Eddy v. American Amusement Company

TAGGART, J.

Action for damages for breach of contract. Demurrer to complaint was sustained without' leave to amend and judgment entered in favor of deferidant.

The complaint alleges the making of an agreement between plaintiff and defendant on December 1, 1906, whereby the former, in consideration of the payment to him of a salary of $250 per week, board and transportation, agreed to furnish to and perform at each performance given by the latter during the regular traveling season of 1907: “Two acts (only) high wire act', acrobatic act, and none of the Eddy Family to go

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in entry or parades. The Eddy Family are to have a real stateroom large enough for all the family in the Pullman sleeping car, and their engagement for the season of 1907 is not to be less than (30) thirty weeks (guarantee),” etc. That before the time when plaintiff was to commence to perform such duties under the contract, to wit, on or about January 24, 1907, defendant repudiated the contract. That it was then too late for plaintiff to procure employment elsewhere for the season of 1907; that he had not been able to do so, and had expended ,$400 in preparation to perform his part of the contract, and which he is ready, willing and able to do, but that defendant refuses t'o permit him. Alleges that two weeks’ salary is due under the contract, or $500, and further damage in the sum of $7,000.

The copy of the contract attached to the complaint shows it to have been signed, “Wm. Eddy for Eddy Family, Party of the second part.” The demurrer goes to the capacity of plaintiff to sue; defect of parties plaintiff because “the Eddy Family” is not joined; misjoinder of causes of action, to wit, of an action for wages with an action for breach of contract; ambiguity, uncertainty and unintelligibility arising from the failure to clearly allege either of said causes of action, and from the failure to clearly specify whether the contract is that' of plaintiff or the contract of “the Eddy Family.”

The defects upon which these several special grounds of demurrer are predicated are also urged to sustain the general ground, that there is no cause of action stated on behalf of plaintiff because of the uncertainty of the terms of the contract pleaded, and because the signature of plaintiff thereto is as agent of “the Eddy Family,” and there is no obligation on the part- of the latter to do or perform any act thereunder.