotting park, giving the other party thereto the right to 
use the fences, confers the right to use the inside as well as 
the outside of such fences and involves and includes the right 
of entry upon the premises to reach the inner surface of the 
fence, and such latter right, if not an easement, is a burden 
or servitude in the nature of an easement. 

Willoughby v. Lawrence, 18 Chic. L. News, 180. 



LITHOGRAPHS 


376 

§ 297. lithogrsplis Defined. 

A contract to manufacture lithographs and engravings as 
advertisements for the especial, peculiar and exclusive use of 
a theatrical manager, adapted to the names and characters 
of his performances, is a contract for work and labor and 
not a sale, and where such lithographs and engravings have 
been manufactured and set aside for such manager accord- 
ing to the contract, but he has failed to pay for them and 
take them away within the time agreed, their subsequent 
destruction by fire without fault of the manufacturer does 
not affect the right of the latter to recover the contract price 
of the work. 

“These contracts may be likened to a job that a printer 
does for another and according to his directions when the 
work consists of handbills or advertisements set up in attrac- 
tive form and adapted exclusively to the business of such 
other person and useful to no one else. The job is completed 
according to contract and the other party has failed to take 
them away and pay for them. May not the printer sue ? Or 
an artist paints the likeness of another according to contract. 
It is not called for, but left a long time on the artist’s hands. 
The woric was well done and acceptable to the person who 
ordered it. It is of no use to the artist or of any value to 
anyone excq)t to him whose likeness or picture it represents. 
In all these cases it is too clear for argument that the trans- 
action is not governed by the law of sales, but of work and 
labor. In these supposed cases, if the handbills and adver- 
tisements in the one case, and the likeness in the other, after 
the time for taking them away and paying for them had ex- 
pired are burned up, whose loss is it? They are put by them- 
selves in a safe place until called for. Why should the printer 



ADVERTISEMENTS IN PROGRAM 377 

or the artist lose by the fire, and the person who ordered the 
work done, and who is in default in not taking it away and 
paying for it, and by whose negligence it was left with the 
artist where it was burned without his fault, suffer no loss. 
The law works no such injustice. These cases are alike in 
principle. They are clearly analogous.” 

The Central Litho. & Eng. Co. v. Moore, 7S Wise., 17a 
Mixer v. Howarth, 21 Fide., 205. 

Goddard v. Binney, 115 Mass., 450. 


§ 288. AdTertisement in Program. 

A contract to insert an advertisement in programs of 
. three different theaters for the “ theater season ” for the sum 
of $8.50 per week is an entire contract and not susceptible 
of apportionment, and only terminated when the theaters 
closed and that the contract did not terminate until it became 
impossible to further publish the advertisements on the pro- 
grams because of the closing of the theaters. 

Hazzard v. Hoxsie, 53 Hun (N. Y.), 417. ' 


§ 299. Photographs. 

A individual has an ownership and right of privacy in his 
photograph, and while the photographer owns the negative 
he can be restrained by injunction from using prints there- 
from for any purpose not sanctioned by the original of the 
picture. 

The law respects the privacy of the individual and will 
not tolerate an invasion of such right by the making public 
of his portrait by another without proper consent. 



378 PHOTOGRAPHS 

§ 300. . The Bight of a Prirate Individual to Have Eis Kctnre 
Protected. 

“ Independently of the question of contract, I believe the 
law to be that a private individual has a right to be pro- 
tected in the representation of his portrait in any form ; that 
this is a property as well as a personal right; and that it be- 
longs to the same class of rights which forbids the reproduction 
of a private manuscript or painting or the publication of 
private letters or of oral lectures delivered by a teacher to 
his class or the revelation of a merchant’s books by a clerk.” 

Corliss V. R W. Walker Co., 64 Fed., 280. 

Duke of Queensberry v. Shebbeare, 2 Eden, 329. 

“But while the right of a private individual to prohibit 
the reproduction of his picture or photograph should be 
recognized and enforced, this right may be surrendered or 
dedicated to the public by the act of the individual just the 
same as a private manuscript, book, or painting becomes (when 
not protected by copyright) public property by the act of pub- 
lication. The distinction in the case of a picture or photo- 
graph lies, it seems to me, between public and private charac- 
ters. A private individual should be protected against the 
publication of any portraiture of himself, but where an in- 
dividual becomes a public character the case is different A 
statesman, author, artist or inventor who asks for and desires 
public recognition may be said to have surrendered his rights 
to the public. 

“ When anyone obtains a picture or photograph of such a 
person and there is no breach of contract or violation of con- 
fidence in the method by which it was obtained, he has the 



PHOTOGRAPH OF PUBLIC PERSON 379 

right to produce it, whether in a magazine, a newspaper or 
a book. 

“ It would be extending this right of protection too far to 
say that the general public can be prohibited from knowing 
the personal appearance of great public characters. Such 
characters may be said of their own volition to have dedicated 
to the public the right of any fair protraiture of themselves.” 

One who photc^raphs an actress in her public character, 
free of charge, with the understanding that she is to have as 
many photographs as she desires, to do with as she may please, 
is the owner of the photograph and the negative, and has the 
right to secure a copyright for his own exclusive benefit, 
and her right does not extend to making copies or permitting 
others to do so for their own benefit. When a person has a 
negative taken and photographs made, for pay in the usual 
course, the work is done for the person so procuring it to be 
done, and the negative, so far as it is a picture or capable of 
producing pictures of that person, and all the photographs so 
made from it briong to that person, and neither the artist 
nor anyone else has any right to make pictures from the 
negative, or to copy the photographs, if not otherwise pub- 
lished for anyone else. 


Pollard y. Photo Co., 40 Ch. Div., 345. 
Moore v. Rugg, 44 Mkiii., 28. 


§ 301. Picture of Pnblio Character. 

But when a person submits himself or herself as a public 
character to a photographer for the taking of a negative, and 
the making of photc^p^phs therefrom by the photographer, 
the negative and the right to make photographs from it be- 



380 PHOTOGRAPH OF PUBLIC PERSON 


long to him. He is the author and proprietor of the photo- 
graphy and may perfect the exclusive right to make copies, 
by cq>yright. 

Lithographic Co. v. Sarony, in U. S., 53. 

Falk V. Engraving Co., 48 Fed., 262. 

Press Pub. Co. v. Falk, 59 Fed., 324. 

For further illustrations of the rule as applied to public 
characters, see 

Marks v. Jaffa, 26 N. Y. Supr., 908. 

Atkinson v. Doherty, 80 N. W., 285. 

The right to produce the portrait or picture of a public > 
character after his death cannot be interfered with, when 
such is done in an appropriate manner. The individual right 
of privacy which any person has during life dies with the 
person, and any right of privacy which survives is a right 
pertaining to the living only. 


Schuyler y. Curtis, N. Y., 434. 



DAMAGES 




DAMAGES 


383 


CHAPTER XXII 

§ 302. Sunages Explained. 

When a theatrical contract is broken without legal justifi- 
cation the damages recoverable are (i) the value of the serv- 
ices rendered, and ( 2 ) such further damages as may be 
legally assessed for the breach, which must be such only as 
arise from facts existing at the actual time thereof. 

The damage must be the direct and natural result of the 
failure to perform and capable of proof. The contract gkier- 
ally discloses what injury has been occasioned and can prop- 
erly contain a clause measuring the amount thereof, which, if 
in the nature of liquidated damages, and not by way of 
penalty, will be enforced by the court. If the contract is 
silent on the question of damages, then evidence is required 
to show that a substantial loss or injury has been sustained, 
and unless capable of 1^^ proof there can be no assessment 
thereof. 

§ 303. Sami^^ Hot Oivea for Speoalative Iignty. 

The injury as a matter of proof must not be speculative, 
but the natural and probable outgrowth of the breach or such 
as can reasonably be supposed to have been contemplated 
by the parties when they made the contract. Outside of this 
the damages are considered too remote for the basis of an 
action for recovery. Not only must the injury exist, but 
evidence adduced which establishes with reasonable certainty 



DAMAGES 


384 

that the breach complained of was the proximate cause 
thereof; otherwise, though the loss be present and actual and 
can be measured, the lack of evidence from which it can be 
inferred allows merely nominal damages. 

The law will not render judgment against one unless it 
is clearly and specifically shown that the injury sued for 
caused with absolute certainty the exact amount of damages 
asked. 

For illustraticoi: a manager employs an artist to perform 
for two weeks at a weekly salary of $150. If shown that 
these services were rendered or that the manager prevented 
or did not require the artist to render them, then by refer- 
ence to the contract the injury can be specifically and abso- 
lutely shown as amounting to a damage of $300, neither more 
nor less, and is capable of the certain and definite proof re- 
quired. 

§ 304. Damages Hnst be Capable of Proof. 

The value of any labor performed may be considered and 
such damage allowed as may be legally assessed for the 
breach, which, however, is limited to facts existing at the 
time of the breach. 

Escott V. Cram, 13 Pittsb. Leg. J. (Pa.), 412. 

So where a performer cwitracts to appear for a certain time 
and fails to do so, prospective and provable profits may be 
recovered. It is not sufficient that they are prospective alone, 
for they must be provable as well. 

Savery v. Ingersoll, 46 Hun, N. Y., 176. 

I Sedgwick on Damages, § 192. 



PROBABLE PROFITS 


385 


§ 305. Probable Profits May be Shown by Past Profits. 

After breach the wronged party is entitled to recover as 
general damages the loss of profits which he would have 
realized, and evidence is admissible to prove past profits as a 
basis for the estimation of probable profits. 

Alfaro V. Davidson, 40 N. Y. Supr. Ct, 87. 

I 306. May Becover Provable Profits. 

The rule is well established that a party to a contract may 
recover as damages the loss of the benefits and gains he would 
have realized from its performance. 

This applies to damages sustained by failure to provide 
a theater for a performance, as well as a failure to provide a 
performance for a theater. The rule being the same and 
liiliited to provable and not merely speculative profits, what- 
ever can be established as a reasonable certainty affords suf- 
ficient basis on which to compute damages. 

Taylor v. Bradley, 39 N. Y., 129. 

Wakeman v. Wheeler, etc., Mfg. Co., loi N. Y., 205. 

Savery v. Ingersoll, 46 Hun, 176. 

EUser v. Brooks, S4 N. Y. Super. Ct, 73. 

§ 307. Damages for failure to Produce Play. 

The defendant owner of a theater agreed with plaintiff to 
produce a play written by him, on or before a certain date, 
and to pay him a stated sum for each performance. This 
the defendant failed to do, and in an action by the plaintiff 
for a breach of contract the defendant was held liable for 
damages only to the amount agreed to be paid for one per- 
formance. 

Schoaberg v. Cheney, 3 Hun (N. Y.), 677. 



386 COMPUTATION OF DAMAGES 
§ 308. Samages Must be Capable of Compatatioii. 

While a person is entitled to recover the profits he might 
have enjoyed had there been no breach, such must be capable 
of certainty of computation and not merely speculative. The 
damages collectible must be such as the parties must have 
reasonably supposed would result from a failure to perform. 
The law endeavors to so adjust matters that the wronged party 
shall obtain what he would have derived under a performance 
of his contract, neither more nor less. The awarding of dam- 
ages must always be an adjustment and never a punishment. 
Hence the necessity of proof of injury limited to the rule as 
stated. 

That under some unusual state of circumstances very large 
profits might have been made, is no fair test in arriving at 
a compensation by way of an award in damages ; such is mere 
speculation and not capable of direct, probable, or reasonably 
certain proof. The law abhors that which is speculative and 
uncertain, demanding a showing of certainty as opposed to 
conjecture. 

Merely speculative profits supposed to have been lost are 
not to be considered, as such are based upon imagination 
rather than certainty. 

McKnight v. Ratcliff, 44 Pa. St, 156. 

Bernstein v. Meech, 130 N. Y., 354. 

Leach V. N. Y., N. H. & H. R. R., 89 Hun, 380. 


§ 309. What Constitntes Profits. 

The value of the contract to a plaintiff is in the profits 
and in the amount he might have realized over the .Expenses 
attending its performance. The results which would in that 



PROFITS 


387 


respect have been produced if the contract had been per- 
formed are speculative and by no probative means ascertain- 
able, and not being susceptible of proof, are not the subject of 
recovery. While unable to prove the value of profits he might 
have made, he can recover the expenses incurred by him in 
preparing and providing for such performance. These ex- 
penses must have been legitimately incurred for the purposes 
of the performance of the contract, and it must be shown that 
with a view to such purpose, the plaintiff suffered a loss to that 
extent. Such expenses are deemed to be fairly within con- 
templation when the contract is made. 

Bernstein v. Meech, 130 N. Y., 354. 

Griffin v. Colver, 16 N. Y., 489. 

Taylor v. Bradley, 39 N. Y., 142. 

§ 310. Damages Cannot, However, Include the Prospective Profits 
of Performances WMcli Have Been Announced but Have 
Not Taken Place. 

A contract under seal was entered into between Arden of 
of the first part and Todd of the second part. The party of the 
first part engaged to play Thomas Keen and his supporting 
company at Northampton, Mass., for a period of one night. 
The contract contemplated a single theatrical performance in 
which the plaintff should bear the principal expenses of fur- 
nishing the place of entertainment, which was the Northamp- 
ton Academy of Music, and of furnishing the music, the 
necessary stage hands, the advertising, billposting and the 
scenery and mechanical effects called for in the scene and 
other plots furnished. The defendant was to furnish certain 
stage scenery, the costumes and the performers. The party 
of the first part was to have sevaity-five (75) per cent of the 



388 


PROSPECTIVE PROFITS 


gross receipts, and the party of the second part twenty-five 
(25) per cent. 

TTie defendant failed to play as agreed. The plaintiff had 
been to no expense and had not engaged or sold any tickets 
or seats to the play, but offered to prove by his own testimony, 
based upcm his experience in the management of his theater 
and knowledge of the cash receipts of similar plays at the 
theater under the same auspices, what the attendance would 
have been and what his share of the receipts under the con- 
tract in suit would have amounted to if the defendant had ful- 
filled his agreement. The plaintiff’s only other evidence on 
the subject of damages was to the effect that the defendant 
was an actor of high repute and popularity, especially in acting 
the tragedies of Shakespeare; that during the previous year 
the defendant had played in the said theater to a large house, 
and that Nprthampton is the seat of Smith College, an institu- 
tion attended by many hundred women students who largely 
patronize representations of Shakespearian plays as a means 
of education, and by their attendance insure a crowded hotase. 

The court held the facts put in evidence afforded no satis- 
fectory basis of comparison on which to reckon the profits, 
if any, which might have been received by the plaintiff if the 
defendant had kept the contract. There were too many ele- 
ments of uncertainty and conjecture to make it safe to rely 
upon opinions such as the plaintiff offered to give. Perform- 
ance was to be for a single night If a comparison was to be 
made it naturally would be with the defendant’s performance 
of the year before; but it did not appear that the supporting 
company was the same, and nothing appeared except that the 
year before the defendant played to a large house. 

In this case only nominal damages were awarded, for the 
reason that the actual and specific damages, if any, were not 
susceptible of absolute proof. There was nothing offered 



FRIGHT AND MENTAL ANGUISH 389 

in the way of evidence to definitely show that the plaintiff 
had expended in the direct line of the contract any definite 
amount or had undertaken or done anything of specific and 
actual ascertainment. His damage was merely problematical 
and a matter of opinion, and concerned things incapable of 
exact and positive proof. 

The law does not allow damages to be computed in such 
manner, and therefore nothing more than a nominal amount 
could be properly assessed. 

Todd V. Keen, 167 Mass., 157. 

Bernstein v. Meech, 130 N. Y., 354. 

The same rule allows nominal damages only, for the wrong- 
ful detention of personal property where no evidence is g^vea 
of actual ascertainable injury. 

Whitman v. Merrill, 125 Mass., 127. 

§ 311. Plight and Mental Anguish as Subjects for Damages. 

In actions which grow out of a breach of a contract, men- 
tal anguish and distress occasioned thereby (except in con- 
tracts to marry) cannot be made the basis for a recovery of 
damages. Such to be the basis of an action must be con- 
nected with a physical injury, which is purely a matter of tort 
and not contract. 

In Houston v. Freemansburg (61 Atl. Rep. 1022), the 
Pennsylvania Supreme Court declares definitely and finally 
that there can be no recovery of damages for fright or other 
mere mental suffering unconnected with physical injury. “ In 
the last half century the ingenuity of counsel, stimulated by 
the cupidity of clients and encouraged by the prejudices of 
juries, has expanded the action for negligence until it over- 
tops all others in frequency and importance, but it is only in 



390 


REVOCATION OF LICENSE 


the very end of that period that it has been stretched to the 
effort to cover so intangible, so untrustworthy, so illusory, 
and so speculative a cause of action as mere mental disturb- 
ance. It requires but a brief judicial experience to be con- 
vinced of the large proportion of exaggeration, and even of 
actual fraud, in the ordinary action for physical injuries from 
negligence; and if we opened the door to this new invention, 
the result would be great danger, if not disaster, to the cause 
of practical justice.” The decision is in line with the weight 
of authority. 

This rule is of importance in estimating damages for the 
revocation of a license when conferred by the sale of a ticket. 
Here a revocation is within the power of the management, 
and the act affords no remedy in trespass; the only action 
which can arise is one of contract, and hence mental anguish 
and distress occasioned thereby is no ground for damages. 

See anie, § 146. 

§ 312. Damages A ri s i n g from Bevooation of License to Enter 
as Conferred by Ti<&et of Admission. 

As the revocation of such license is at all times allowable, 
•no matter whether there is cause or not, no action of trespass 
will lie. 

The ticket of admission having been acquired as the result 
of a contract which calls for certain ben^ts to the licensee, 
such right cannot be violated and a breach of the contract 
occur without entitling the ticket-holder to recover in an action 
of contract the money paid for the ticket and all legal dam- 
ages which he has sustained on account thereof. 

McCrea v. Marsh, 12 Gray 21 1. 

Homer v. Nixon, 61 Atl. Rep., 1088. 

See ante, chapter on Tickets, § 146, et seq. 



HONEST MISTAKE 


391 


The question of damages depends much on the manner in 
which the revocation is accomplished, and greater injury nat- 
urally results where the ticket-holder is ejected in such way 
as to injure him bodily or hurt his good name, fame and 
credit. 

Drew V. Peer, 93 Pa. St, 324. 

Smith V. Leo, 92 Hun, 242. 


§ 313. Honest Uistake as Hit^rating Damages. 

The damages can only be compensatory, and hence limited 
to such injury as is actually sustained. The question of gfood 
faith or honest mistake in sellii^ seats will prevent the award 
of vindictive damages when the purchaser is deprived of 
their use because of a prior sale to another. 

Smith V. Leo, 92 Hun, 242. 

MacGowan v. Duff, 14 Daly, 315. 

§ 314. Measure of Danu^s Whae Property Has Been Acquired 
or Expenditures Made. 

Where, under a contract to perform a stipulated kind of 
service, one party is prevented from performance by the other 
party, the measure of damage is such an amount as the con- 
tract would have yielded had its terms been performed, and 
if the compensation has been agreed upon, that, of course, will 
be the measure of damages, for the plaintiff should not be 
allowed to recover for loss of services more than the amount 
he has contracted to receive for the same. If no provision 
of this kind appears in the contract, then it is a question of 
what loss has been occasioned by the failure to perform, which 
includes any reasonable expense sustained or incurred in pre- 
paring to perform the contract in the way of costumes, ma- 
terial or other personal property reasonably acquired for such 



392 


UNCERTAINTY OF AMOUNT 


specific use. This does not include things which are fit and 
useful for general purposes, but merely such as can be shown 
to have been acquired distinctly for and reasonably necessary 
to the performance of a particular contract, the loss of the 
value of which necessarily follows from its breach. 

For instance, recovery can be had for a costume designed 
and suitable for a particular part, but not general clothing, the 
use of which is not limited and which is of general value and 
use outside of the particular contract. The rule is narrowly 
drawn in this respect and allows only such damages as are 
reasonably proximate and naturally flow from the failure of 
performance. Damages are not punitive, and in theory are 
supposed to place the wronged party in a financial position 
equal to that provided for by the terms and inducements of 
his contract. 


Escott V. Cram, 13 Pittsb. Leg. J. (Pa.), 412. 

