Drake v. Allen

Lathrop, J. This is an action for breach of an alleged oral agreement to employ the plaintiff, an actress, for the fall and winter season of 1898 and 1899, thirty-five weeks at $100 a week. There was evidence that the plaintiff, at the request of the manager of the defendants’ theatre in Boston, one Emery, went there at his request, on trial for two weeks, in April, 1898, and that an agreement was subsequently entered into between her and Emery, covering both the summer season of 1898, and the fall and winter season following; that she then signed a contract in writing for the summer season, at the salary of $70 a week, and this contract contained the following clause: “ This contract can be cancelled or annulled by either party upon giving two weeks’ notice in writing.” The plaintiff contended that at the same time it was orally agreed between her and Emery that’ she should perform at the defendants’ theatre, at the salary of $100 a week, for the fall and winter season, unconditionally, without the right to terminate by notice, and that she consented to enter into the contract for the summer season in consideration of the absolute engage [200] ment made at the same time for the fall and winter season. The defendants denied that any agreement was made for the fall and ■ winter season, and alleged that the only agreement was for employment for the summer season by the written contract before stated ; but that they subsequently offered to employ the plaintiff, and tendered to her a written contract for the fall and winter season, at a salary of $70 a week, which contained the same provision for termination by notice as the contract for the summer; and that she declined to sign it. No question is made of the authority of Emery to bind the defendants; nor is it disputed that the testimony of the plaintiff warranted the jury in deciding in her favor. The only exceptions relied upon are to the admission of portions of the plaintiff’s testimony. It is contended that because a written contract was made for the summer season, no evidence of conversations prior and relating thereto was admissible. But the plaintiff did not seek to vary or control this contract. She was simply relating what took place at a certain interview when the agreement for the fall and winter engagement was made. We do not see that the defendants were in any way harmed by the admission of the evidence. Exceptions overruled.