Hawksworth v. Durant

Bijur, J. This action was brought to recover upon a contract entered into between plaintiffs, as parties of the first part, and defendant and another, parties of the second part. In substance it provided that the parties of the first part should act as managers for the parties of the second part in their .capacity as teachers of dancing and public performers in that art. The third clause of the contract reads as follows: “ Third. That for their services as managers as aforesaid the parties of the first part shall receive twenty (20) per cent or less according to circum [150] stances — to be decided upon by mutual agreement of all moneys earned by the parties of the second part or either of them, by teaching dancing and from fifteen' to twenty-five per cent of all moneys earned by the parties of the second part by exhibition dancing.” The demurrer was interposed on the ground that the complaint does not state facts sufficient to constitute a cause of action, and also that there is a defect of parties defendant. For some reason, which is not explained, the second ground of demurrer does not appear to have been passed on by the learned judge below; and as to the first ground he was of opinion that there was a mutuality of agreement. It is perfectly manifest that there is a defect of parties defendant, the agreement-being joint both as to the' parties of the first part and the parties of the second part, and that, therefore, the omission to make the other party, who is jointly liable with defendant, a party to the action is fatal. As to the so-called agreement itself, it seems to me to be equally apparent that no term's of compensation have been fixed, it being evidently contemplated in the clause which I have quoted that the agreement was incomplete and that a binding agreement would be made substantially. There is, therefore, no agreement. Petze v. Morse Dry Dock & R. Co., 125 A.pp. Div. 267; affd., 195 N. Y. 584; Mayer v. McCreery, 119 id. 434. Guy and Gavegan, JJ., concur. Order reversed, with ten dollars costs and disbursements, and motion of defendant for judgment on the pleadings dismissing the complaint granted, with costs to appellant.