In an action for breach of contract for failure to employ 
an artist, damages cannot be given for the expense of a trip 
to the place where performance of the contract was to begin, 
unless it appears that such journey was undertaken in direct 
consequence of the contract, and consistently an expenditure 
necessitated and made in actual reliance upon the same. 

Benziger v. Miller, 50 Ala., 206. 

§ 316. Uncertainty of Amount No Bar to Becoveiy. 

“ When it is certain that damages have been caused by a 
breach of contract, and the only uncertainty is as to their 
amount, there can rarely be good reason for refusing, on ac- 
count of such uncertainty, any damages whatever for the 



PROXIMATE DAMAGES 


393 


breach. A person violating his contract should not be per- 
mitted entirely to escape liability, because the amount of the 
damages which he has caused is tmcertain. . , . Losses 
sustained and gains prevented are proper elements of dam- 
age. Most contracts are entered into with the view to future 
profits. ... As they are prospective, they must, to some 
extent, be uncertain and problematical, and yet on that ac- 
count a person complaining of breach of contract is not to be 
deprived of all remedy.” 

Wakeman v. Wheeler & Wilson Mfg. Co., loi N. Y., 205. 

§ 316. Must be Froziiiiate and the Natural Result of Defendant’s 
Wrong. 

Damages must be proximate, and the natural result of the 
wrong complained of. They must result from the wrongful 
act or are too remote. This is a matter clearly of evidence 
and properly left to a jury to ascertain. 

The damages resulting to a theatrical company through the 
delay of a train, owing to the particular character of their 
business, which was unknown to the railroad company, are too 
remote to be recoverable. 

Georgia R. R. Co v. Hayden, 71 Ga., 518. 

Gordon v. R. R. Co., 52 N. H., 596. 

' Noxon V. Hill, 2 Allen, 215. 

Ehrgott V. New York, 96 N. Y., 264. 

Hadley v. Baxendale, 9 Exch. R., 341. 

§ 817. Damages Under Contract Legally Terminated. 

When a contract for personal services is terminated for a 
legal cause, the party employed thereunder can only recover 
such amount as was due him under the terms of the contract 
at the time of his discharge. The contract may have been 



394 


DISASTER AS CAUSE 


tcmiinated by its dissolution, caused by the illness or death 
of one of the parties or by a breach justifying a discharge 
because of incompetency, drunkenness, immorality, disobedi- 
ence or impertinence; if the discharge was legally unjusti- 
fiable, damages are recoverable. These causes and the cases 
governing the same are discussed under their respective titles. 

See ante, § 243, et seq. 

The amount due may depend upon the question of whether 
the contract is in its terms entire or divisable. If entire, a 
complete performance is a condition precedent to a recovery 
of any amount ; otherwise of a contract of divisable nature. 

§ 318. Contract Terminated by Disability or by Act of Law. 

The illness of the employee, when of such a nature as to 
promise incapacity for some or an indefinite time, dissolves 
the contract, leaving the employer free to engage another in 
the place of such employee. The employee thus discharged 
by action of law has a right to recover for his services up 
to the time he actually ceased to render them and for no more. 

Prior V. Flagler, 13 Misc. (N. Y.), 115. 

Hubbard v. Belden, 27 Vt, 64s. 

See ante, § 216, et seq. 

When a contract is terminated by act of law, whether legis- 
lative, executive or judicial, the party is entitled to be paid 
for his services to that date only and has no further claim for 
damages against the party employing him. 

Pollard T. Schaffer, i Dallas, 21a 
' Ball V. Liney, 44 Barb., 505. 

People V. Globe Ins. Co., 91 N. Y., 174. 

See ante, § 210. 



LOSS OF PROPERTY 


395 


§ 319. Wrongful Bisohaige Goronnd for Damages. 

If the discharge of the employee is wrongful, he can obtain 
damages for such injury as results from his dismissal. The 
rule is stated in 

Everson v. Powers, 89 N. Y., 527. 

§ 320. loss of Property by Carrier. 

In case of the loss or destruction of property (not bag- 
gage) by a carrier, such must result from the carrier’s negli- 
gence and not from some intervening cause beyond its control. 

“ It is said to be an ancient and universal rule resting upon 
obvious reason and justice, that a wrongdoer shall be held 
responsible only for the proximate and not for the remote 
consequences of his actions (2 Parsons on Contracts, 456). 
The rule is not limited to cases in which special damages arise, 
but is applicable to every case in which damage results from 
a contract violated or an injurious act committed (2 Greenlf. 
Ev. § 256, 2 Parsons on Con. 457). And the liabilities of com- 
mon carriers, like persons in other occupations and pursuits, 
are regulated and governed by it 

Story on Bailments, 586. 

Angell on Carriers, 201. 

Morrison v. Davis, 20 Pa. St, 171. 


“ In the last named case, it is said there is nothing in the 
policy of the law relating to common carriers that calls for any 
different rule, as to consequential damages, to be applied to 
them.” 


Deimy v. New York Central R. Co., 13 Gray, 481. 



396 DUTY OF INJURED PARTY 

§ 321. Duty of Injured Party to Seduce Damages. 

When there occurs a breach of a contract the aggrieved 
party is bound to do all which is reasonably possible to reduce 
the damage. He cannot stand by and make no attempt to 
better the condition the breach places him in, for the law 
will not award damages for a loss he might have prevented ; 
thus the burden is on the claimant to show he did what any 
reasonable man would have done to arrest resulting injuries. 
The rule is founded on the best of reason, and prevents an 
abuse of legal redress. When one is employed by another 
for a specified term, which contract is unfulfilled for any 
reason not attributable to the party wronged, he should at 
once make reasonable efforts to obtain other employment, 
for the law does not encourage idleness. If that emplo 3 mient 
cannot be secured, he then may claim full compensation for 
the period, but if he earns anything in the interim, that is to 
be considered in reduction of his damages, for it would be 
manifestly unfair were he to have double or additional com- 
pensation over the contract rate. This requires of him only 
a reasonable effort according to the circumstances of the par- 
ticular case, and to this end he may go to reasonable expense 
in the effort. If this additional outlay is unsuccessful, and 
has been reasonably tmdertaken in an honest effort to reduce 
losses under the breach of contract, this element of expense 
may be considered as an additional element of damage in a 
suit for the injuries sustained, for it has been undertaken in 
good faith to reduce the injury and should not be an ad- 
ditional burden on the wronged party. 

French v. Vining, 102 Mass., 132. 

Loker v. Damon, 17 Pick., 284. 

Warren v. Stoddart, 105 U. S., 224. 



OFFER OF EMPLOYMENT 


397 

§ 322. Offer of Other Employment Can be Shown in hCit^ration 
of Damage. 

In an action brought by an actor for breach of a contract 
to employ him at a stated salary, it can be properly shown for 
the purposes of mitigation of damages that he had an oppor- 
tunity to play elsewhere, which offered engagement he did 
not accept. 


Howard v. Daly, 6i N. Y., 377. 

Everson v. Powers, 89 N. Y., 527. 

Parry v. American Opera Co., 19 Abb. N. Cas. (N. Y.), 
269. 

§ 323. Necessity of Seasonable Effort to Save Loss. 

/ 

“ The rule is, that where a party is entitled to the benefit 
of a contract, and can save himself from a loss arising from a 
breach of it at a trifling expense or with reasonable exertions, 
it is his duty to do it, and he can charge the delinquent with 
such damages only as with reasonable endeavors and expense 
he could not prevent” 

Warren v. Stoddart, 105 U. S., 224. 

Miller v. Mariner’s Church, 7 Me., 51. 

Russell V. Butterfield, 21 Wend., 300. 

§ 324. Under Clause “ Not to Eerfoim Elsewhere.” 

It would seem that a defendant cannot be permitted to 
offer in mitigation of damages proof that the plaintiff could 
have obtained an engagement elsewhere during’ the time he 
remained idle, if, by the terms of the contract, the plaintiff 
expressly bound himself “not to perform in any other the- 



398 REASONABLE EFFORT REQUIRED 

ater,” as he could not have accepted a position under another 
management without himself violating the contract. 

Coghlan v. Stetson, 19 Fed., 727. 

McGowan t. Duff, 14 Daly, 315. 

§ 325. The Seasonable Effort Se^uired. 

The reasonable effort to reduce such damage is necessarily- 
controlled by- the facts of each particular case, and is in effect 
what an ordinarily prudent man of business affairs would 
do. The diligence required is capable of no actual specific 
definition, as it is controlled by the immediate circumstances 
of the contract under consideration. What might be reason- 
able in one instance would be highly unreasonable in another, 
and any action undertaken in good faith and reasonably con- 
tinued is generally sufficient. The effort and not the result 
is the essential requirement 

Then again, the attitude or promises of the party who has 
broken the contract may excuse the wronged party from any 
attempt whatever in the required direction, as where an early 
resumption of the interfered-with employment is promised, 
or a placing in some other enterprise assured. Here the 
party prevents the other, or rather, excuses him, from the at- 
tempt to mitigate the injury and cannot complain of the 
results of his own interference. 

It is believed this rule will be readily understood, for it is, 
after all, merely a definition of what one m common justice 
and sense should undertake to do when actuated by sound 
business judgment. The authorities are universally agreed 
on this point and are only useful in showing the application 
of the rule to particular cases. 

Where the contract is for personal service of a particular 



UNNECESSARY EFFORT 


399 


kind, as in the capacity of an actor, singer, or musician, the 
law requires a reasonable attempt to procure a like employ- 
ment, but the required attempt is limited to the particular 
service contemplated by the contract, and is not extended to 
the procuring of any work which will yield compensation; 
although if some other and different service is obtained, the 
amount earned therefor should be considered in mitigation 
of the damages. 

Fuchs V. Koemer, 107 N. Y., 529. 

Howard v. Daly, 61 N. Y., 362. 

Nor is such employee required to accept work of a lower 
gfrade or to render a different species of service merely to 
earn something to reduce his claim for damages. 

Briscoe v. Litt, 19 Misc. N. Y., 5. 

§ 326. Unneoessaiy ox XTnsnccessf-al Effort. 

Where one was employed to furnish a concert and on 
arrival at the place found the hall closed because the defend- 
ant had decided that a severe storm would prevent the enter- 
tainment, it was held that no duty rested on the plaintiff to 
show that he sought emplo3unent elsewhere, for such require- 
ment would have been unreasonable and inconsistent. There 
was a special engagement and any attempt to mitigate the 
damage was out of the question. 

Hathaway v. Sabin, 63 Vt, 527. 

Under the rule which requires one after a wrongful dis- 
charge to seek other employment, such effort is sufficient if 
reasonably diligent, although entirely , unsuccessful. 



400 


ENTICING AWAY EMPLOYEE 


Leatherberry v. Odell, 7 Fed., 647. 
Shannon v. Comstock, 21 Wend., 457. 
Farrell v. School Dist, gS Mich., 43. 
Fuchs V. Koemer, 107 N. Y., 529. 


§ 327. Enticmg' Away Employer from Another’s Service. 

That an action at law will lie by a person against anyone 
who knowingly entices away his employee or wrongfully 
prevents him from rendering his services during the existence 
of that relation, is well settled law in America. 

The wrong consists in the act of persuasion by the defend- 
ant of a third party to break a contract existing between such 
third party and the plaintiff. It is a natural and probable 
consequence of such act of persuasion that the third party 
will break his contract. If it becomes the actual consequence, 
the right of action accrues. 

Walker v. Craiin, 107 Mass., 555. 

Bixby V. Dunlop, 56 N. H., 456. 

Jeter v. Blocker, 43 Ga., 331. 

Noice V. Brown, 39 N. J. L., 569. 

Note to Bowen v. Hall, 20 Am. L Reg. (N. S.), 587. 

That the action may be maintained, it is necessary to prove 
the relation of employer and employee, and the employee to 
have been at the time complained of in the actual employment 
of the plaintiff and under some form of contract or at ledst 
at will. If the employee on his own responsibility has wrong- 
fully left the employment and is then engaged by another, no 
action can arise, as there has been no enticing him away, and 
no wrong is attributable to the new employer. There, of 
course, should be no collusion between the parties, and the 
action can be maintained whenever one in the employment 



LIMITATION OF ACTION 


401 

of another is induced to leave it for the service of a new em- 
ployer. 

Butterfield v. Ashley, 2 Gray, 2S4- 

Coughey v. Smith, 47 N. Y., 250. 

Sargent v. Mathewson, 38 N. H., 54. 

§ 328. Time When Action May he Brong^ht for Samples. 

Where one party to a contract refuses to perform, the other 
party has immediate right of action and need not wait for the 
time of performance. 

There are frequent cases where contracts run for years, and 
it would be most unreasonable to require a party to wait the 
expiration of the term before he could institute an action 
against the delinquent person for damages. The right of 
action arises immediately on the refusal to perform, and what- 
ever arises afterwards or may arise in consequence of the time’s 
not having come, or not having expired, should be considered 
in estimating the damages. 

For instance, if in consequence of the discharge of an actor, 
or of the refusal of a manager to require or receive any of 
the contracted service which would take time, the actor has 
the opportunity, which he should endeavor to utilize, of en- 
gaging in other emplo3rment which can be shown in mitigation 
of damages. It is further competent to show any facts which 
have occurred subsequent to the commencement of the suit 
for the purpose of determining the amount of damages which 
the party can recover. 

Grau V. McVicker, 8 Biss., 13. 

Hochster v. DeLatour, 20 Eng. L. & R, 137. 

Traver v. Halsted, 23 Wend., 66. 

As to failure of common carrier to deliver a car containing 
scenery of a theatrical company, see 

Leach v. N. Y., N. H. & H. R. R., 89 Hun, 377. 




NOMINAL AND LIQUIDATED DAMAGES 




NOMINAL DAMAGES 


405 


CHAPTER XXIII 
§ 329. Nominal Danu^es. 

The common law only awards damages as a compensation 
for actual provable loss, but this rule has been gradually 
extended until it is now well and universally settled that 
where a leg^l right has been invaded and no evidence is 
obtainable showing actual loss, at least nominal damages may 
be recovered. 

This is on the ground that damages are not merely 
pecuniary in nature, for an invasion of another’s contractual 
right constitutes in and of itself an injury importing damage. 
So, regardless of evidence showing a positive and definite loss, 
or where the exact injury cannot be ascertained on a basis 
of offered evidence, or where the injury is so small as to be 
difficult of estimation, then, if it is shown that some injury 
has really been occasioned, the court will allow a finding for 
nominal damages. This award would seem to be the recog- 
nition of an invasion of right, by giving damages for such 
injury, rather than the assessment of damages for a definite 
and computable injury, and is not dependent on any proof 
of actual damage. 

§ 330. Definition of Nommal Damages. 

Nominal damages is a trifling sum awarded where a 
breach of duty or an infraction of the plaintiffs right is 
shown, but no serious loss is proved to have been sustained. 

Wherever an act injures another’s right, an action may be 



4o6 


NOMINAL DAMAGES 


maintained for an invasion of the right without proof of any 
specific injury, and wherever the breach of an agreement or 
the invasion of a right is established, the law infers some 
damage, and if none is shown, will award a trifling sum, as a 
penny, one cent, etc. 

Bouvier’s Law Diet, Tit, Nominal Damages. 

Todd V. Keene, 167 Mass., 157. 

McAneany v. Jewett, lo Allen, 15 1. 

Taylor v. Bradley, 39 N. Y., 129. 

Radloff v. Haase, 196 111 ., 365. 

Barnes v. Brown, 130 N. Y., 372. 

Smith V. Loag, 132 Pa. St, 301* 

13 Cyc. 14. 

§ 331. Applioation of Side. 

Where the defendant employed the plaintiff as an actress 
until the close of the season, her compensation to be one-half 
of the profits, and the failure of the enterprise caused the 
defendant to break his contract, while it was held improper 
to show receipts by plaintiff under an agreement made with 
a third party five years prior to the one with the defendant, 
which required similar services, and also improper to show 
the fact that plaintiff purchased certain costumes to be used 
by her, it not appearing that she was obligated by the con- 
tract so to do or that she suffered any loss thereby, and, al- 
though these facts disclosed no elements of damage, yet she 
was allowed to recover nominal damages, although had the 
defendant carried his agreement through as made, it would 
have resulted in a positive injury to her in a financial way. 
For even where a benefit has resulted from a wrong done, 
yet for the injury of the breach, nominal damages may be 
recovered, 

Ellser V. Brooks, 54 N. Y., Sup. Ct, 73. 

Pond V. Merrifield, 12 Cush., 181. 

Newcomb v. Wallace, 112 Mass., 25. 



LIQUIDATED DAMAGES 


407, 


§ 332. Iiq.iiidated Damages. 

The question of damages depends on the facts of each par- 
ticular case, and the application of the general rules is not 
without much difficulty and the resultant recovery often dis- 
appointing. The ascertained damages arrived at through 
the admissible evidence of injury seldom keep pace with the 
plaintiff’s expectation, especially where the breach concerns 
profits. This uncertainty, both of proof and recovery, makes 
clear the wisdom of settling such possible contention by a 
clause in the contract providing for agreed or liquidated 
damages in case the contract fails. Here is a provision for 
damages certain and understood, and the parties cannot dis- 
pute the provided measurement of the value of the breach. 

The advisability of this method is self-evident and is com- 
monly adopted in agreements concerning profits which are 
to be acquired. 

Mawson v. Leavitt, 37 N. Y. SuppL, 113&. 


§ 333. Clause in Contract Providing for liquidated Damages. 

Where, from the nature of a contract, the injury resulting 
therefrom, in the event of a breach, would be difficult to 
ascertain or impossible to estimate in a pecuniary sense, and 
where the parties to the agreement are in a position from 
their intimate knowledge of the subject matter to compute 
their probable damages, they may do so and provide therefor 
in the agreement for a specified amount which shall be treated 
as and for liquidated damages. 

As in many theatrical contracts the ascertainment of dam- 
ages for a breach thereof by either party would be difficult 
of proof or ascertainment, owing to the nature of the matter 



4o8 


LIQUIDATED DAMAGES 


contracted for, it is customary to insert a clause, providing 
that a failure to perform by either party the covenants in the 
contract shall give rise to the payment of a specified sum on 
demand as liquidated damages, and in this respect the law 
allows the parties to fix their own terms, provided the same 
are reasonable, and that some substantial damage resulted 
from the failure to perform the contract. 

Mawsoa v. Leavitt, 37 N. Y. Suppl., 1138. 

“ It is the duty of courts to enforce the lawful contracts of 
competent parties fairly made upon good consideration, and 
when, in such contracts, the parties have agreed to liquidate 
the damages resulting from a breach, the jury is bound to 
find the amount agreed. Whether in any particular instance 
the sum named is to be regarded as a penalty or as liquidated 
damages will depend upon the intent of the parties as gathered 
from the terms of the whole contract applied to the subject 
matter. The mere use of the words ‘ liquidated damages ’ is 
not decisive. In applying the rules of interpretation, forfeit- 
ures are not favored, and, if possible, the sum named is treated 
as a penalty, because then the defendant is permitted to show 
the actual damage:” 

Leary v. Laflin, loi Mass., 334. 

§ 334. Constrnotioit of Clause for liquidated Bamages. 

“ The true mode of arriving at a just interpretation of the 
stipulation for damages is to take into view the subject matter 
of the contract, the nature of the agreements into which the 
parties have respectively entered, and the surrounding circum- 
stances, in order to ascertain whether the intention was to pro- 



LIQUIDATED DAMAGES 


409 


vide for a fixed measure of damages or only to stipulate for 
a penalty. Where the intention is clear that the entire sum 
should be paid it is the duty of the court to enforce the agree- 
ment, however hard or inequitable the exaction may seem. If 
the parties go to the extent of making an agreement in clear 
and explicit terms to pay a certain sum on the non-perform- 
ance of a covenant to pay a smaller sum, it is impossible to 
avoid giving effect to such a contract. It is only when the 
whole instrument is taken together and the intention is left 
doubtful that it becomes necessary to resort to the established 
rules of construction in order to determine on which side 
of the line a particular stipulation falls. Some of the ad- 
judged cases have gone very far in applying these rules, so 
as to defeat the clear and unequivocal language of the par- 
ticular stipulation for the payment of damages in order to 
carry out the plain general intent of the parties as indicated 
by other parts of the instrument.” 

