Gschwander v. Cort

Strahan, C. J., delivered tbe opinion of tbe court. Tbe meaning of two clauses of the contract have been presented, one by defendant and tbe other by plaintiff. Tbe defendant relies upon this clause of tbe contract: “In case tbat tbe performance of tbe undersigned should prove incompetent or unsatisfactory to the party of the first part, said party of tbe first part shall have tbe right to terminate this contract at any time, and shall not be held liable for any damages for such termination or for any wages after such termination. ” Tbe defendant claims that be bad a right under this part of tbe contract to terminate it when be saw proper to do so, and of tbat be was made [516] the sole judge by the terms of the contract itself. The plaintiff contends that the foregoing clause is modified by this provision: “The engagement holding good until it has been faithfully fulfilled by the parties of the second part, or canceled by the party of the first part for intoxication, vulgarity or infringement of the rules by the parties of the second part. ” The rule of construction is, that each and every part of a contract must be so construed that all may have effect, if it can be done. Looking at this entire contract, and its manifest object, the first clause may properly be held to refer to the competency of the plaintiff’s Tyrolean Warblers and their ability to give satisfaction to the defendant; and the other clause relates entirely to the personal conduct of the Warblers in and about the defendant’s theatre. The two clauses relate to different subjects and were inserted for different purposes. The 'last clause does not in any way limit or affect the first. If the defendant had alleged in his answer that the performance of the Tyrolean Warblers proved incompetent or unsatisfactory to him, and that he terminated the contract for that reason, an altogether different question would have been presented. It would have then become necessary to determine • whether or not the contract sued on is within the principle announced in Zaliski v. Clark, 44 Conn. 218; 26 Am. Rep. 446; Brown v. Foster, 113 Mass. 136; 18 Am. Rep. 463; McCarren v. McNulty, 7 Gray, 139; Bucksport etc. R. Co. v. Inhab. of Brewer, 67 Me. 295; Plano Mfg. Co. v. Ellis, 68 Mich. 101; Gibson v. Cranage, 39 id. 40; Hoffman v. Gallagher, 6 Daly, 42; Gray v. Central R. R. Co., 11 Hun, 70; Wood R. & M. M. Co. v. Smith, 50 Mich. 565; 45 Am. Rep. 57; Benjamin on Sales (Bennett Ed.), pp. 560, 561, note; Singerly v. Thayer, 108 Pa. St. 291; 54 Am. Rep. 715, and note. But the defendant did not make this question in his answer. He tendered a different issue altogether, and having been defeated on it before the jury, seeks to try a different question in this court. It is true the complaint is somewhat faulty in the manner of assigning breaches of the contract sued on. It is alleged that the defendant wrongfully and without cause discharged [517] plaintiff and bis “Gschwander Trio” and ref used to permit them to serve as aforesaid, though they were ready and willing to serve. It would have been better pleading to have followed the wording of the writing in assigning breaches, but we are not trying this case now on demurrer, but are considering the sufficiency of the complaint after verdict. In such case a more liberal intendment prevails in support of the judgment and which we think ought to be invoked in this case. Aiken v. Coolidge, 12 Or. 244; Houghton v. Beck, 9 Or. 325; Andros v. Childers, 14 Or. 447; Willer v. O. R. & N. Co., 15 Or. 153. It follows that the judgment appealed from must be affirmed.