Lynde v. Thompson, 2 Allen, 456. 

Murdock Martin, 147 Fa. St, 203. 

Bagley v. Peddie, 16 N. Y., 469. 

Meyer v. Estes, 164 Mass., 457. 

Gay Mfg. Co. v. Camp, 65, Fed., 794. 

Powell V. Burroughs, 54 Pa. St, 329. 

§ 335. TTnder Clause for liquidated Damages No Proof of Danube 
is Bequired. 

In an action to recover liquidated damages provided for- 
in a contract, there is no necessity of proving that any actual 
damages have been sustained. 

Stanley v. Montgomery, 102 Ind., 102. 

Gibson v. Oliver, 158 Pa. St, 277. 

Watson V. Russell, 149 N. Y., 388. 



410 LIQUIDATED DAMAGES 

§ 336 . Computed Damages Mnst be Fair and Consistent. 

The provision for liquidated damages will be recognized 
and enforced by the courts whenever it is fair and consist- 
ent with the idea of liquidated or computed damages. If it 
appears to be merely a penalty in the nature of a punishment 
rather than a reasonable adjustment of a damage contemplated 
on account of a possible breach, the courts will not enforce 
such an unjustifiable hardship. Here the matter ceases to be 
compensation for an injury, and becomes a penalty. The 
reasonableness of the amount stipulated according to the cir- 
cumstances of the particular case governs, and each contract 
is necessarily considered by itself. 

In framing such a clause and in fixing the amount this rule 
should be borne in mind. It must not assume the proportions 
of a penalty or be other than a consistently fair compensation. 

In Mawson v. Leavitt, 37 N. Y. Supp. R., 1138, it was 
held that a provision in a contract by which defendant agreed' 
to furnish his theater for a week and plaintiff agreed to fur- 
nish his theatrical company and play in the theater for said 
week, proceeds to be divided, and that on any violation of the 
mentioned covenants by either party the sum of $500 on 
demand as liquidated damages should become immediately 
due, is not a covenant for a penalty, but for liquidated damages, 
since it was competent for the parties to fix their liability in a 
reasonable amount and that a recovery of the same could be 
had. 


McCaull V. Braham, 16 Fed., 37. 

Mapleson v. Del Puente, 13 Abb. N. Cas., I44. 
Hahn v. Concordia Soc., Md., 460, 



LIQUIDATED DAMAGES 41 1 

§ 337. Words Liqmdated Damages ” Need Not be Dsed. 

Whether the term liquidated damages is used or not, the 
purpose of the court is to ascertain, if possible, the actual 
damages sustained, and if this is possible, or if the amount of 
liquidated damages mentioned in the contract is exorbitant, 
the court will construe the amount as a penalty, rather than as 
liquidated damages. 


Radloff V. Haase, 196 111 ., 365. 
Brinkerhoff v. Alp, 35 Barb., 27. 
Jaquith v. Hudson, 5 Mich., 123. 
Smith V. Bergengren, 153 Mass., 236. 


§ 338. A Fine Not Liquidated Damages. 

A fine, when provided as such and for penalty purposes, 
will not be enforced by the court. See ante, § 247. 


Clement v. Cash, 21 N. Y., 253. 
Bradstreet v. Baker, 14 R. I., 546. 




REMEDIES PROVIDED IN EQUITY 

PREVENTION OF IMPENDING INJURY 

PROTECTION OF COMMON-LAW AND COPYRIGHT 
TITLE 

SPECIFIC PERFORMANCE OF PERSONAL CON- 
TRACTS 

RESTRAINT OF ARTIST FROM PERFORMING ELSE- 
WHERE 

THE ENGLISH AND THE AMERICAN RULE 

SERVICES OF A UNIQUE AND EXTRAORDINARY 
NATURE 

RESTRAINT OF USE OF MISLEADING ADVERTISE- 
MENTS 

INJUNCTION AGAINST AN IMMORAL SHOW 

INJUNCTION TO PREVENT NUISANCE 

INJUNCTION TO PREVENT WRONGFUL USE OF 
PHOTOGRAPHS, LITHOGRAPHS AND WOOD 
CUTS 

PREVENTION OF CONTINUED BREACHES OF 
CONTRACT, AND WRONGFUL REMOVAL OF 
FIXTURES 

PARTIES TO PROCEEDINGS IN EQUITY 

NOTICE OF INJUNCTION 




REMEDIES BY INJUNCTION 


415 


CHAPTER XXIV 

g 339. Bemedies by Injimctioa. 

The doctrine of injunction, an important and separate 
branch of jurisprudence, cannot here be discussed at lengfth, 
and reference is only made to certain specific instances of 
equitable remedy and relief founded thereon as applicable 
to the subject matter of this work. The process of injunction, 
peculiarly serviceable in preventing wrongs and preserving 
rights, is well adapted to the many questions which arise from 
the breach of theatrical contracts, and matters concerning 
public amusements. The deficiency of the common law in 
providing adequate remedies in such matters is apparent, and 
equity here prevents threatened or irreparable injury. 

It should be remembered that an injunction does not issue, 
as a matter of right, but is always within the sound judicial 
determination of the court, and when issued it rests upon such 
terms and conditions as the court sees fit to decree. It is 
equally within the same discretionary power to modify, dis- 
solve or continue the injunction as justice may require, and the 
court can compel a party to furnish a bond of indemnity for 
protection against loss and costs occasioned by the granting or 
dissolving of an injunction 

Richardson’s Notes on Equity PI. & Fr., 121. 

Ashbumer’s Principles of Equity, 476. 

2 Daniell’s Ch. PI. & Pr., 1666. 

Foster v. Goodrich, 127 Mass., 176. 



4i6 impending INJURY 

§ 340. Equity PreTeuts Impeuding Injury. 

Equity prevents impending injury which cannot be ade- 
quately compensated for in an action at law, and accomplishes 
this by injunction. 

The threatened injury must be actual and impending, and 
unless it appears to be of a substantial and positive nature the 
court will not interfere. An injunction will not issue to pre- 
vent acts which, though irregular and unauthorized, are such 
as can have no injurious results. The damage must be actual 
and impending and not a mere threat or statement that a cer- 
tain thing will be done. Some clear necessity must be shown 
for affording the protection sought and not a vague and in- 
definite reason. 

The injunction issues to prevent an irreparable injury to 
the complainant, and that such is actually impending must be 
shown as a basis for the intervention of the court. It is not 
necessary to show that damages have already resulted, but 
facts must appear of sufficient importance to warrant a fair 
inference that damage is threatened and impending. 

A large variety of matters are of such peculiar nature as 
to lose their value when wrongly used or infringed, for no 
rule of damage could provide adequate compensation for their 
invasion. Mere matters of injury which can be ascertained 
and adequately compensated for by an award of damages are 
left to an action at law for adjustment. Damage sustained 
by the wrongful use of a dramatic or musical composition, 
the avoidance of a professional contract, and the refusal to 
abide by the terms of some definite agreement, are matters 
which are generally better adjusted in equity than at law, as 
the injury is serious and material and not possible of adequate 
compensation. There may be a plain action at law which 
is not adequate or susceptible of measurement in damages. 



EQUITY JURISDICTION 417 

An injunction will not be granted unless the plaintiff discloses 
a case which is clearly within the jurisdiction of equitable 
relief. Equity requires a full and complete disclosure of all 
the material facts, and grants no relief unless these clearly 
appear, and then only in the court’s discretion. Chancery 
follows this rule strictly, and the allegations and proof must 
satisfy it. 


Spelling's Injunctions and Other Extraordinary Remedies, 
§ 12 (2d Ed.). 

Rogers v. Michigan, S. & N. I. R. Co., 28 Barb., 539. 

Bond V. Wool, 107 N. C., 139. 

Platt V Jones, 49 N. Y. Supr. Ct, 279. 

N. y. Cent. & H. R. Co. v. Haffen, 35 N. Y. S., 806. 

§ 341. Equity Gauuot Frerent Orunes or Assess Damages for a 
Tort. 

Equity cannot be invoked to prevent a wrong in the nature 
of a crime, and an immoral contract can have no protection 
in equity. The relief sought must be clearly against an in- 
fraction of a civil and legal right. 

“It is well known that equity has, in general, no juris- 
diction to restrain the commission of crimes, or to assess dam- 
ages for torts already committed. Courts of equity often 
protect property from threatened injury when the rights of 
property are equitable, or when, although the rights are legal, 
the civil and criminal remedies at common law are not 
adequate.” 


Worthington v. Waring, 157 Mass., 421. 



4i8 allegations REQUIRED 

§ 342. Facts Entitlii^ to Belief llnst be Clear and Explicitly 
Stated. 

The facts showing the ground of action must be clear, posi- 
tive, absolute and explicitly stated in the bill of complaint, and 
the one seeking the remedy must be without fault on his part, 
for he who seeks equity must do equity, and cannot compel 
another to do right when he is in the wrong. 

The remedy at law which will preclude relief in equity 
must be as practical and dficient to the ends of justice and its 
prompt administration as the remedy in equity, and as satis- 
factory. 

Holden v. Hoyt, 134 Mass., 185. 

Rice V. Winslow, 182 Mass., 273. 

Not only must there be no plain and adequate remedy at 
law, but to entitle the plaintiff to relief the injury of which 
he complains must be certain and substantial and not slight 
or theoretical, and such fact must appear in the bill of 
complaint. 

Downing v. Elliott, 182 Mass., 28. 

Chicago Gen. R. Co. v. Chicago, etc., R. Co., 181 111 ., 605. 


§ 343. An Adequate Bemedy at Law Prevents Intervention of 
Equity. 

" In order to sustain an objection to the jurisdiction of a 
court of equity on the ground that there is a remedy at law, 
it must appear that no substantial and essential part of the 
case is within the appropriate jurisdiction of that court. For 
if any part of the case is within such appropriate jurisdiction 
of a court of equity, that court, having taken cognizance of 



EQUITY JURISDICTION 419 

the case for such part, will retain it and determine the whole 
case.” 

Richardson’s notes on Equity Pleading and Practice, p. 3, 
and cases cited and note. 

“ When equity has jurisdiction for one puipose, it will go 
on and do complete justice between the parties, and will not 
send them to a court of law because part of the relief may be 
purely legal relief.” 

Holden V. Holden, 24 III App., 117. 

§ 344. Priority of Servioe SeteimineB Jurisdictioii. 

The court, whose process is first served, obtains jurisdiction 
of all questions which flow out of the subject matter, and if 
an action at law has been commenced, equity will not take 
subsequent jurisdiction. Equity is opposed to multiplicity of 
actions and seeks to control all controversies and parties in 
one proceeding. It will not assume jurisdiction over a part 
of an issue or some one person when substantial justice can 
only be arrived at by a hearing of the whole issue and all 
persons concerned therein. 

U. Mut. Life Ins. Co. v. Univ. of Chicago, 6 Fed, 443. 
Worthington v. Warbg, 157 Mass., 421, 429. 

Nash V. McCathern, 183 Mass., 345. 

§ 345. Benefit of Bight Conferred in Equity Contrasted with 
Bemedy at Law. 

Many infractions of legal rights, while giving rise to actions 
for damages, would receive meager practical relief if no other 
protection was available. 



420 VALUE OF EQUITABLE REMEDY 

The impecunious manager who pirates another’s play or 
opera is often financially unable to satisfy a judgment for 
damages, and if he was, the amount recovered would seldom 
reflect the real loss such injury occasions, it being a matter 
incapable of adequate money compensation. 

A play is property of a peculiar nature; its handling and 
production, its novelty, its success in some well-known locality, 
its favorable comments, and originality, all contribute to make 
its peculiar and indefinable value. 

The manager often spends large sums before his production 
is accepted by the public, his experiments in cast, scenery, 
situations and advertising are of great expense, and he looks 
to its future success for financial profit. To pirate his play, 
allow its use by others and merely give an action for the in- 
jury sustained would be manifestly unfair, for no rule of 
damage could adequately measure the real injury done, as 
it is incapable of any absolute, certain proof. 

So vague and indefinable is the question of a successful 
production, a matter dependent on so much which is prob- 
lematical, that no rule of law can be invoked satisfactory in 
its measurement of actual injury and fit compensation. 

The rule of damage in an action at law is one which must 
be entirely arrived at by actual definite proof; it is not a 
matter of speculation or belief; no damage is assessable un- 
less distinctly established by evidence. It must be capable of 
definite ascertainment. Such rigpd measurement applied to 
the vague and intangible questions of dramatic rights and 
their invasion affords little satisfaction and leaves many real 
sources of injury uncompensated for. No other rule at law 
can obtain; its very inadequacy gives rise to the protective 
measure of injunction in chancery. 

This, at least, averts or stops a wrong and affords more 



UNAUTHORIZED USE OF PLAY 


421 


nearly ideal justice than an inadequate assessment of damages 
under the common-law rule. The owner does not have to sub- 
mit to a taking of his property and await the awarding of dam- 
ages by a law court, but can avert injury by securing an in- 
junction, whereby his rights will be protected. 


§ 34:6. An Injunction Will Issue to Prevent the Unauthorized 
Use of a Dramatic or Musical Composition Whether the Same 
is Copyrighted or Not. 

An injunction will issue to restrain any unauthorized pro- 
duction of a dramatic or musical composition whether the 
same is copyrighted or not. In the case of a composition 
which has been duly copyrighted the jurisdiction is in the 
Federal Courts, as they have sole supervision over such 
matters; in other instances the State courts have jurisdiction. 

Before issuing an injunction the court requires that the 
complainant prove an absolute and complete title, that the 
composition is original, that an unauthorized use is threat- 
ened and that the work is not immoral or indecent. This pro- 
tection extends, not only to a play, opera or musical compo- 
sition, but to any original idea which forms a part of matter 
not original. This question is elaborately and clearly ex- 
plained in the opinion of Mr. Justice Blatchford, in the case 
of Daly V. Palmer, 6 Blatchf. 256. 

See ante, Chapter 5, as to title in dramatic and musical com- 
positions at common law and under copyright. 

All matters of dramatic or musical composition which are 
either capable of common-law ownership or copyright pro- 
tection can be protected from wrongful invasion by injunction. 

The remedy is allowed on the clear ground of preventing 
an injury for which the common law cannot adequately com- 



422 PREVENTION OF WRONGFUL USE 


pensate in an allowance for damages. The 'remedy, provid- 
ing the elements of threatened invasion, title, originality and 
decency exist, is well established. The bill of complaint 
should show on its face the elements of title, originality, 
wrongful invasion and legality of subject matter, all being 
matters of necessary allegation. 


Martinette v. Maguire, i Abb. (U. S.), 356. 

Shook V. Daly, 49 How. Pr., 366. 

Daly V. Palmer, 6 Blatchf., 256. 

Reade v. Lacey, Johns. & H., 526. 

This remedy is not only available to the author, but to his 
vendee, assignee, licensee, or a part owner. 

Palmer v. DeWitt, 47 N. Y., 532. 

Crowe V. Aiken, 2 Biss., 208. 

Aronson v. Fleckenstein, 28 Fed., 75. 

^Good faith in using the manuscript, even though the de- 
fendant believes himself the actual owner, is no defense to 
this process for relief against an unauthorized use. 

Shook V. Daly, 49 How. Pr., 366, 

§ 347. Fnblicatioii or Abandonment a Defense. 

There is no relief granted, however, if it can be shown that 
the composition has been legally published or abandoned and 
thereby dedicated to the public. Such is an absolute defense. 
Exhibiting a manuscript or composition to others is not 
deemed sufficient to constitute a publication which will de- 
prive the author of his exclusive right. 


French v. MacGuire, 55 How. Pr., 471. 



PROOF OF TITLE ' NECESSARY 423 

To entitle the plaintiff to this remedy, he must allege and 
prove his title or right to use the play, opera, production or 
device (his common-law or copyright title), and that it has 
never been so published, dedicated or abandoned as to make it 
public property, and that the same is original and moral. 
Certainty of allegation and proof in these respects is vital, 
otherwise the relief sought will be denied. For cases in- 
volving this remedy see ante, § 65 et seq. 

§ 348. Kecesrity of Proof of Title as a Basis for Obtaining Bdief. 

Where protection is sought in equity for a dramatic or 
musical composition, the plaintiff must prove his title, either 
as author or proprietor, and the originality of the matter 
sought to be protected, for if the defendant can show that the 
composition is a mere copy, or imitation of another’s work, 
either as a whole or in essential parts, the court will consider 
the parties in pari delicto and refuse to interfere. The com- 
plainant must show his exclusive right to the composition, 
which must be original. 

Martinette v. Magfuire, i Abb. (U. S.), 356. 

Martinette v. Maguire, i Deady, 216. 

Ante, § 52. 

§ 349. An Injunction Will Issue to Prevent a Party to a Contract 
Wherein he has Stipulated to Bender his Services to the Plain- 
tiff from Bendering Like Services Elsewhere During the Period 
Agreed Upon, but Specific Performance of the Agreement 
Will Hot be Decreed. 

Where one is under contract to act, appear, perform or sing, 
subject to the direction of another, if allowed to break such 
agreement the manager would be left to an action of law 



4^4 


RESTRAINT OF SERVICES 


which provides a totally inadequate remedy in damages. In 
instances of this kind the personality and reputation of the 
performer is the matter of contract value, and his failure to 
appear works irreparable injury for which no rule of legal 
damage can compensate in any degree of fairness. For this 
reason of inadequacy of legal redress, equity affords relief in 
certain instances by the process of injunction. 

The wrongdoer is prevented by an order of court from ren- 
dering to another what he is under contract to do for the 
plaintiff ; this, however, only where the services which are the 
subject of the agreement, require particular skill or are unique 
or extraordinary in their nature. Ordinary or usual abilities 
are easily procured, and whatever damage has been occasioned 
by the loss of such can be adequately compensated for by pro- 
cess at law. Equity does not interfere in such instances and 
will grant relief only where the service depends on the ability, 
skill, fitness or educational training of the person in question. 
This fitness, whether physical or mental, must be of an ex- 
traordinary nature, which is of such a peculiar value as to be 
impossible of estimate by any recognized standard of values. 

The purely physical might well embrace the services of a 
dwarf, giant or so-called freak; while the mental, the services 
of a singer, player or actor of well-known ability, which 
ability has been recognized by the public, thereby establishing 
a unique or peculiar value in the same. 

The rule calls for some personal or mental attribute which 
is distinct and not possessed by the general run of individuals 
in the particular class of service in question. This naturally 
follows from the reason of the rule, which merely seeks to 
prevent a wroi^ which would result in irreparable loss. It 
is not enough to show a loss which would naturally result from 
the breach of contract, for to adjust such common instances, 



RESTRAINT OF SERVICES 425 

actions at law were devised; the loss must mean more and 
threaten an injury beyond the usual calculation of damages. 
And as equity does not allow its processes to deprive one 
of work unnecessarily, the complainant must show that he 
is in a position to utilize and employ the service required, and 
is ready to avail himself thereof. 

The injunction is granted to prevent the breach of a cove- 
nant not to perform an act of a personal character or relating 
to personal property, only on the ground that the perform- 
ance of the wrongful act would produce irreparable damage. 
Consequently, when no damage can result, there can be no 
injunction. And if the complainant has no place in active 
operation where the artist can appear or cannot show whereby 
he is losing custom, it follows that no damages are resulting, 
or can be anticipated to result from the act which it is sought 
to enjoin, for which reason an injunction will not issue. 

The I 1 . of this remedy must appear in every instance, 

also the kind and species of service involved in the issue, and 
its peculiar elements, physical or mental. Its extraordinary 
nature cannot be too* clearly or specifically alleged in asking 
for equitable relief. Such relief is naturally more adequate 
than a mere assessment of damages, for it, by preventing a 
rendering of service elsewhere, compels an adjustment. Equity 
will not concern itself to prevent the rendering of ordinary or 
usual service, for such is capable of easy procurement and its 
loss adequately compensated for in money. 

De Pol V. Sohlke, 7 Robt. (N. Y.), 280. 

Burton v. Marshall, 4 Gill, (Md.), 487. 


See ante, § 235, Personal Services. 



426 SPECIFIC PERFORMANCE 

§ 350. There can be Ho Specific Ferfoimance of a Personal Con- 
tract. 

The relation established by the contract is of such a per- 
sonal character that a specific performance of the contract 
itself could not be decreed as against an unwilling party with 
any chance of ultimate or real satisfaction. Here specific 
performance does not lie, as the contract is too personal in its 
nature to be under the specific orders and continued direction 
of a court in equity. 

It was formerly laid down that where the positive part of 
an executory contract could not be performed by the court, 
it would not enforce the negative by injunction. For exam- 
ple, where an actor had agreed to act at a certain theater, that 
being a contract which the court could not enforce, it refused 
to restrain him by injunction from acting elsewhere (Kemble 
V. Kean, 6 Sin]., 333), and where there was a contract for hir- 
ing and exclusive service during seven years, and for partner- 
ship at the end of that time on such terms as should be 
mutually agreed upon, the contract being one which the court 
could not perform as a whole, it refused to enforce by injunc- 
tion the covenant for exclusive service. (Kimberly v. Jen- 
nings, 6 Sim., 340.) 

Frye on Specific Performance, § 833. 


§ 361. That an Artist can be Eestrained from Ferformiitg Else- 
where is Well Settled Under Certain Contracts. 

This question was discussed in the case of Lumley v. Wag- 
ner, I DeGex, M. & G., 604, and is generally referred to as 
establishing the right of a manager to restrain by injunction 
a performer from acting elsewhere, provided the contract con- 



PERFORMING ELSEWHERE 


427 


tains a negative clause. Johanna Wagner and father entered 
into a contract with plaintiff to sing twice a week during a 
season of three months, at a salary of $400 a month, to which 
was added an agreement that defendant “engaged herself 
not to use her talents at any other theater, etc., without the 
written consent of the plaintiff.” The defendant made an 
engagement to perform at another theater, and an injunction 
being asked was obtained. The Lord Chancellor cited the 
case of Kemble v. Kean, 6 Sim., 333, which, like Kimberly v. 
Jennings, 6 Sim., 340, denied an injunction in a like case, and 
said : “ I am bound to say that in my opinion that case was 
wrongly decided and cannot be maintained.” 

The next English case of importance was Fechter v. 
Montgomery, 33 Beav., 22, which, though on different facts, 
was decided in line with Lumley v. Wagner. 

The case of Montague v. Flockton, 16 L. R. Eq., 189, 
firmly established the doctrine and is undoubtedly the strong- 
est case on this subject. There the defendant accepted an 
engagement to perform at the Globe Theater, London, in 
the following terms : “ I accept the engagement for the Globe 
Theater, under the management of H. J. Montague, at 
a weekly salary of £5, and if required to go into the prov- 
inces, traveling expenses paid and twenty per cent on my 
London salary. Line of business, old man and character busi- 
ness.” A renewal contract of the above was made at the 
expiration of the first The court said in granting an injunc- 
tion : “ It appears to me that an engagement to perform for 
nine months at theater A is a contract not to perform at theater 
B, or any other theater whatever.” 



428 THE RULE IN AMERICA 

I 352. The Buie in America. 

In America the decisions are numerous and the earlier ones 
somewhat conflicting, and do not generally follow Montague 
V. Flockton. The later decisions have only granted an in- 
junction under contracts containing a negative clause not to 
perform elsewhere or language clearly showing such an 
agreement, and refuse to imply such clause. 

In some of the earlier cases, where the contracts contained 
such negative stipulation, an injunction was denied; the 
reasons for such decisions were on different phases of the 
agreements, and on examination do not really affect the sound- 
ness of the later and more generally accepted rule. 

Sanquirico v. Benedetti, i Barb., 315. 

Hamblin v. Dinneford, 2 Edw. Ch., 529. 

DePol v. Sohlke, 7 Robt. (N. Y.), 280. 

Burton V. Marshall, 4 Gill (Md.), 487. 

Butler V. Galletti, 2i How. Pr. (N. Y.), 465. 

Contra, however, in 

Hayes v. Willis, ii Abb. Pr. (N. S.), 167. 

DaJy v. Smith, 49 How. Pr. (N. Y.), 150. 

§ 358. Ike Buie in England. 

In accordance with the now established English rule fol- 
lowing Lumley v. Wagner an injunction will be granted 
on a contract for personal services to prevent performance 
elsewhere, whether the agreement contains a negative stipu- 
lation to perform or not, and the courts will restrain an artist 
from performing elsewhere during the period of the first en- 
gagement. Formerly the reverse of this rule obtained, and 
contracts for personal service, notwithstanding the difficulty 



GENERAL RULE 


429 

of their being carried out, were specifically enforced under 
the decree of the court. 

Ball V. Coggs, 1 Bro. P. C, 140. 

Wallis V. Day, 2 M. & W., 273. 

East India Co. v. Vincent, 2 Atk., 83. 

§ 354. The Bale denerally. 

The rule now, however, is well settled, both in England 
and America, that specific performance of a contract, in- 
volving personal service, special ability or confidence, will not 
be decreed, because the execution of such contracts depends 
upon the skill, volition and fidelity of the person who has 
been engaged, and is therefore a matter of too much detail 
for the court to supervise and carry out under a decree for 
specific performance. 

Clark V. Price, 2 J. Wills, 157. 

Lumley v. Wagner, i De G. M. & G., 604. 

Fredricks v. Mayer, 13 How. Pr., 566. 

Butler V. Galetti, 21 Id., 465. 

Ikerd v. Beavers, 106 Ind., 483. 

Mowers v. Fogg, 45 N. J. Eq., 120. 

Sloan V. Williams, 138 111 ., 43. 

DeRivafinoli v. Corsetti, 4 Paige, 264. 

According to the English rule and a very few early Ameri- 
can decisions, where the contract amounts to an undertaking, 
express or implied, from the general wording of the agree- 
ment, not to perform such services for anyone else, equity 
will enjoin the party from engaging in such competitive serv- 
ice. Following the doctrine of 

Lumley v. Wagner, i De G. M. & G, 604; 16 Jur., 871. 

Webster v. Dillon, 5 W. R., 867. 

Montague v. Flockton, L. R., 16 Eq., 189. 

Whitewood Chemical Co. v. Hardman, 2 Ch., 416. 

Duff V. Russell, 14 N. Y. S., 134* 

Fredricks v. Mayer, 13 How. Pr. (N. Y.), 566. 



430 


COMPETING SERVICE 


Under the prevailing American rule, where one has en- 
gaged to perform certain specified services for another and 
expressly covenants not to enter any competing service, 
although equity cannot compel a specific performance of such 
services, it will, however, enjoin him from entering any com- 
peting service and doing for another that which he should 
do for the complainant under the contract. 

Whitewood Chemical Co. v. Hardman, 2 Ch. 416. 

Burton v. Marshall, 4 Gill (Md.), 460. 

Metropolitan Exhibition Co. v. Ward, 9 N. Y. Suppl., 779. 

Hahn v. Concordia Society, 42 Md., 460. 

Greenhood on Public Policy, § 761. 

Cort V, Lassard, 18 Oregon, 221. 

McCaull V. Braham, 16 Fed., 37, 

Duff V. Russell, 133 N. Y., 678. 

Philadelphia Base Ball Club v. Lajoie, 202 Pa. St, 210. 

While several English cases support the view that an en- 
gagement not to serve elsewhere is fairly to be implied from 
a contract in general terms, to perform under one manager 
or at one establishment, American judges have generally 
refused to interfere unless there was an express negative 
stipulation concerning the service sought to be enjoined. In 
other words, in this country a simple engagement to serve 
leaves the employee quite at liberty to take other service, 
provided he faithfully performs the first engagement. See 
note to McGiull v. Braham, citing 

Burton v. Marshall, 4 Gill, 4S7. 

Butler V. Galletti, 21 How. Pr., 465. 

Wallace v. DeYoung, 98 111 ., 638. 


See ante, § 235. 

For cases where the contract of the parties, by liquidating 



WRONGFUL USE OF PREMISES 


431 

the damages or otherwise, precludes this right of injunction, 
see 

McCaull V. Braham, 16 Fed, 37. 

§ 355. Joinder of Second Employer Advisable. 

“ Several of the cases indicate that it is proper to join the 
second employer as co-defendant, and to draw the injunction 
so as in terms to forbid him to employ the chief defendant, 
as well as prohibit the latter from performing.” 

Note to McCaull v. Braham, i6 Fed., 48. 

Qarke v. Price, 2 Wils. Ch., 157. 

Lumley v. Wagner, i DeGex M. & G., 604. 

Burton v. Marshall, 4 Gill, 487. 

§ 356. An Injunction Will Issue to Prevent the Wroni^ul TTse 
of Premises. 

An injunction will be granted to restrain a lessee from 
using premises for other than the stipulated and agreed pur- 
poses or from carrying on a business therein prohibited by 
the terms of the agreement. 

Electric City Land, etc., Co. v. West Ridge Coal Co., 187 
Pa. St, soo. 

Hall V. Solomon, 61 Conn., 476. 

Haskell v. Wright, 23 N. J. Eq., 389. 

22 Cyc., 859, 860, 861. 

§ 367. An Injunction Will Issue to Prevent the Seduction of an 
Employee from Another’s Service. 

While an action at law will lie against anyone who know- 
ingly induces an employee to leave the service of another, 
such remedy for damages may in a particular instance prove 



432 


KIND OF SERVICES REQUIRED 


inadequate, since irreparable injury can be caused by enticing 
away another’s employee or skilled artist at an important 
period, by which the employer’s business may be stopped or 
at least greatly embarrassed in its operation. An artist or 
star may be under contract for the season, the supporting 
company engaged and contracts made throughout the coun- 
try to play in various theaters. Such service cannot be re- 
placed or supplied from other sources ; it is of peculiar value, 
and courts of equity have power in such cases to forbid a 
party from employing another’s employee who is under posi- 
tive contract to remain a stated time with his employer, and 
also to forbid the employee from leaving and going into the 
service of another; in other words, the courts can indirectly 
compel specific performance of a contract for personal serv- 
ice whenever, though the remedy at law is plain, it is not 
adequate. 

See ante, § 327. 


Lumley v. Wagner, i DeGex M. & G., 604. 

Daly V. Smith, 49 How. Pr. (N. Y.), 150. 

Bennett’s note, 20 Am. L. R. (N. S.), 589. 

§ 358. Services Must be Unique or Extraordinary to Merit Inter- 
vention of Equity. 

While the remedy is clear and has latterly been applied in 
cases where there is a contract between employer and em- 
ployee containing a covenant that the latter will not render 
services for anyone else during the period of the contract, 
it is now settled in America that relief will not be granted when 
the contract fails to contain such covenant, although a few 
of the earlier cases have held contra. ■ 

In order to merit this relief according to the general rule 



EXTRAORDINARY ABILITY 433 

it must be alleged and shown, as an essential element of the 
plaintiff’s case, that the artist’s abilities, whether personal or 
mental, are of a peculiar and uncommon order, something 
more than ordinary and usual. The performer, actor, singer, 
lecturer or “ freak ” must have a personal ability or element 
which is distinct; otherwise someone else could be procured 
to fill his place, and the remedy for breach of contract is plain 
and adequate, with a measure of damages simple of ascertain- 
ment. This is more apparent in a case involving the services 
of an artist of local or national reputation, and evidence to 
establish this principle of uncommon ability would hardly be 
required ; but in the case of one little known, explicit evidence 
would have to be adduced, establishing his extraordinary and 
special artistic abilities or his individual or personal fitness 
for the service contracted for. 

The services must be shown to be of special or unique merit 
and not readily duplicated, “It results then, that if the 
services contracted for by the plaintiff to be rendered by the 
defendants were unique or extraordinary, involving such 
special merit or qualifications in them as to make such services 
distinctly personal and peculiar, so that in case of default by 
them, the same or like services could not be easily procured, 
nor be compensated in damages, the court would be war- 
ranted in applying its preventive jurisdiction and granting 
relief; but otherwise, or denied, if such services were ordi- 
nary, and without special merit and such as could be readily 
supplied or obtained from others without much difficulty or 
expense.” And where the performers were acrobats who 
were not admittedly of special or unique merit, but were 
merely considered “ great,” “ pretty good,” “ do a fair act,” 
etc., and where their performances were merely that of the 
ordinary acrobat, and where there would be no trouble in sup- 



434 


EXTRAORDINARY ABILITY 


plying their places, the injunction was denied, the facts not 
showing a case within the principle in which equity allows 
relief for breach of contract for personal services. 

Cort V. Lassard, i8 Oreg., 221. 

Carter v. Ferguson, $8 Hun, 569. 

Met. Ex. Co. V. Ward, 24 Abb. N. C. (N. Y.), 393. 

Daly V. Smith, 38 N. Y. Supr. Ct, 58. 

DePol V. Sohike, 7 Robt (N. Y.), 280. 

It can readily be seen that the court might restrain by in- 
jtinction a well-known actor from playing at another theater 
in violation of his contract, while it would not restrain an 
agent from quitting his employ or an actor who was not pos- 
sessed of special, unique or extraordinary qualifications. 

Bronk v. Riley, 5 ° Hun, 489. 

Carter v. Ferguson, 12 N. Y. S., 580. 

§ 359. Proof Required of Extraordinary Ability and that lots of 
Same is Irreparable. 

That the services contracted for are of special merit and 
of extraordinary ability, naturally implies that their loss to 
the complainant would be irreparable. The decisions require, 
however, the allegation and proof of both elements to obtain 
an injunction. 

McCauU V. Braham, 16 Fed., 37. 

Cort T. Lassard, 18 Oreg., 221. 

Met Exhib. Co. v. Ewing, 24 Abb. N. Cas. (N. Y.), 419, 

DePol V. Sohike, 7 Robt (N. Y.), 280. 

An injunction will not issue where the services are ma- 
terial, mechanical or purely physical as distinguished from 
intellectual; as such are not peculiar or individual the party 



THE NEGATIVE CLAUSE 


435 


will be left to his action for damages, for the services are of 
such a nature as can be adequately compensated by an action 
of damages. And this principle is true even where, through 
long employment, one’s knowledge of his employer’s busi- 
ness is valuable and it would be difficult to replace him. This, 
while entailing some degree of hardship, does not establish a 
service either unique or extraordinary. 

Kemble v. Kean, 6 Sim., 333. 

Wm. Rogers Mfg. Co. v. Rogers, 58 Conn., 356. 

Allegheny Base Ball Qub v. Bennett, 14 Fed., 257. 

§ 360. Necessity of Native Clause. 

In all instances of this kind, the courts, in America at least, 
require that the contract sought to be so enforced contain a 
covenant wherein by fair construction of the language used, 
the performer stipulates that he will not appear elsewhere or 
perform for anyone else during the period of the contract, 
and do not follow the English doctrine in this respect as 
established in Montague v. Flockton, for while recognizing 
the jurisdiction, the American courts hesitate to apply it, save 
in cases where the negative stipulation exists as a part of the 
expressed contract 

Cort T. Lassard, 18 Oreg. 221. 

McCaull V. Braham, 16 Fed., 37 . ^d note. 

Duff V. Russell, 60 N. Y. Supr. Ct, 80. 

Duff V. Russell, 133 N. Y., 

Hahn v. Concordia Soc., 42 Md., 460. 

§ 361. The Frohibitioii Must be Clear and Explicit 

It follows that the courts will not enforce this doctrine 
iiTilf^ss the covenant or stipulation not to eng^e elsewhere 



THE MASSACHUSETTS RULE 


436 

is clear and definite, leaving no doubt as to the exact under- 
standing of the parties. Nor can there be any indefiniteness 
or ambiguity; if such exists and cannot be satisfactorily ex- 
plained by reference to other parts of the contract, the remedy 
will be denied. . 

Metropolitan Exhibition Co. v. Ward, 24 Abb. N. C. (N. 

Y.), 393. 

Metropolitan Exhibition Co. v. Ewing, 42 Fed., 198. 

The court is bound to look to the substance and not to the 
form of the contract, and may find a clause negative in effect, 
from the language of the agreement, though not expressed in 
■definite terms in a separate covenant Such must be found, 
however, as an actual part of the contract 

Duff V. Russell, 14 N. Y. S., 134. 

§ 362. The Uassachiuietts Enle. 

The Massachusetts rule in this respect is that equity will 
not specifically enforce contracts for personal service, though 
it may grant an injunction and thus give relief where an ex- 
press covenant appears not to enter into the service of a com- 
petitor in business, by restraining a person from doing so; 
but this will depend upon the circumstances of the particular 
case, as the court is reluctant to do that which must result 
in compelling enforced idleness. 

Ropes V. Upton, 125 Mass., 258. 

Rogns Mfg. Co. V. Rogers, 58 Cotm., 356. 

An injunction will not be granted to restrain an artist 
from sirring for others than the plaintiff when the latter is 



CONTRACT MUST BE FAIR 


437 


unable to pay the salary due her, and in default of pa3nnent, 
she is not obliged to take a bond as security for the stipulated 
payment. 

Rice V. lyArville, 162 Mass., 559. 

§ 363. The Contract Must he Just, Fair and Beasonahle. 

An injunction will not be granted in restraint of personal 
services unless it appears that the contract is in its terms just, 
fair, and reasonable, not alone to the manager, but to the 
performer as well ; it must not be oppressive and inequitable. 
Equity never lends its aid to the enforcing of an agreement 
which is harsh and unconscionable in its terms, and which 
would, if enforced, operate oppressively. The contract must 
be fair and reasonable as well as plain and explicit. 

Mapleson v. Del Puente, 13 Abb. N. C (N. Y,), 144. 

Hill V. Haberkorn, 53 Hun, 637. 

Fechter v. Montgomery, 33 Beav., 22. 

Metropolitan Ex. Co. v. Ward, 24 Abb. N. C., 393. 

§ 364. Equity Will Enjoin the Use of Uisleading Advertise- 
ments. 

Equity will restrain by injunction the use of a misleading 
advertisement which would reasonably tend to deceive the 
public as to an offered attraction. The courts recognize the 
value of a name of a play or opera and protect the owner of 
a dramatic or musical piece, not alone from invasion and 
piracy, but from advertisements or announcements which 
tend to deceive the public and cause it to patronize a similar 
or copied attraction. To do otherwise would be the indirect 
toleration of a fraud which might result in irreparable injury. 
This being a matter where the damages are not possible of 



438 TO PREVENT NUISANCE 

exact ascertainment, equity prevents a loss of profits by grant- 
ing an injunction and thus preventing a wrongful diversion 
of patronage. 

The lolanthe case, 15 Fed., 439. 

§ 365. An Injunction Will lie to Prevent the Giving of an 
Immoral Show. 

An owner of a theater may obtain an injunction restraining 
the production of an immoral or indecent show on the ground 
that such is likely to hurt the reputation of his theater. This 
injunction will extend also to the prohibiting of the lessee 
from advertising such performance. 

Reeves v. Territory, 13 Okla., 396. 

§ 366. An Injunction Will Issue to Prevent a Knisance. 

While an injunction will not be granted on the application 
of a private person to protect purely public rights, yet relief 
is granted from such matters as are regarded by the common 
law as nuisances, and hence erections of every kind solely 
adapted to sports or amusements having no useful end, and 
which collect and have a tendency to collect disorderly crowds, 
as well as all indecent exhibitions, can be regulated by injunc- 
tion, and come under the head of “ Nuisances.” 

§ 367. HTuisances Defined. 

A lessee of a theater has been held liable for obstructing 
the access to adjacent premises by reason of the assembly of 
a crowd before the doors of the theater were open to let them 
in, and a circus may become a nuisance if conducted so close 



NUISANCES DEFINED 439 

to a residence that the occupants thereof may be disturbed by 
the crowds and attendant noise. 

The same rule applies to bowling alleys and any other form 
of amusement which is maintained solely for the purpose of 
attracting the public, and which may tend to encourage public 
disorder and noisy crowds. 

For establishments of this kind in populous communities 
are, at best, and even when used without hire, very noisy, 
and have a tendency to collect idle people together and deter 
them from their business. When built and kept for gain the 
owner is interested to invite and procure as full an attend- 
ance as possible day after day, and for this purpose tempta- 
tions, beyond mere amusement, are often resorted to. 

Structures of every kind, whether temporary or permanent, 
solely adapted to amusements or sports, having no useful end 
and which induce or tend to induce the collection of dis- 
orderly crowds, and all immoral or indecent exhibitions, are 
regarded as nuisances under the common law, and can be 
reached by injunction. 

The lessee of a theater has been held liable for obstructing 
access to an adjoining building because of the crowd which 
assembled before the theater doors were open; a bowling alley 
and a circus have been considered nuisances when conducted 
so near to shop or dwelling house as to cause the inmates to 
be disturbed by the noise of attending crowds. This rule is 
not applied save under very clear and controlling circum- 
stances. In cities particularly, such an element to be a legal 
nuisance must be disturbing and more than ordinarily so. 

Reg. V. Saunders, i Q. B. Div., 15. 

Walsh V. Wiggins, 19 Chic. Leg. N., 169. 

Barber v. Penley, 2 Ch. Div., 447- 

Tanner V. Albion, 5 Hill (N. Y.), 121. 

Inchbald v. Robinson, L. R. 4 Ch., 388. 



440 


RESTRAINT OF BUSINESS 


“ The collection of a crowd of noisy and disorderly people, 
to the annoyance of the neighborhood outside the grounds, 
in which entertainments with music and fireworks are being 
given for profit, is a nuisance for which the giver of the 
entertainment is liable to be enjoined, even though he has 
excluded all improper characters from the grounds, and the 
amusements in the grounds have been conducted in an orderly 
way, to the satisfaction of the police. But the mere assem- 
bling of crowds of persons going to or coming from the per- 
formances at a circus, held in a covered building, is not 
necessarily a nuisance which a court of equity will restrain; 
and yet a perpetual injunction was granted to restrain the 
performances of a circus on the ground that the performances 
caused an amount of noise such as to interfere with the ordi- 
nary peace and quiet of the occupiers of an adjacent dwelling 
house.” 

. Spelling’s “ Injunctions and Other Extraordinary Rem- 

edies,” Part I, § 434 (2d Ed.), citing; 

Walker v. Brewster, L. R. 5 Eq., 25. 

Inchbald v. Robinson, L. R. 4 Ch., 388. 

§ 368. Bestraint of Xawfxd Business as a Buisance. 

“Where the prosecution of a business, in itself lawful, in 
the neighborhood of a dwelling house, renders the occupation 
of it materially uncomfortable by reason of noises alone, the 
carrying on of such business, while it produces such results, 
will be restrained by a court of equity.” 

“ A skating rink erected within a short distance of a dwell- 
ing, when the noise from the skating and attending it is of 
such a character as to materially interfere with the comfort 
and enjoyment of the inmates of such dwelling, is properly 
enjoined by a court of equity,” 

Ray’s Negligence of Imposed Duties, § ii, citing: 

Snyder v. Cabell, 29 W. Va., 48. 



COMMON NUISANCES 441 

That a disorderly and disreputable theater may be en- 
joined, although a common nuisance, see 

Reeves v. Territory, 13 Okla., 396. 

Where a theater had been in use fifteen years the court 
refused to issue an injunction because the noise, caused by 
the removal of scenery at night, disturbed the rest of persons 
living in the neighborhood. While this might have been a 
private nuisance, the acquiescence of the complainant, or de- 
lay in seeking relief, gave him no right of redress. 

Appeal of Penrose (Pa.), 21 A., 364. 

It would seem, however, that if the performance is in ac- 
cordance with the terms of a license granted by statute and 
the use of the building is in conformity with the license 
granted, it would not subject the owner to injunction. 

White V. Kenney, 157 Mass., 12. 

§ 369. liability of Manlier Criminally for Presenting a Common 
XTnisance. 

In People v. Daly, et al. (New York), reported in Vol. 
XXXV, No. 38, N. Y. Law Journal, p. 1 199, it was held that 
a theatrical man was not liable for committing a public nui- 
sance by the presentaton of a play called “ Mrs. Warren’s 
Profession,” because “ it appears that instead of exciting im- 
pure imagination in the mind of the spectator, that which is 
really excited is disgust; that the unlovely, the repellent, the 
disgusting in the play, are merely accessories to the main 
purpose of the drama, which is an attack on certain social 



442 USE OF PHOTOGRAPH 

conditions relating to the employment of women, which, the 
dramatist believes, as do many others with him, should be 
reformed. Tried by this rule, the play does not come within 
the inhibition of the statute, and the defendants are acquitted.” 

§ 370. An Injunction WiU Issue to Prevent the Wrongful Use 
of a Photograph. 

Equity grants an injunction in all cases where there is a 
valid contract, and a breach thereof would cause damages irrep- 
arable in nature. For this reason a photographer who had 
taken a negative from which life was to supply his customer 
with photographs, was restrained from the sale or exhibition 
of copies on the ground of an implied condition in the con- 
tract not to use the negative for such purpose, and also on the 
ground that such use was a breach of confidence. 

Pollard V. Photographic Co., L. R., 40 Ch. Div., 345, 

This is well-established law, and a person’s right to the 
privacy of his own picture is clearly recognized and the un- 
authorized publication, sale or exhibition of such freely pre- 
vented by injunction. 

Pollard v: Photographic Co., 40 Ch. Div., 345. 

Marks v. Jaffa, 36 N. Y. S., 908. 

Moore v. Rugg, 44 Minn., 28. 

See ante, § 299. 

Injunction was granted against the publication of a photo- 
graph in a newspaper, with an invitation to readers to send 
in votes as to the question of the popularity of the plaintiff 
as compared with another whose picture was also published. 

Marks v. Jaffa, 26 N. Y. S., 908. 



PROTECTION OF PICTURE 443 

Injunction will not lie, however, to restrain the publication 
of a photograph of one who is a “ public character.” 

Corliss V. E. W. Walker Co., 64 Fed., 280. 

§ 371. Protection of Lithographs and Wood Cuts by Injnnction. 

Equity will enjoin the wrongful publication or use of a 
portrait produced by any method, to the same extent and 
in the same manner as a photograph; pictures, devices and 
forms of original advertising are treated as literary com- 
positions and their protection discussed in Chapter 3. As 
to obtaining a copyright on the same see ante, § 62. 

Mark.s v. Jaffa, 26 N. Y. S., 908. 

§ 372. An Injunction Will Issue to Prevent ■ft.e Invasion of a 
Common-Law B^lht. 

Equity prevents the violation of a common-law right where 
its invasion could not adequately be compensated for in dam- 
ages. The publication or representation of a play, opera, 
song or sketch acquired without the author’s consent by 
means of phonographic reports, memory, theft or other sur- 
reptitious means, is such violation of the common-law rights 
of ownership as will entitle the owner to an injunction re- 
straining such improper use. 

See ante, § § 64, 65 and cases cited. 

§ 373. An Injunction Will Issue to Prevent a Breach of Confi- 
dence. 

Where an actor has committed a part to memory, he can 
only use it in the service of its rightful proprietor and can 



444 


PROTECTION OF TITLE 


be enjoined from using his remembrance of a part in an 
unpublished play or opera in another and unauthorized pro- 
duction. This is true, though he has not entered into an 
express contract not to do so, for independent of agreement, 
to make such unauthorized use of another’s unpublished com- 
position, is a breach of confidence which equity will enjoin. 

See ante, § 74. 

§ 374. Protection of Name or Title of Dramatic or lllnsioal Com- 
position by Injunction. 

The title of a dramatic or musical composition can be pro- 
tected, as explained in § 104, et seq., ante. 

While the application of this principle of ownership of 
name or title is limited and extends only to a clear case of 
originality and not to words of general signification, yet if 
bad faith exists, another rule prevails, and if one adopts a 
title, though of general signification, and uses it to profit by 
another’s work or to injure another’s play or business, such 
wrongful use will be considered as an invasion and enjoined 
in equity. 

Isaacs V. Daly, 39 N. Y. Sup. Ct, 511. 

§ 37S. An Injunction Will Issue to Bestrain the Use of SEanu- 
script Wroi^nUy Acquired. 

An author’s right to use his uncopyrighted composition is 
only lost by dedication or abandonment, both of which acts 
depend upon his actual intent. Neither can be accomplished 
by an unlawful or surreptitious obtaining of the manuscript 
or by an unauthorized or felonious retention thereof. The 
use of a composition so obtained cannot prejudice the true 
owner’s rights, and although its wrongful use by another 



FREE TICKETS 


445 

might amount under other circumstances to a dedication, the 
intent of the real owner lacking, equity will restrain such 
unlawful use and prevent others who may be acting in good 
faith from the use thereof, although they paid a fair con- 
sideration to the apparent but wrongful owner. In such 
instances strict allegation and proof showing that the title 
to the composition is in the complainant is required. 

See ante, § 76. 

Shook V. Daly,' 49 How. Pr. (N. Y.), 366. 

§ 376. To Sestrain Issuing Pree Tickets. 

The management of a place of amusement may gfranf 
tickets of free admission at his discretion, but this practice, 
if carried so far as to become an injury to the stockholders 
or other interested parties, may be restrained by injunction. 


Baker’s Appeal, 108 Pa. St, 510. 

§ 377. Injunction Ides to Prevent Continued Breaches of a 
Contract. 

This rule does not, however, preclude the right of injunc- 
tion in cases where a breach is not a final disposition of the terms 
of the agreement, and where the violations may be continued 
or repeated, or of a variety, and it does not clearly appear that 
all such instances are protected by the phraseology of the 
clause providing liquidated damages; then, on the gpround of 
the prevention of a multiplicity of actions and because of the 
inadequacy of the provisions provided for liquidated dam- 
ages, equity will interfere by injunction. 


Diamond Match Co. v. Roeber, 106 N. Y., 173. 



446 STAND OVERLOOKING GAME 
§ 378. Stand Overlooking Exhibition Qtonnds. 

Equity will not enjoin the use by a landowner of a stand 
erected on his premises from which persons are allowed to 
witness games of baseball played on adjoining grounds, it 
not appearing that persons viewing the games from the de- 
fendant’s stand would have otherwise paid the admittance fee 
charged by the other grounds or that he in any way prevented 
them from so doing. 

If in such a case the complainant has been pecuniarily in- 
jured, his remedy at law is entirely adequate. 


Detroit Baseball Club v. Deppert, 6i Mich., 63. 


§ 379. Equitable Process Will Not Issue to Compel lease of 
Theater. 

Equity will not compel an owner to furnish his theater to 
a lessee for theatrical uses, nor will an injunction be granted 
to prevent a lease of the theater to another, 

Welty V. Jacobs, 171 111 ., 624. 


§ 380. Injunction to Prevent the Wrongful Bemoval of Fixtures. 

An injunction will issue to prevent the wrongful removal 
of fixtures, if such removal would work irreparable injury, 
and the question of whether the property is or is not a fbtture 
is m dispute. 


Trask v. Little, 182 Mass., 8. 

Camp V, Thatcher Co., 75 Conn., 165. 



LIQUIDATED DAMAGES 447 

§ 381. The Agreement for Id^nidated Damages Bars Proceedings 
iu Equity. 

An injunction will not issue when the contract contains a 
stipulation providing for the payment of a specific sum as 
liquidated damages for any violation of the contract. The 
parties, themselves, have settled the amount of damages re- 
sulting from a breach of such stipulation, and the complainant 
is not left to the mere chance of any damages which a jury 
may choose to gpve. Havir^ by his own contract fixed the 
extent of the injury by an agreed valuation, he is precluded 
from resorting to equity for relief by injunction. 

Halm T. Concordia Soc., 42 Md., 460. 

McCauU V. Braliain, 16 Fed., 37. 

Mapleson v. Del Puente, 13 Abb. N. C (N. Y.), 144. 

Martin v. Murphy, 129 Ind., 464. 


§ 382. The Buie Changes in Instances of Penalty, and an Injunc- 
tion Will Issue. 

Where the nature of the provision in the contract is a 
penalty and not liquidated damages, it is well settled that 
such will not prevent a remedy by injunction, as its plain ob- 
ject is to secure a performance of the covenant and not in- 
tended as the price or equivalent to be paid for a non-ob- 
servance of it, and a stipulation for the forfeiture of a week’s 
salary under certain conditions is not for the payment of a 
certain sum as liquidated damages, but only for a penalty, 
i. e., for the foiieiture of a week’s salary. 


McCaull V. Braham, 16 Fed., 37. 



448 LIQUIDATED DAMAGES 

§ 383. liquidated Damage Clause. 

A clause is often inserted in theatrical contracts provid- 
ing for the payment of a specified sum as and for liquidated 
damages in case of a breach. As the violation of such a con- 
tract necessarily makes a fatal breach thereof and gives an 
immediate right to sue for damages, the same having been 
agreed upon as to amount, an injunction could accomplish 
nothing of greater benefit or adequacy, and will not be 
granted. 

Nessle v. Reese, 29 How. Pr. (N. S.), 382. 

World's, etc., Exhib. v. United States, $6 Fed., 630. 

Ante, Chapter 23, Liquidated Damages. 

§ 384 Injimotioii to Prevent the Doing of a Prohibited Act. 

The injunction will be granted, however, even where 
liquidated damages are stipulated if the construction of the 
contract clearly shows that the defendant has no right to do 
certain prohibited acts on paying the stipulated sum, for in 
such cases the actual intent of the parties clearly shows that 
the prohibition of the act, rather than a payment for doing it, 
is the essential purpose of the agreement, and hence equity 
should interfere. 

Ropes V. Upton, 125 Mass., 258. 

Diamond Match Co. v. Roeber, 106 N. Y., 473 . 

22 Cyc., 870. 

§ 385, The Bemedy by Injunction Hast be Sought Without tin- 
reasonable Delay. 

It is a settled principle of equity that when one discovers 
another’s invasion of his rights he should seek the protection 



LACHES 


449 


afforded by the chancery court within a reasonable time after 
knowledge of the wrong. Unwarranted delay, when there is 
actual notice of this invasion of legal right, constitutes a bar 
to the relief finally asked. Equity demands a reasonable at- 
tention to violated rights when the party aggrieved is in full 
knowledge of the facts; otherwise the complainant is guilty 
of laches, and is denied relief, as such long-continued delay 
amounts to acquiescence. 

The modem rule is more reasonable, however, in this re- 
spect and has gone quite far in allowing relief where the cir- 
cumstances show elements of delay. 


Avery v. Meikle, 8$ Ky., 435. 

Laches can only arise in a case of delay where kiiowledge 
of the wrong exists. No one can be expected to protect his 
rights until he shall know of their invasion by another, and 
mere ignorance of a fact can be no bar to protection when 
finally discovered. 

Strahan v. Graham, 17 L. T. (N. S.), 4 S 7 - 

Latour v. Bland, 2 Stark, 382. 

Heine v. Appleton, 4 Blatch. (U. S.), 125. 

§ 386. Necessity of Prompt Action. 

The safer way is to act with reasonable diligence when 
aware of the wrong done. Equity provides a remedy which 
will be withheld, however, if there is a long delay after rea- 
sonable knowledge of the facts. As to what is reasonable 
in this respect varies according to the conditions and subject 
matter at issue and must be determined in each particular case. 

To allow an open and undisguised use of another’s dra- 



450 PARTIES IN EQUITY 

matic composition for an appreciable period of time it a well- 
known theater, the same being generally advertised, would 
/lomanH earlier action than an occasional use under less con- 
spicuous circumstances. Delay constitutes laches on the theory 
that it amounts to a tacit consent or legal acquiescence and 
the complainant is barred from relief because of his own 
wrong in so unreasonable a delay. 

Boucicault v. Wood, 2 Biss., 34. 

Maxwell v. Somerton, 30 L. T. (N. S.), n. 

Heine v. Appleton, 4 Blatch. (U. S.), 125. 

Amoske^ Mfg. Co. v. Gamar, 6 Abb. N. Y. Pr. (N. S.), 
265. 

Avery v. Meikle, 85 Ky., 435. 

It is an unreasonable delay to wait until after the salary 
period expires before commencing proceedings. 

Mapleson v. Del Puente, 13 Abb. N. Cas. (N. Y.), 144. 


§ 387. The Parties to Proceedings in Equity. 

In seeking relief in equity it is necessary and important 
that all of the parties interested or involved in the subject 
matter of the controversy be joined. 

The matter complained of, if owned by more than one, or 
so held as to involve several and distinct rights, should be 
presented to the court by all having an interest therein, pro- 
vided any element or condition of an interest is involved in 
the instituted proceedings. Equity requires a full and com- 
plete showing of title and interest, and adjusts a matter as 
a whole and not piecemeal. To do otherwise would pre- 
vent real and equitable relief. A plaintiff might be merely a 
licensee or assignee with rights so limited as to prevent in- 
dependent action, or the original owner may have sold his 



PARTIES IN EQUITY 


451 


rights or obligated himself not to appear in any proceeding; 
here an allegation showing the right under which the com- 
plainant claims, is material. The court looks with disfavor 
upon a complainant who withholds material facts, and requires 
clear allegations as to ownership or title, sufiicient to justify 
the asking for relief. If one is an assignee, licensee or vendee 
from the original owner, of any right, that fact should appear, 
as establishing his actual interest; partners, joint owners, joint 
licensees and others who have a community of interest in the 
subject matter of the suit, should be made parties to it. The 
bill must show the plaintiff’s interest. 

May V. Parker, 12 Pidc, 34. 

16 Cyc., 196, and cases cited. 

19 Cent. Dig., Tit., ** Equity,” §§ 266, 267. 

22 Cyc., 915, and cases cited. 

“ The general rule is that all parties interested in the sub- 
ject matter of a suit in equity, whether directly and imme- 
diately or incidentally and remotely, are to be made parties, 
so that complete justice may be done between all parties in- 
terested in one suit. This is an important rule, as it avoids 
multiplicity of actions, and enables the court to do justice 
between persons having conflicting interests, and to avoid the 
injurious consequences that might follow from the decision 
of a cause grounded on a partial consideration of its real 
merits.” 

Crease et at v. Babcock, lo Met, S 2 S- 

16 Cyc., 181. 

Story Eq. PI., § 76. 

I Daniel, Ch. PI. & Pr., 284. 

Story V. Livingston, 13 Pet, 359. 

If there is any person who has some apparent interest and 
ought to be made a party and is not, the reason why he is not 



452 


NOTICE OF INJUNCTION 


should be stated in the bill of complaint as explaining an ap- 
parent defect in the allegations. 

Palmer v. Stevens, loo Mass., 461. 

Wilkinson v. Stitt, 175 Mass., 581. 

McCaull V. Braham, 16 Fed., 37, note. 

§ 388. Notice of Injunction. 

Service of an injunction should be made by an officer when 
possible. In order to give effectual notice of the injunction 
to a party to whom it is directed, it is not necessary, however, 
that it be served on him by an officer. Actual notice is suffi- 
cient to put him under the obligation to obey it. It is the duty 
of every person, whether directed to him by name or otherwise, 
to obey an injunction, and persons may be bound by the injunc- 
tion, though not mentioned in it by name. 

Notes on Eq. PI. & Prac., Richardson, 124. 

2 Beach on Modem Eq. Pr., § 894 

I High on Injunctions, § 17, Vol. IL, § 1444. 

In re Debs., 158 U. S., 575. 

In re Lennon, 166 U. S., 554. 

Ex parte Lennon, 64 Fed., 320. 

§ 389. Necessity of Specific Allegation. 

In proceedings for equitable relief all the elements which 
constitute the basis of the asked for remedy must be alleged 
and set forth with clearness and precision. A failure so to 
do presents a matter lacking equity and open to a sustainable 
demurrer. The Chancery Court requires that the pleadings 
show on their face the complete elements which constitute 
a right to seek relief. The recital of an invasion of another’s 
rights demands a further allegation and showing of title and 
such facts as clearly show a wrong, which equity can recog- 
nize as within its rules for protection or prevention. 

The need of explicit and complete averment is arbitrary 
and absolutely necessary in any petition for relief. 



LEGISLATION CONCERNING THE THEATRICAL 
AND AMUSEMENT BUSINESS 

THE EMPLOYMENT AND ADMISSION OF CHIL- 
DREN 

SUNDAY PERFORMANCES 
LICENSES 

THE NECESSITY FOR NEW LEGISLATION TO 
GOVERN AMUSEMENT ENTERPRISES 




POLICE REGULATION 


455 


CHAPTER XXV 

§ 390. The Bnle of Police Beg^tion of a Private Bnsiiiess. 

While the operation of a theater or other place of amuse- 
ment is recognized as a private business enterprise, it is never- 
theless subject to the police power of the government. This 
constitutional right is vested in the legislature, and confers 
on it the authority to make, ordain or establish all manner of 
wholesome and reasonable laws, statutes and ordinances, either 
with penalties or without, provided they are not repugnant 
to the Constitution; such laws must be limited to regulations 
which are for the good and welfare of the commonwealth and 
of the subjects of the same. “ It is difficult, if not impossible, 
to define the police power of a State; or, under recent judicial 
decisions, to say where the constitutional boundaries limiting 
its exercise are to be fixed. It is a power essential to be con- 
ceded to the State, in the interest and for the welfare of its 
citizens. We may say of it that when its operation is in the 
direction of so reg^ulating a use of private property, or so 
restraining personal action, as manifestly to secure or tend 
to the comfort, prosperity or protection of the community, no 
constitutional guarantee is violated, and the legislative au- 
thority is not transcended.” 


People V. Ewer, 141 N. Y., 129. 


As said by Chief Justice Shaw in Commonwealth v. Alger, 
7 Cush. (Mass.), 85: “It is much easier to perceive and 



4S6 police regulation 

realize the existence and sources of this power than to mark 
its boundaries or prescribe limits to its exercise. There are 
many cases in which such a power is exercised by all well- 
ordered governments and where its fitness is so obvious that 
all well-regulated minds will record it as reasonable.” This 
power is both protective and preventive in the sense of regu- 
lating private business for the good order, health, protection, 
comfort, convenience and morals of the community, but must 
at all times be confined to such matters as are reasonable and 
proper within these limitations for the public welfare. 

People V. Ewer, 141 N. Y., 129. 

Rochester v. West, 29 N. Y. App. Div., 125. 

Webber v. Virginia, 103 U. S., 344. 

Cbamper v. Greencastle, 138 Ind., 339. 

This rule of law is intended to insure to every citizen the 
right of pursuing and exercising his individual labor or busi- 
ness so far as it shall not interfere or conflict with a like 
enjoyment of another. 

The theatrical and amusement business, though private in 
nature, like any other enterprise must be so operated and 
conducted as to protect the health, lives, comfort and quiet of 
the community. Individual interests may not be exercised so 
as to invade and disturb the rights of others. This is true of 
the enjo3mient of any vocation. While the enforcement of 
allowable and legal regulations in the interest of the public 
may interfere with the use of some particular place or compel 
a change in the conduct of a certain business, there is in such 
instance no wrongful invasion of property rights as a pro- 
hibition upon the tise of property for purposes that are con- 
sidered by legislation to be injurious to the safety, health or 
morals of a community, and it cannot in any sense be deemed 



LICENSE REGULATIONS 


457 


such an interference with private property as to violate the 
operation of the rule that property cannot be taken without 
due process of law. 

Mugler V. Kansas, 123 U. S., 623. 

These regulations are always limited to the extent that the 
legislature has no right, under the guise of protecting health, 
or morals, to enact laws which, bearing but remotely, if at 
all, upon these matters of public concern, deprive the citizen 
of the right to pursue a lawful occupation. 

Matter of Jacobs, 98 N. Y., 98. 

People V. Marx, 99 N. Y., 377. 

People V. Gillson, 109 N. Y., 389. 

People V. Rosenberg, 138 N. Y., 410. 

§ 391. Kegnlations Concerning the Erection, Protection, and 
ICaintenance of Places of Amnsement. 

In the constitutional right of the legislature to protect the 
lives and welfare of the community is included such police 
regulation as concerns the erection, maintenance and regula- 
tion of any building, structure or place used for amusement 
purposes. This is a matter properly under the inspection and 
regulation of State and local authorities, and a permit for the 
use and occupancy of any such structure may well be required 
as a guarantee that it has been judged safe by competent offi- 
cers for the intended use. For the same reason the legislature 
may enact laws compelling structural changes, the mainte- 
nance of specified appliances for fire protection, the keeping 
of aisles and passageways clear, and can go to any reasonable 
extent in the direction of regulation so long as the require- 
ments are for the good protection of the general public. While 



46 o police and private business 


public one, for while a theater caters to the public and from it 
gets financial support and encouragement and is subject to 
legislative control, it still remains a private business in every 
sense of that term, otherwise the business could not be con- 
ducted. At stated in Purcell v, Daly (see mte, § 151), the 
theater is in no sense a public enterprise, and is consequently 
not governed by the same rules which relate to common car- 
riers or other public institutions of like character. 

While it is true that the manager pays a license for the 
privilege of giving public amusements, this in no way changes 
the character of the institution from a private to a public one. 
As a result, while the legislature may regulate this business in 
the interest and safety of the public, may prescribe the giving 
of certain kinds of entertainments and compel a license, yet 
to no greater extent can it go, for in the conduct of the busi- 
ness itself, outside of these controlling rules, the manager may 
do as he wishes with his property, may give or discontinue 
performances, charge whatever price of admission he pleases 
and offer such attractions as in his own judgment are ad- 
visable. Any interference in respect of these matters is clearly 
unconstitutional, vexatious and illegal. The assumption of 
the exercise of this extraordinary and very necessary power 
has been the subject of severe criticism in the opinions of 
judges, when it has been sought thereby to regulate and con- 
trol in the interest of the public the conduct of corporate or 
individual business transactions. 

Mium V. State of Illinois, 94 U. S., 113. 

The application of this rule and the determination of the 
constitutionality of legislative enactments thereunder neces- 
sarily depends upon the conditions surrounding each particu- 



NEEDED REGULATIONS 


461 


lar instance. They must not be unnecessary, vexatious, or 
transcend common sense and reason. What might be reason- 
able in one instance or locality might be entirely unreasonable 
in another. The rule of construction applied to such legisla- 
tion depends to a greater or less extent upon sound judgment 
and reasonable protection of apparent instances, and is not of 
a general and inflexible nature. What might be reasonable 
regulation in a city might be entirely unreasonable for a town. 

See ante, § 29. 

§ 394. Various Enactments Held a Proper Eegulation of the 
Amusement Business. 

In re Considine, 83 Fed. 157, it was held that a statute was 
constitutional which forbade the employment of women in a 
theater or any place of amusement where intoxicating liquors 
were sold. Within the same classification comes the right of 
the legislature to prohibit any gambling or lottery scheme in 
conjunction with admission to a place of amusement. And 
laws have been held valid which prohibit the carrying on of 
a gift or prize enterprise or the giving of anything as a pre- 
mium because of the purchase of a ticket or the holding of a 
reserved seat coupon. Gambling in any form is considered 
against public policy and the subject of statutory prohibition. 
The same element of chance that makes a gambling business 
illegal invalidates an amusement business which employs such 
an element in its transactions. 

Under the head of public convenience and expediency may 
come certain regulations properly within the police power 
which are more clearly applicable to business of a quasi public 
nature, such as railroads; common carriers and inn keepers. 
Here railroad companies, common carriers or inn keepers in 



462 VEXATIOUS REGULATIONS 

the conduct of their business may be compelled to do certain 
things for the equal convenience of the public which could not 
be expected of an individual or corporation carrying on a 
clearly private business. While it would be proper to require 
a railroad company to make certain connections for the con- 
venience of public traffic at certain hours, to issue transfer 
checks and provide places of shelter, it would not be reason- 
able and within the legislative power to compel a theater or 
place' of amusement to open at certain designated hours, to 
prohibit it from selling reserved seats, or require the manage- 
ment to issue return checks which would be good for a re- 
entrance. These requirements would be a vexatious and 
unreasonable interference with a private business, which, 
though a convenience to the public, cannot be compelled or 
required as in the case of the conduct of a business which 
enjoys a franchise from the public and necessarily must oper- 
ate for the public convenience. As has already been seen, if 
an act cannot be done without a license or a business cannot 
be engaged in until such license has been procured, the doing 
thereof without a license is illegal. It is clearly within the 
powers of the legislature to allow the amount of the license 
fee to be fixed by the local authorities. Where police regula- 
tion is the entire reason of compelling a license there is more 
or less conflict as to the amount which can be charged as a 
condition precedent to the obtaining of a license. The gen- 
erally accepted rule seems to be that the amount must be 
reasonable, having in view the expense attendant on the super- 
vision over the particular business in question, and if in a 
place of public amusement certain duties of inspection and 
policing are required by the law, it is not unjust or unreason- 
able to place the amount of the license high enough to cover 
these expenses; although on the other hand it would seem that 



LAWS REGULATING CHILDREN 


463 


if this is entirely in the interests of protecting the public and 
not the manager, it should not be wholly charged to the man- 
ager in the form of a license fee, as the expense of police is 
included and really a part of the general tax scheme to insure 
the protection of the public and its property. 

Baker v. Cincinnati, ii Ohio St, 543. 

Dent V. West Virginia, 129 Ala. 361. 

Van Hook v. Selma, 70 Ala., 361. 

Finch V. Gridley, 25 Wendell, 469. 

8 Cyc., 876, and cases cited. 

See ante, $ 29. 

§ 395. Begnlation PreTenting Admission or Employment of Chil- 
dren in Places of Amusement. 

The power of the legislature to prevent the admission of 
children of tender years to places of public amusement or their 
appearance in theatrical or other like performances has been 
recognized for a long time, and is a limitation which comes 
within the rights of police regulation tending to promote the 
health and moral well-being of the members of society. “ By 
preventing the exhibition of children of tender and immature 
age upon the theatrical or public stage, the legislature is 
exercising that right of supervision and control over the child 
which, in every civilized state, inheres in the government and 
which nothing in the legal relations of parent and child should 
be deemed to forbid. The proposition is indisputable that the 
custody of the child with the parent is within legislative regu- 
lation. The parent, by natural law, is entitled to the custody 
and care of the child, and as its natural guardian is held to 
the performance of certain duties. To society, organized as a 
state, it is a matter of paramount interest that the child shall 
be cared for and that tiie duties of support and education be 



464 


LAWS REGULATING CHILDREN 


performed by the parent, or guardian in order that the child 
shall be cared for and that the duties of support and education 
be performed by the parent, or guardian, in order that the 
child shall become a healthful and useful member of the com- 
munity. It has been well remarked that the better organized 
and trained the race, the better it is prepared for holding its 
own.” 

This legislation does not deprive the parent of the child’s 
custody, nor docs it abridge any just rights. “ It interferes to 
prevent the public exhibition of children, under a certain age, 
in spectacles or performances which by reason of the place 
or hour or the nature of the acts demanded of the child per- 
former and of the surroundings and circumstances of the 
exhibition are deemed by the legislature prejudicial to the 
physical, mental or moral well-being of the child, and hence to 
the interests of the state itself. 

“ The right to personal liberty is not infringed because the 
law imposes limitations or restraints upon the exercise of the 
faculties with which the child may be more or less exceptionally 
endowed. The inalienable right of the child, or adult, to pur- 
sue a trade is indisputable ; but it must be not only one which 
is lawful, but which, as to the child of immature years, the 
state or sovereign, as parens patriae, recognizes as- proper and 
safe.” 


People V. Ewer, 141 N. Y., 129. 

In the application of a prohibition of the appearance of a 
child at any specified place or in any mentioned employment 
under certain years the actual age of the child is the all-im- 
portant question, and although he may apparently be older 
than the required age or has misrepresented his years, this 



CORPORATIONS 


465 

does not excuse the application of the rule. The prohibition 
is absolute, and the admission or employment under the ag-e 
limit can afford no excuse for the doing of the act, although 
the attendant circumstances would undoubtedly be considered 
by any court in mitigation of sentence or fine. The recogni- 
tion, however, of a contract based thereon is a legal impos- 
sibility, and no action can lie which involves contractual rights 
founded on the evasion of such a statute. 

Burkitt V. Chattertown, 13 R. L, 29 ^ 

The only safe and possible rule in these matters is to be 
absolutely certain as to the exact age stipulated by the statutes 
of the State wherein the child is to be admitted or employed, 
and then to investigate in such a manner as to make sure of the 
infant’s age. Most States have statutes which positively prohibit 
the admission of children under a certain age to places of 
amusement after sunset and refuse them the right to appear 
upon the stage in any form of public amusement. The reason 
of the rule has been stated and there is no constitutional de- 
fense against its enforcement. 

See ante, § 204. 

§ 396. Statutes Begnlating the Anutsemeiit Business. 

A careful consideration of the statute law of the State in 
which an amusement enterprise is to be conducted is neces- 
sarily important, and while many States have the same gen- 
eral laws, each varies sufficiently in detail to make it imperative 
to consult them if the manager desires to escape fine, im- 
prisonment or civil liability. 



466 CORPORATIONS 

§ 387. Coiporations. 

1. First in importance is the necessity of a strict compliance 
with the laws regulating and controlling foreign corporations. 
As we have already seen, the only right that a company or- 
ganized in one State has of doing a legal business in another, 
is by a strict compliance with the laws of the latter State 
respecting foreign corporations. The requirements of the 
various States differ in many particulars, but generally there 
must be the appointment of an agent for the acceptance of 
service in case of suit and the annual filing of information 
concerning the assets and liabilities of the company. The 
necessity of a compliance with these regulations is apparent, 
and a failure to conform thereto in some States has the effect 
of invalidating contracts and making the corporation and its 
officers subj ect to fine or other punishment 

See ante, § 205. 

§ 398. licenses. 

2. The necessity of obtaining a license for an amusement 
business has already been discussed and requires no further 
explanation. To do business without such license is the car- 
rying on of an illegal enterprise and inexcusable. 

See ante, $ 32 et seq. 

§ 399. Children. 

3. Statutes prohibiting the employment of children under a 
certain age in any theatrical or public amusement are general, 
although in some States there exist exceptions which allow 



CHILDREN 


467 


appearances under certain conditions. The general statutory 
rule prevailing in most States is that children of tender age 
are not allowed to perform or appear on the public stage, and 
a strict adherence to the rule is the safer course to pursue. 
These laws are admittedly wise in a general way, yet on the 
other hand the appearance of a child in certain plays is ab- 
solutely necessary for their success, and it would seem that 
if the child while employed has proper schooling and is 
safeguarded in matters of health and morals that no harm can 
result from an exception to the general rule. This exception 
should be in the discretionary power of some board or official 
who could imder proper circumstances grant a license or per- 
mit for the child’s appearance on satisfactory assurance that 
the child was well cared for and no harm was resulting to 
him physically or mentally. A definite law which prevents 
the emplo3mient of children under a certain age in any kind of 
busmess, although drastic, is for the best interest of the com-* 
munity at large. 

The application of any law beyond a certain point becomes 
ofttimes a hardship or an absurdity. There seems to be no 
particular need of absolutely prohibiting all children from ap- 
pearing in a play or other stage entertainment, especially where 
the child has marked ability, is properly fitted for the work in 
question, and necessary to the entertainment. The possible 
chance of the abuse of a child or an encroachment upon his 
mental or physical development should at all times be properly 
safegua'hjed, yet where the child has distinct and recognized 
abilities and their exercise in public does him no harm, the 
advisability of providing an exception to the general statute 
rule is reasonable. Many of the better plays require children 
in the cast, and their appearance is often allowed even in oppo- 



468 


SUNDAY LAWS 


sition to the statute law. These plays would be senseless and 
absurd without the appearance of a child. When such excep- 
tion is a matter for proper consideration and allowance, it is 
better to sanction it than to hold to a strict statutory proposi- 
tion, the breaking of which is allowed in certain instances and 
interfered with in others in the same State, and often in the 
same city. The manager naturally desires the right to avail 
himself of the privilege allowed to others even though he 
violates the law in exercising it Until some reasonable limi- 
tation is provided there can be no protection to the manager 
who employs a child under the statutory age to appear in his 
performances. The exception which should be recognized to 
the general rule is one of practical common sense rather than 
logic, and needs to be gfovemed more or less according to the 
circumstances of each particular case. Within such limitation 
but a small number of children would be employed, and then 
only in such a way as to afford reasonable protection to their 
health, mind and morals. 

These statutes are narrowly construed, and a license given 
for a child to perform in a play does not permit singing or 
dancing. 

In re Stevens, 70 Hun, 243. 

§ 400. Sunday Laws. 

4 . The almost universal and enforced observance of the 
Lord’s day creates a peculiar confusion in statutory laws. The 
recognition of Sunday was early compelled by legislative enact- 
ment, and the regulations pertaining to the day were very 
severe and far reaching in the latter part of the seventeenth 
century. Since then the law has been changed in various 
ways, but always in trend of allowing the doing of certain and 



SUNDAY LAWS 469 

additional things which new conditions of progress demand 
and make imperative. 

In earlier times the church and its needs reigned supreme and 
the laws were directly framed to compel a religious and abso- 
lute observance of the day. Such being the original intend- 
ment of these statutes, the prohibition against any form of 
public amusement was distinct and far reaching. The legis- 
lature reluctantly interferes with laws of this kind, and instead 
of enacting provisions to meet the spirit and demand of the 
times, are prone to allow the doing of certain acts under a. 
classified list or delegating some official to license or permit 
the doing of certain prohibited things on Sunday. The result 
is an evasion of the spirit of the law by doing that which does' 
not violate its phraseology. Some statutes have excepted from 
entertainments prohibited on the Lord’s day concerts of sacred 
music, and under such classification the authorities in certain 
States allow the giving of any kind of an entertainment, al- 
though the same is neither a concert nor sacred. The result 
is necessarily confusing and leaves the entire intendment of 
these statutes ridiculous and completely out of accord with the 
original or the present modified Sunday law. Public senti- 
ment in certain localities permits the giving of entertainments 
on Sunday in violation of the statutes without interference 
from the police. This tacit consent to law-breaking continues 
until some popular change calls for the enforcement of the 
statute, and what has been tolerated and allowed is stopped, 
and the givers of the entertainment punished. In other I0-. 
calities various kinds of entertainments are allowed, and 
others prohibited by common consent, although the statute 
expressly prohibits even the entertainments given. As a neces- 
sary result laws regulating Sunday are in a great measure 
disregarded, although at times unreasonably enforced. The 



470 


MODERN LEGISLATION 


legislation, while advisable within certain well recognized 
bounds, if not in accord with the public idea of fairness, leads 
to lax and unsatisfactory enforcement and hence at times un- 
reasonable hardship when enforced. For these reasons a 
manager in giving an entertainment on Sunday must well con- 
sider the law as it actually is and ascertain if he is within any 
exemption provided by the statutes; if so, he is justified in 
opening his place of amusement to the public; otherwise he 
faces the possible chance of arrest for the violating of a distinct 
though generally unenforced statute. 

§ 401. Modem Legislation. 

In many States, legislatures, in an attempt to bring the Sun- 
day restrictions within the limits of their usual observance by 
qualifications and exemptions of the original law, have opened 
the way to many absurd and unreasonable methods of doing 
prohibited things; as allowing a concert if licensed by some 
official, an entertainment provided it is of sacred music or any 
kind of amusement provided the whole or a part of the pro- 
ceeds are to be devoted to a charitable purpose. The absurd- 
ity of such legalized exceptions to a general prohibitory law 
is apparent. An entertainment given on Sunday is either 
right or wrong, and a play given for a charitable purpose, or 
a concert of sacred music, both violate the original intendment 
and spirit of the law. The sentiment of keeping an obsolete 
blue law and providing legal ways in which it can be violated 
seems neither wise nor necessary, and an abuse of legislative 
power. From a legal standpoint an entertainment is an en- 
tertainment, and the degree thereof matters little. The invasion 
of a recog^nized Sunday by a play in costume with the usual 



LEGISLATION 


471 


accessories simply because a portion of the proceeds are for 
charity or because it is labeled a sacred concert is neither 
logical nor sensible. The amusement is equally right or wrong 
whether called sacred or under the auspices of some charitable 
corporation. Why such uncalled for classification when it is 
intended that the amusement is to be allowed? There should 
be no half-way point in the matter of Sunday amusements. 

A statute should prohibit or permit ; the amusement is either 
right or wrong, and should be definitely defined. To do 
otherwise only gives an unfair advantage to some to enjoy 
the benefits prohibited to others; the inconsistency is apparent, 
both in theory and practice. The difficulty of ascertaining 
the exact law on these matters in a particular State is clear, and 
although puzzling to analyze in certain jurisdictions, no man- 
ager can afford to undertake such business without an under- 
standing of his rights and limitations. 

Statutory enactments, while founded on police right, are 
not always reasonable in application or entirely fair when en- 
forced, for an unpopular law which is violated by general con- 
sent is none the less a valid law, the evasion of which is 
punished. The enforcement of unpopular legislation, although 
condemned as absurd, sometimes occurs, and a change in the 
attitude of the enforcing power may come about unexpectedly, 
thereby making the tacitly permitted an offense against the 
public weal and liable to punishment. 

The decisions uniformly agree that a law which prevents the 
doing of an3rthing on Sunday is well within the police power 
of the legislature and a requirement proper in protecting the 
interests and quiet of the community. If an exception is pro- 
vided by statute, the courts insist that the conditions which are 
required to bring the case within the exception be strictlyj 



472 


LEGISLATION 


adhered to, and such enactments are narrowly construed as 
against the person who seeks to bring himself within the 
allowed limitation. 

The general law in respect of these matters in its attempt to 
carry out proper police regulations and prevent any invasion 
of those things which are for the good of the general com- 
munity has gone too far in many respects when considered 
from a modem and reasonable standpoint. Not but what this 
kind of legislation is good and wise and should protect the 
community up to a certain point; but when it is so far reaching 
and general as to interfere with those things which public 
sentiment expects and requires, the legislature should pass such 
exceptions as will enable the legal doing of certain things 
which are allowed and tolerated by general consent. While a 
certain element of a community may disagree in respect of 
matters which enter into the amusement business, apart from 
that which is clearly harmful and interferes with others’ 
rights, the wishes of the general public should be considered. 

§ 402. The B'ecessity lor New Legdslotion for 'Ae Amusement 
Business. 

The amusement business, like any other, is competitive, and 
unless the manager meets the demands and ideas of the public 
he must submit to financial losses. The amusement business 
cannot thrive when opposed to public favor. The manager 
who prefers to obey the law and refuses to take the chance of 
a violation which the authorities tacitly consent to, loses busi- 
ness and is placed upon an entirely unfair footing with the 
manager who takes the risk and does not heed the law. An 
unrepealed law, though disregarded, is never obsolete and is 
often invoked to cause unexpected and serious hardship. It 



NEED OF NEW LEGISLATION 


473 


is evident that people engaged in amusement enterprises have 
not taken sufficient interest in legislative matters to protect 
themselves and get their rights fairly before the public. For 
many years legislation has been entirely directed to safeguard- 
ing the people against amusement enterprises without con- 
sidering that such business is designed and carried on to 
give the public enjo5nnent, and unless it fulfills that purpose 
and gets sufficient patronage the enterprise is a failure. The 
general laws which regulate a mercantile or manufacturing 
business do not in eveiy respect apply intelligently to the 
amusement business. There is but little similarity between the 
two. In most States public amusements are prohibited and 
only allowed under the permission of a license, which is en- 
tirely optional and can be withheld by the board or official 
having the power of granting the same. At the time of the 
original enactment of so-called amusement laws anything per- 
taining to the stage was considered harmful, and the authorities 
were generally opposed to ever3d:hing coimected therewith. 
From a small beginning the amusement business has grown 
to be a recognized and important power in every large com- 
munity; its managers own and lease valuable real estate, em- 
ploy many people and require much in the way of material and 
labor from other industries. Theater and amusement property 
is generally situated in the most convenient and hence valuable 
part of a city or town, is taxed and is a. permanent and lasting 
business. The old idea of the necessity of a license to insure 
the morality and decency of the entertainment to be given is 
now absurd. When first a license was required it controlled 
a business which was small and considered immoral; it was 
at best an uncertain enterprise in which but little in the way of 
money was involved. To-day theaters represent a permanent 
and large investment, and the business of managing them 



474 


NECESSITY OF LICENSE 


is conducted by responsible men. As in any other business, the 
general laws concerning the public morals regulate and con- 
trol, thus doing away with the need of an amusement license. 
While all public amusements should be properly regulated 
and policed, it is entirely unfair to make a well-recognized and 
financially responsible business the subject of a condition prece- 
dent in the form of a license which is controlled solely and 
arbitrarily by the judgment of one official or some board or 
commission. With as much propriety could a license be re- 
quired of any industry of a private nature on the assumption 
that at some time it might possibly deal in a commodity which 
was against the well-being of the community. On the same 
general principle a license could as well be required of all pub- 
lishing and picture houses on the theory that at some time they 
might manufacture and circulate matter of an obscene nature. 
The amusement business is not in itself bad or pernicious, re- 
quiring such unreasonable regulation; licenses are generally 
granted for a year and without any knowledge of the enter- 
tainments which are to be given; in fact, as the theatrical 
business is now conducted, no theater at the beginning of a 
season can possibly supply a list of the attractions which will 
appear during the year. That such license can be revoked after 
it is granted affords no better guarantee of propriety in the 
conduct of the business than statutes which prohibit anything 
of an immoral or dangerous nature. The license serves no 
purpose that cannot be provided for in the general laws, and 
only makes a business of a private and important nature sub- 
ject to the discretion, will or caprice of some board or individ- 
ual who may err in judgment and thereby deprive an owner 
of the use of his property and the right to conduct his business. 
'Such laws, founded as they are on obsolete reasons and for 
almost forgotten purposes, should be repealed, and intelligent 



LICENSE CONSIDERED 


475 


legislation, more in accord with the times, enacted. Provide 
every reasonable regulation, but not an unfair condition in 
the matter of license. The Sunday laws should be revised 
and made to reflect the desires of the community at large, 
thereby giving no advantage to the law-breaker over the man 
who prefers to keep within the spirit of an obsolete law. 

Legislation which, because of popular clamor, opens the 
door to evasions, perjury and wrongdoing as a possible way 
to do a prohibited thing, which adheres to musty and disre- 
garded laws, with a knowledge of their unfitness and everyday 
violation, is as pernicious as it is unwise, and as unfair as it 
is unnecessary. The theatrical and amusement business has 
every right to ask and expect sane legislation, which shall 
recognize its importance and be based on a proper conception 
of its standing and necessity, rather than on the old idea of 
prohibiting and making onerous a calling anciently considered 
immoral and unnecessary. The original intent and text of 
amusement legislation makes reasonable amendments impossi- 
ble. Entirely new and consistent legislation is needed, which, 
disregarding old conditions and past reasons, starts anew, 
making laws which, while protecting the amusement business, 
recognizes its rights and eliminates unnecessary and unjust 
discretionary powers which control its very existence. The 
business is in no sense so dangerous to the peace, health and 
morals of the community as to need licensed control ; it can be 
governed as any other industry, and if present laws are not 
sufficient for every contingency, new ones can be made which 
will safeguard tlie public. As a business, however, it should 
be permitted without licensed permission, and if improperly 
conducted, promptly interfered with. The license affords too 
many opportunities for unfair dealing without the accomplish- 
ment of anything beneficial for the public ; the sole power of 



476 


LICENSE CONSIDERED 


granting and revoking it is beyond the people, who have 
no voice or choice in the matter, and being discretionary, is 
even exempt from judicial interference. The needed protec- 
tion is clearly through prosecution for a violation of those 
rules which the need of safety and good morals dictates, 
and which insures the conduct of the business within deter- 
mined limits. Any other method of regulation is neither fair 
nor satisfactory to state or individual. 



INDEX 




INDEX 


References are to Pages. 

ABANDONMENT, 

of dramatic composition, 83. 
a defense in equitable proceedings, 422. 

ABSENCE, when excuse for non-performance, 273. 

ACT OF GOD, as excuse for non-performance, 262. 

ACTOR. {See Aetist, Theatrical Contract.) 

ADEQUATE REMEDY AT LAW. {See Equity.) 

ADMISSION, 

right of manager to fix price of, 165, 
right of revocation, 167, 170. 
revocation — no action for trespass, 172. 

ADVERTISEMENTS, 
in program, 377- 

when prevented by injunction, 437. 

ADVERTISING MATTER, what may be required of attraction, 346. 

ADVERTISING SPACE, 375- 

AGE, actual, determines question of minority, 245. 

AGENT, 

of corporation, power to bind, 249. 

{See Master and Servant.) 

AGREEMENT. {See Theatrical Contract.) 

AISLES, idi. 

ALLEGATIONS, in equity must be specific, 452. 

479 



48o index 

References are to Pages. 

AMERICAN DRAMATISTS CLUB, 89. 

AMUSEMENT BUSINESS, 

various enactments help proper regulation of, 461. 
statutes regulating, 465. 

AMUSEMENT, PUBLC- 

right of legislature to regulate, 29. 
legislature may require licenses, 30. 

APPEAL, 

from official’s act, 47. 
necessity of providing for, 261. 

APPLAUD, right of audience to, 231. 

ARTIST, 

recovery for services in unlicensed entertainment, 49. 
status of, 298. 

engaged ^or leading part cannot be required to appear in other, 298. 
rules governing, 309. 

intoxication of, ground for discharge, 310. 
conduct of, 31 r. 

contract with, presupposes ability, 302. 

when restrained from performing elsewhere, 426. 

(^Slee Theatrical Contract.) 

ASSAULT, by employee, when binds manager, 219. 

ASSIGNEES. (See Ownership.) 

ASSUMED NAME does not violate contract, 294. 

ATTRACTION, classes of, defined, 336. 

AUDIENCE, 

conduct of, 231. 

right to applaud and hiss, 231. 

confined to unbiased opinion, 23X. 

not permitted to commit breach of the peace, 232. 

AUSTRIAN FIRE EXPERIMENTS, 151. 

AUTHORITY, necessary* to hind manager for his employee’s act, 216. 



INDEX 

Reierences are to Pages. 


481 


BAGGAGE, ■ 
defined, 367. 

false representations as to, 370, 
stage properties are not, 368 

BAILMENT, 

relation of, with patron to bind manager, 223. 
loss of patron's property, when breach of, 223. 

BILL BOARDS, 
care of, 137. 

to prevent liability for, 139. 

BILL POSTING, to prevent liability for, 139- 

BREACH OF THE PEACE, audience must not commit, by applause or 
hissing, 232. 

BREACH OF CONTRACT, prevented by injunction, 445- 
BREACH OF CONFIDENCE, prevented by injunction, 443 - 
BUILDING, 

right to use as theater, 45. 
determination as to fitness for use, 261. 
outside of, manager's duty over, 127. 

(See License, Police Regulation.) 

BUILDING LAW, change of, as affecting lease, 358- 

CANCELLATION CLAUSE, 34 ^. 
of contract, 346, 348. 

CAPABILITY, implied condition of, 272 

CERTAINTY, necessity of, in description as to quality, 338. 

CHAIRS, when fixtures, 361, 362. 

CHANGE OF LAW, 

effect of, on lease, 260, 358. 
subsequent to making contract, 259. 

COMPETENCY, contract supposes artist's ability, ^ 



482 


INDEX 


References are to Pages. 

COMPUTATION, 
of damages, 386. 
of season, 326, 328. 

COMPUTED DAMAGES, must be fair and consistent, 410. 
COAT ROOM, manager’s liability over, 225. 

CONDUCT OF ARTIST. iSee Artist.) 

CONDUCT OF AUDIENCE. CSee Audience.) 
CONTRACT, 

between manager and artist, 289. 
between manager and attraction, 337. 

CSee Theatrical Contracts.) 

CHARACTER, of artist, 311. 

CHECK AND COAT ROOM, manager’s liability over, 225. 
CHILDREN, 

employment of, and admission of, 463 
statutes regulating, 56, 466. 

CIRCUS, 

under police regulation, 36. 

requires license, 36. 

not a dramatic performance, 55. 

COLORED PERSONS, discrimination against, 187. 

COMMON CARRIER, 

liability of, for loss of baggage, 367. 
must have notice as to baggage, 369. 
damages for loss of property by, 395. 

COMMON LAW, 

as applied to theaters, 25, 
against discrimination, 190. 

CONTRACTOR, 
rule as to, 119. 

and contractee, relation defined, 138. 
liability of person engaging, 139. 
iSee Master and Servant.) 



INDEX 


483 


References are to Pages. 

CONTRACTUAL RELATION, as ground for manager's avoidance ^of 
liability, 220. 

COPYRIGHT, 

what is subject of,, as dramatic composition, 61. 

importance of originality, 62. 

of stage effects, 63. 

how conferred, 69. 

statutes, loi. 

protection, 102, 106. 

what can be protected and how, 105. 

necessity of human interest, 60, 107. 

statutory requirements, 109. 

classification of play, book, etc., IIO. 

of name of play, etc., 113. 

not of general words or terms, 113. 

CORPORATION, 

organized for amusement business, 246. 
cannot exceed corporate powers, 247. 

must comply with laws of state in which it does business, 247, 248. 

power of agent of, to bind, 249. 

necessity of complying strictly with law, 4166. 

signature of, 333. 

COSTUMES, clause in contract as to, 304* 

CRITICISM, 
right of, 233. 

must be fair and reasonable, 233. 

may be of performance, performers, play and production, 233. 
must be free from malice, 234. 

CUSTOM, 

oral evidence to show, 328. 
governing lease, 363. 


DALY V. PALMER, doctrine of, 64. 

DAMAGES, 

recoverable for revocation of ticket of admission, 175, 
guaranteed by clause for liquidated damages, 346. 



484 


INDEX 

References are to Pages. 

DAM AGES— C ontinued. 

liquidated damage clause, 348. 
right of, on breach of lease, 360. 
explained, 383. 

not given for speculative injury, 383. 

must be capable of proof, 384. 

probable profits, 385. 

failure to produce play, 385. 

must be capable of computation, 385. 

what constitutes profits, 386. 

failure to give announced performance, 387. 

fright and mental anguish, 389. 

from revocation of admission, 390. 

honest mistake mitigates, 391. 

where property has been acquired, 391. 

uncertainty of amount, 392. 

must be proximate, 393, 

under terminated contract, 394. 

by act of law, 394- 

for loss by common carrier, 395. 

injured party, duty to reduce damages, 396. 

necessity of reasonable effort to save loss, 397. 

under clause “not to perform elsewhere,^' 397. 

reasonable effort required, 398, 399. 

liquidated damage clause bars equitable relief, 447. 

for enticing away employee, 400. 

time within which action must be brought, 401. 

nominal and liquidated, 405, 410. 

clause in contract providing for liquidated, 407. 

no proof of, required when, 409. 

fine, not liquidated damages, 4x1. 

DANCE, 

public, an amusement, 34. 
not a dramatic performance, 58. 

DEATH, as an excuse for non-performance of contract, 269. 
DEDICATION, to public of dramatic, etc., composition, 82. 
DEFECT, 

manager's liability for, 127. 

{See Manager's Duty.) 



INDEX 485 

References are to Pages. 

DESTRUCTION, of leased premises, 364. 

DISABILITY, 

as an excuse for non-performance, 269. 
when terminating contract, rule of damages, 394. 

DISCRETIONARY POWER, 
in licensor, 31. 
in public officials, 37. 

(See License, Mandamus.) 

DISCRIMINATION, 

manager has, in assigning seats, 187. 
when prohibited by statute, 187. 
state has power to regulate against, 188. 
against race or color, 188. 

does not abridge manager’s rights of regulation, 189. 
statutes against, 190. 

DISORDERLY PERSON, injury to patron occasioned by removal of, 212. 

DISTURBANCE OF PUBLIC PERFORMANCE, defined, 235. 

DRAMA, 

history of, 14. 
in early times, 14* 
in middle ages, 14.^ 
in Shakespeare’s time, 16. 
defined, 53. 

(See Dramatic Performance.) 

DRAMATIC COMPOSITION, 
defined, 56. 

mechanical arrangement not, 56, 65. 
scenery is not, 60. 

necessity of human interest in, 60, 107. 
when subject of copyright, 61. 
importance of originality, 62, 108. 
may consist of arrangement, 62. 
old words to a new air, 62. 
stage effects, 63. 
adaptation, 65. 

ownership at common law, 66, 74 * 



INDEX 


References are to Pages. 

DRAMATIC COMPOSITION— 
title in, how protected, 68, 74» 

author’s rights in unpublished manuscript, 76, 77, 78, 79 - 

violation of common-law rights, 80. 

presentation not publication, 80. 

ownership in alterations and changes, 85. 

right to recite or repeat from, 85. 

must be moral and not libelous, 86. 

liability for wrongful invasion of, 89. 

statutory protection in various states, 91, 92, 93, 94 > 9 S> 9 ^* 97 > Pl- 
under copyright statutes, lor, 105. 
translation of, 103. 
author’s rights to sell, 104. 
what may be protected, 104. 
rights of employer to work of employee, 108. 
title or name of, 109, in, 112. 
protection of name or title in equity, 444. 
inmnction will issue to prevent wrongful use of, 421. 

X.See Copyright, Play, Title.) 

DRAMATIC PERFORMANCE, 
defined, ii, 53. 
licenses for, ii. 

must embody element of human life, 54. 

includes opera, 54, 

and circus contrasted, 55. 

pantomime and marionette show as, 55. 

stage dance not, 58. 

necessity of dramatic element, 59. 

scenery not, 59. 

illustrated song, 59. 

presentation by, not a publication, 75. 

DRAMATIZATION. ( 5 *^^ Dramatic Composition.); 
EJECTMENT, 

right of manager to eject, 176. 

how accomplished, 209. 

can be without aid of police, 209. 

force allowable in, 21 1, 

exercise of right must be reasonable, 21 1. 

(5*^^ Tickets.) 



INDEX 


487 


References are to Paces. 

E?L‘IZABETHAN’ THEATERS, 18, 

EMPLOYER, 

right to works of employee, 108. 
liability for acts of employee, 218. 

EMPLOYEES, 

manager’s responsibility for acts of, 213. 

acts of, to bind manager must be within scope of authority, 216. 

ENTICEMENT, of employee from employer, 400. 

EQUITY, 

protects privacy of photograph, 378. 

prevents wrongful removal of fixtures, 362. 

benefit of right to, contrasted with remedy at law, ’419. 

jurisdiction of, determined by service; 418. 

no relief in, when dramatic composition has been published or 
abandoned, 422. 

necessity in, of proof of title, 423* 

adequate remedy at law prevents intervention of, 418. 

cannot prevent crime or assess damages for tort, 417. 

will prevent impending injury, 416. 

contract involved must be just, clear and reasonable, 437. 

will enjoin use of misleading advertisements, 437. 

when protecting from invasion of common-law right, 443. 

will not compel lease of theater, 446. 

relief in, in instances of penalty, 447. 

relief in, barred by liquidated damage clause, 447. 

negative clause must contain clear and explicit prohibition. 435. 

necessity of negative clause in contract, 435. 

must be sought without unreasonable delay, 448. 

parties to proceedings in, 450. 

necessity of specific allegations in, 452. 

EXCUSE, of performance of contract, 350. 

EXCLUSION, 

of notorious characters, 191 
on account of dress, 192. 

EXPLICIT LANGUAGE, required in contracts, 239, 351. 



488 INDEX 

References are to Pages. 

FALSE REPRESENTATIONS AS TO CONTENTS OF TRUNK, 370. 
FINE, 

right of manager to impose, 313. 
not liquidated damages, 41 1. 

(See Liquidated Damages.) 

FIRE, 

manager’s duty to protect patron from, 143. 

prevention and control of, 144. 

unwise legislation concerning, 146. 

resisting curtain, 148. 

ventilation over stage, 149. 

stage hands, 154. 

inspection, 155. 

^FIRST-CLASS” defined, 356. 

FIXTURES, 

as applied to theaters, 360, 361. 

wron^ul removal of, prevented by injunction, 446. 

wrongful removal of, prevented, 362. 

“FLYING JENNIE” a public amusement, 37. 

FORCE, when allowable to accomplish removal, 21 1. 

FOREIGN CORPORATIONS defined, 247. 

(See Corporations.^ 

FORGERY OF TICKET, 204. 

FREE SHOWS, injury to spectator of, 136. 

FREE TICKETS, 

the issuing of, restrained by injunction, 445. 

FRIGHT AND MENTAL ANGUISH, 389. 

GOD, act of, as excuse for non-performance, 273. 


HISS, right of audience to, 231. 
HISTORY, of theater, iz 



INDEX 489 

Rkfesences ase to Pages. 

HONEST MISTAKE of ticket seller, 391. 

‘'HOUSE” CONTRACT, 340. 

HUMAN INTEREST, necessity of, in dramatic composition, 60. 

ILLEGAL CONTRACT, 
nature and effect of, 277. 
cannot be ratified, 278. 

subject matter of, governs application of rule, 281. 
contracts are, when made or performed oh Sunday, 282. 
contracts are, if without license, 283. 

ILLEGAL PERFORMANCE, 
when unlicensed, 49. 
cannot be subject of lease, 357. 

ILLNESS, 

as a termination of theatrical contract, 270. 
permanent and temporary contrasted, 271. 
necessity of notice of, 273. 

IMMORAL PERFORMANCE, 50, 279. 
what constitutes, 279. 
eflFect on lease, 357. 
regulations and prohibitions, 459. 
prevented by injunction, 438. ^ 

IMPLIED CONDITIONS IN THEATRICAL CONTRACTS OF 
CAPABILTY, 272. 

IMPOSSIBLE CONTRACTS, 253. 

IMPROPER CONDUCT CONSTITUTES TRESPASS, 210. 

INJUNCTION, 
remedies by, 415. 

issuing of within discretion of court, 415. 

to prevent impending injury, 415. 

facts must be clear to entitle relief by, 418. 

to prevent unauthorized use of dramatic composition, 4^1. 

to prevent party from rendering services, 423. 

to prevent wrongful use of premises, 431. 



490 INDEX 

References ARE to Pages.- 

INJUNCTIONS— 

to prevent seduction of employee, 431, 

to prevent services only when such are unique or extraordinary, 432. 

to prevent giving of immoral show, 438. 

to prevent nuisance, 438. 

to prevent wrongful use of photograph, 442. 

protection by, of use of lithographs and wood-cuts, 443. 

to protect name or title of composition, 444. 

to restrain use of manuscript wrongfully acquired, 444. 

to restrain the issuing of free tickets, 445. 

to prevent continued breaches of contract, 445. 

to prevent wrongful removal of fixtures, 446. 

to prevent the doing of a prohibited act, 448. 

relief by, must be sought without unreasonable delay, 448. 

service of, 452. 

notice of, 452. 

to prevent breach of confidence, 443. 

INJURY TO PATRON OR TICKET HOLDER, 

to property of patron attending place of amusement, 21. 

(See Manager, Patron.) 

INJURED PARTY, DUTY TO REDUCE DAMAGES, 396. 
INSPECTION TO PREVENT FIRE, 155. 

INTOXICATED PERSON, removal of, causing injury to others, 213. 
INTOXICATON, ground for discharge of artist, 310, 

IROQUOIS THEATER DISASTER, 158. 


LEASER of theater, 355. 

distinction between, and license, 363.- 

breach of, gives right to immediate action, 36a 

when governed by custom, 363. 

fixtures of theater, 360. 

specific performance of, 356. 

of theater, not compelled in equity, 446. 

cannot be had for illegal purposes, 357. 

destruction of premises, 364. 

change of law affecting,- 260, 358. 

covenant to maintain property at agreed standard, 355. 



INDEX 


491 


References are to Pages. 

LEGAL EXCUSE FOR NON-PERFORMANCE OF CONTRACT, 2^4: 
LEGISLATURE, 

right to regulate public amusements and require licenses, 29, 30, 31. 
discretion not to be reviewed, 31. 
power to establish police regulations, 32. 
regulations must be reasonable, 33. 

LICENSE, 

of public amusements may be required by legislature, 29, 30, 31. 

discretionary power of licensor, 31. 

legislature may require two, 32. 

not required for side shows, 36. 

not required for free shows, 37. 

may be withheld by public officials, 37. 

may be revoked, 37. 

necessity of obtaining, 39, 396, 466. 

compelled when, by mandamus, 40. 

must not amount to a tax, 42. 

refusal to grant, 45. 

determining right to use building, 45; 

terms of must be strictly complied with, 47. 

necessary to legality of services, 49. 

ticket speculators, when licensed, 198, 199. 

failure to procure makes acts illegal, 283. 

damages for revocation of, 390. 

distinction between, and lease, 363. 

can be required of a place of amusement, though a private busi- 
ness, 459. 

{See Ownership.) 

LIQUIDATED DAMAGES, 
defined, 407. 
clause, 407. 

a fine to be recoverable must be, 316. 

under clause for, no proof of damages required, 409. 

exact expression need not be used, 410. 

(See Damages.) 

LKTHOGRAPHS, 
defined, 375, 37^. 

wrongful use of, prevented in equity, 443. 



492 INDEX 

References are to Pages. 

LOSS OF PROPERTY, 

of persons attending place of amusement, 221. 
entrusted to care of management, 224. 

LUMLEY V. WAGNER, 
doctrine of, 426. 

MAINTENANCE OF THEATERS. (See Police Regulations.) 

MALICE, necessity of, to constitute criticism a libel, 234. 

MANAGER, 

duty of, to protect patron from injury, 117, 125. 

burden of due care on, 118. 

iwhen occupier of leased land, 119. 

and independent contractor, 119. 

duty of, reasonable care, 120. 

rule as to duty of, varies in each case how, 122. 

duty of, extends to construction, maintenance and management, 123. 

duty of, general rule as to, 125. 

patron must not misbehave, 126. 

not liable as insurer, 126. 

liability of, as to outside of building, 127, 

liability of, as to defect, 127. 

liability of, for injury caused by performance, 130. 

liability of, to negligent patron, 132! 

duty of, to protect from fire, 133, 143. 

liability of, where entertainment is free, 136. 

bill boards, 137. 

bill posting, 139. 

right of, to fix price of admission, 165. 
right of, to revoke admission, 167. 
right of, to reject, 176. 
right of, to exclude notorious character, 191. 
right of, to refuse admission because of dress or uniform, 192. 
right of, to refuse admission on ticket purchased of ticket specu- 
lator, 197. 

right of, to exclude, 200. 

right of, to eject, how accomplished, 209, 

not bound to sell reserved seats to first comer, 183. 

statutes preventing discrimination by, 190. 



INDEX 493 

References are to Pages. 

MANAGER — Continued, 

responsibility of, for wrongful acts of employees, 213. 
test of liability of, for wrongful acts of employees, 214. 
liability of, for assault committed by employee, 219. 
liability of, for loss of or injury to property of patron, 221. 
liability of, where property is entrusted to care of, 224. 
liability of, where check and coat rooms are established, 225. 
liability of, for loss of patron's property by theft, 226. 
right of, to make rules, 312. 
right of, to impose fines, 313. 
liability of, for acts of reg^ilar police officer, 215. 
test of liability of, for wrongful acts of employees, 218. 
liability of, for permitting a common nuisance, 441. 

MANDAMUS, 

will not lie when, 40. 

must be invasion of clear legal right, 40. 

distinction between mandatory and discretionary statutes, 41. 

to correct abuse of power, 43. 

will not lie to correct discretion, 44. 

to compel license, 40, 44. 

MANUSCRIPT, wrongfully acquired protected in equity, 444. 

MARRIED WOMEN, right of, to enter into contracts, 243. 

MECHANICAL ARRANGEMENT, not a dramatic performance, 57. 

MERRY-GO-ROUND A PUBLIC AMUSEMENT, 37. 

METCALF CASE, doctrine of, 200. 

MINORS, status of, defined, 244. 

MIRACLE OR MYSTERY PLAYS, 14- 

MISLEADING ADVERTISEMENTS PREVENTED IN EQUITY, 
437 , 

MISTAKE IN SALE OF TICKET, 176. 
when corrected in equity, 240. 

MODERN LEGISLATION, necessity of, considered, 470 . 

MORALS OF ARTIST. (.See Character.) 



494 INDEX 

References are to Pages. 

MUSICAL COMPOSITION. (See Dramatic Composition.) 

NEGATIVE CLAUSE, 

in contract not to perform elsewhere, 428. 
when necessary, 435. 

NEGRO- MINSTRELSY, 10. 

NOMINAL DAMAGES, defined, 405, 406, 407. 

NON COMPOS MENTIS, persons when, cannot contract, 242. 

NOTICE, 

against ticket speculators should be displayed, 197. 
to leave, necessary to make patron trespasser, 209. 
necessity of, in case of artist’s illness, 273. 
two weeks’ clause, 324. 

«NOT TO PERFORM ELSEWHERE,” damages provided for, 397 . 

NOTORIOUS CHARACTER, right to exclude, 191. 

NUISANCE, 
defined, 438. 
public and private, 438. 
restraint of unlawful business as a, 440. 


OFFICIALS, 

cannot impose tax, 42. 
abuse of power, 43, 

power over use of building as theater, 45. 

ORAL TESTIMONY, not admitted to show forgotten terms of theatrical 
contract, 240. 

ORIGINALITY, 

necessity for purposes of copyright in dramatic composition, 62, 
may consist of arrangement, 62. 
old words to new air, 62. 
of scenic effects, 63. 

OUTSIDE OF BUILDING, manager’s duty over, 127. 



INDEX 


495 


References are to Paces. 

OWNERSHIP. iSee Title.) 

in dramatic compositions at common law, 66. 
in play or musical composition, 73. 
in assignees and licensees, 83. 
wrongful invasion, remedies, 89. 
criminal liability for invasion of, 89. 

PANIC, 143, 160. 

PART, of artist as provided in contract, 299. 

PARTIES, to proceedings in equity, 450. 

PASSAGEWAYS, crowding of, police regulation, 48. 

PATRON, 

must not misbehave or violate conditions of admission, 126. 

may go or sit where, 129. 

injury to, caused by performer, 130. 

must not be negligent, 132. 

where entertainment is free, 136. 

injury to, occasioned by removal of disorderly person, 212. 
duty of manager as to, 215. 

{See Manager.) 

PENALTIES. {SeeTim,^,) 

PENALTY, equity protects against in contract, 447- 

PERFORMANCE, 

does not constitute a theater, 10. 

includes dramatic and musical entertainments, 10. 

not a legal publication, 80, 

of contract, impossibility of, when no legal excuse, 254. 

of contract, made impossible by law, 256. 

act of God as an excuse of, 262. 

immoral, 279. 

of artist, details of, 298. 

place of, must be properly described, 301. 

quality of, 337. 

not given, damages recoverable, 387- 
PERFORMER. {See Artist.) 



496 INDEX 

References are to Pages. 

PERSONAL CONTRACT, no specific performance of, 426. 

PERSONAL SERVICES, considered in equitable relief, 423. 

PHOTOGRAPH, 

wrongful use of prevented, 442. 

right of individual to, 377. 

rights of private and public persons, 378. 

PICTURE {See Photograph and Lithograph.) 

PLAY, 

failure to produce, 385. 

{See Dramatic Composition.) 

PLAY HOUSES, 
in England, 17. 
in America, 23. 

POLICE, 

not necessary in ejecting patron, 209. 
liability of manager for acts of, 215. 
presumption as to official character, 216. 

POLICE REGULATION, 

rule as to private business, 455. 

as to matter of erection, protection and maintenance of places of 
amusement, 457. 

power of legislature to establish, 32. 
includes maintenance and control, 32. 
must be reasonable, 33. 

PRESENTATION OF PLAY, not a publication, 75. 

PRIVACY, in photograph protected, 377. 

PRIVATE BUSINESS, 
place of amusement a, 459. 
subject to police regulation, 455. 

PROHIBITED ACT, prevented by injunction, 448. 

PROBABLE AND PROVABLE PROFITS. (See Damages.) 

PROFITS.' (See Damages.) 



INDEX 497 

References are to Pages. 

PROGRAM, advertisements in, 377. 

PUBLIC CHARACTER, picture of, 379- 

PUBLIC AMUSEMENTS, 
what are, 35. 

statutes as to, how construed, 35. 
various constructions, 35, et jeq. 
illegal when unlicensed, 39. 
dance, when, 34, 
on Sunday, 469. 

PUBLIC PERFORMANCE, disturbance of, 235. 

PUBLICATION OF DRAMATIC PERFORMANCE, 
presentation is not, 75, 80. 
what constitutes, 81. 
notice not necessary, 81. 
must be intentional, 87. 
terminates right of exclusive use, 88. 
prevents relief in equity, 422, 

PURCELL v. DALY, 177 , 197- 

PURITANS, 

attitude toward theaters, 22. 
opposition to amusements, 24. 

iJUALITY OF performance; 337- 
s 

RACE OR COLOR, discrimination against, 188. 

RECITE, right to repeat from play, 85. 

REDUCTION OF DAMAGES, duty of injured party, 396. 

REFUSAL TO GRANT LICENSES, 45- 
{See License, Mandamus.) 

REGULATIONS, concerning erection and maintenance of places of 
amusement, 457. 

REASONABLE REGULATIONS, when not discrimination, 187. 
REGULATIONS. {See Pouce Power.) 



498 INDEX 

References are to Pages. 

REMEDY AT LAW. {See Equity.) 

REMOVAL, of fixtures wrongfully, 362. 

REQUIREMENTS OF LAW, change of, affecting lease, 358. 

RESTRICTIONS, how construed, 34, 35- 

RESERVED SEATS, 

manager may refuse to sell, 183. 
public has no right to, 183. 
sale of a constitutional right, 185. 
legislature, power of, over, 185. 

RETURN CHECKS, defined and explained, 179. 

REVOCATION, rights of, not abridged by statutes against discrimina- 
tion, 189. 

RULES, 

right of manager to make^ 3I2. 
must be reasonable, 312. 


SACRED CONCERTS, 469. 

SATISFACTORY SERVICES. {See Services.) 

SATURDAY NIGHT PERFORMANCES, 25. 

SCENERY, 

in Shakespeare's time, 16. 
first movable, 18, 
not a dramatic composition, 60. 
failure of carrier to deliver, 37. 
when a fixture, 361, 362. 

SEASON. {See Theatrical Season.) 

SEATS, 

where all sold purchaser can demand back admission fee, 186. 
where all sold, patron cannot occupy higher priced unsold scat, 186. 
{See Reserved Seats.) 

SECOND-CLASS, defined, 356. 



INDEX 

References are to Pages. 

SEDUCTION OF EMPLOYEE, prevented in equity, 431. 
SERVICE OF INJUNCTION, 452. 

SERVICES, 

proof of extraordinary ability, 434. 
to be satisfactory, 318. 

must be unique to give relief in Equity, 432. 

SETTLEMENT, method of, 340. 

SHARING CONTRACT, 337, 340. 

SHAKESPEARE’S TIME, the drama and stage, 16. 

SIDE SHOWS, do not require license, 36. 

SIGNATURE OF PARTIES TO CONTRACT, 
may be by pencil, initials, cross or mark, 332. 
of a corporation, 333. 

SPACE, for advertising purposes, 375. 

SPECIFIC PERFORMANCE, 

not decreed of contract involving personal services, 423. 
not decreed to compel lease of theater, 359. 

SPECIFIC THINGS, required in theatrical contract, 342. 

SPECULATIVE INJURY. {See Damages.) 

SPECULATORS. {See Ticket Speculators.) 

SPRINKLERS AND WATER CURTAINS, 153. 

STAGE, 

what constitutes, 10. 
first use of, 13. 
in the sixteenth century, 15. 
degeneration of, 20. 
in Cromwell’s time, 22. 
opposition to, in America, 29, 
a fixture when, 362. 
properties are not baggage, 368. 

STAGE HANDS, in case of fire, duties of, 154. 


499 



500 


INDEX 

References are to Pages. 


STATUTES, 

restrictive, how construed, 34. 

against discrimination, 190. 

giving control over amusements, 203. 

STAND, overlooking exhibition grounds, 446. 

STREET SHOW?, 136. 

SUNDAY, 

contracts made or performed on, 278. 

^ laws regulating amusements, 468. 


TERMINATION OF THEATRICAL CONTRACT, 324. 

THEATER, 
defined, 9. 

! modem, g. 
legal definition, 10. 
performance does not constitute, 10. 

* mere temporary occupancy does not constitute, 10* 
use of theatrical paraphernalia, lo. 
first in England, 17. 

. first in America, 23. 

Elizabethan, 18. 

^ under common law, 25. 

1 opposition to, in America, 29. 
must be licensed, 29. 
is private property, 165, 204. 

(See Licenses, Police Regulation.) 

THEATRICAL CONTRACT, 
explained, 239. 
necessity of intent, 239, 351, 

oral testimony not admissible to show forgotten terms of, 240. 
must be legal and moral and not vague, 241. 
parties to, 242. 

of persons non compos mentis, 242, 
of married women, 243. 
of minors, 244. 



INDEX 


References are to Pages. 
THEATRICAL CONTRACT— 
of corporations, 246. 
consideration of, 253. 
when impossible of performance, 253. 
implied conditions in 256. 

when performance of is made impossible by law, 256. 

death or disability as affecting, 269. 

illness as a termination of, 270. 

implied condition of capability in, 272. 

when illegal and impossible, 277. 

between manager and artist, 289. 

suggestions as to, 289. 

in detail, 291. 

description of persons in, 291. 

names of parties in, 291. 

assumed name does not invalidate, 292. 

restrictive covenant as to engagement, 294. 

covenant in, not to perform elsewhere, 294. 

covenant in, for restrictive services of artist, 295. 

usage cannot be incorporated into, 296. 

duties of artist and details of performance under, 298. 

standard of part as provided for in construction of, 300. 

incompetency justifies termination of, 302. 

general provisions as to various matters, 323. 

notice of termination of, 324. 

necessity of description as to quality, 338. 

between theater and company, 340. 

sharing clause, 340. 

method of settlement, 340. 

specific things required, 342, 344. 

advertising matter, 346. 

right of cancellation, 346, 347, 348. 

excuse of performance clause, 350, 

when .terminated, damages, 394- 

THEATRICAL SEASON, 
what constitutes, 326. 
oral evidence admissible to explain, 328. 
an entire contract, 328. 



502 INDEX 

References are to Pages. 

TICKET TO PLACE OF AMUSEMENT, 
a revocable license, i66, 170. 
deiined, 168. 

what ticket contract calls for, 169. 

revocation of, action for, 173. 

mistake in sale of, as to date, 176. 

conditions of, 179. 

return check, 179. 

sale of, with reserved seat, 183. 

right to refuse sale of, 185. 

sale of reserved, constitutional right, 185. 

when all sold, 186. 

holder of, can be excluded if notorious character or because of dress, 
192. 

forgery of, 204. 

TICKET SPECULATORS, 
their standing, 197. 
the doctrine of Purcell v. Daly, 197. 
manager can refuse admission on ticket purchased of, 197. 
licensed by authorities does not alter manager’s rights, 198. 
rights of public against, 203. 

when manager can refuse admission on ticket purchased of, 202. 
notice against, should be displayed, 197. 

TIME, 

sufficient to discover theft, 128. 
within which action must be brought, 401. 

TITLE, 

in dramatic and musical composition protected, 68. 

methods of protection, 69. 

of assignee and licensee, 83. 

good faith of user of, 84. 

in alterations and changes, 85. 

necessity of proof of, in equity, 423. 

in translation, 103. 

in dramatization, 103. 

TITLE OF PLAY, BOOK AND MUSICAL COMPOSITION, 
must be original, 109. 
how protected, ni. 

when evasion of copyright statute, 113. 
use of, in bad faith, 114. 



503 


INDEX 

References are to Pages. 

THEFT, of patron's property from manager, 226. 

TRANSLATION, of dramatic composition, 103, 

transportation, 

rule as to, of artist, 305. 
agreement of manager as to, 322. 
after notice terminating contract, 330. 

TRESPASS, 

no action for, on revocation of admission, 172. 
constituted by improper conduct, 210. 

TRESPASSER, patron becomes, on notice to leave, 20p, 

TWO WEEKS' NOTICE CLAUSE, 
explained, 324. 

must be actually given as provided in contract, 325. 

UNAVOIDABLE CASUALTY, explained, 192. 

UNCERTAINTY, as to amount of damages, 392. 

UNIFORM, wearing of, sufficient ground for exclusion, 192. 
UNREASONABLE DELAY, a bar to equitable relief, 448. 

USAGE, cannot be incorporated into theatrical contract, 296. 

VENTILATORS, over stage, I49* 

VOID CONTRACTS. (See Sunday, Maeeied Women, Illegal Con- 
tracts.) 

VOLUNTARY SPECTATOR, I33- 
(See Manager, Patron.) 

WALL, between stage and proscenium, 147. 

WATER CURTAIN, 153- 

WRONGFUL ACT OF EMPLOYEE, when binding on employer, 217. 

WRONGFUL USE, 

of dramatic composition, 84- 
of premises, enjoined, 431.