Jewell v. Colonial Theater Co.

HALL, J.

Plaintiff recovered judgment against all the defendants for the principal sum of $300, and the defendants appealed from the judgment and the order denying their motion for a new trial.

Defendants jointly demurred to the complaint, generally, and upon the grounds of uncertainty and ambiguity. The demurrer was properly overruled. It fairly appears from the complaint that defendants are indebted to plaintiff in the gross sum of $506.75 for services rendered as an actress, and for traveling expenses incurred under an express contract, whereby defendants agreed to pay plaintiff said sum therefor. It was not necessary for the complaint to show how much was for services and how much was for traveling expenses. Any uncertainty in this regard could have been cured by a bill of particulars. (Code Civ. Proc., sec. 454;

Pleasant

v. Samuels, 114 Cal. 34, [45 Pac. 998];

McFarland,

v. Holcomb, 123 Cal. 84, [55 Pac. 761].)

Defendants in a joint answer denied the allegations of the complaint, and set up a counterclaim in the sum of $350 for money alleged to have been advanced and loaned to plaintiff by defendants.

[683]

The court found, that defendants were indebted to plaintiff in the sum of $300 for services rendered and for traveling expenses incurred, under an express contract, whereby defendants agreed to pay plaintiff said sum, and found against defendants on the counterclaim; and the main question presented by the record is as to the sufficiency of the evidence to sustain these findings.

Plaintiff was engaged at New York by Frank Bacon, acting for Martin Kurtzig. The contract was in writing and signed “Izetta Jewell. Martin Kurtzig, by Frank Bacon,” and by its terms plaintiff was engaged as an actress to play leading business for a season of fifty-two weeks, beginning on or about September 17,1906, at a weekly salary of $100 per week. The contract also provided that “the said manager shall pay all expenses of transportation of the person and baggage of the said actor during travel and fare both ways. This contract may be canceled at any time after the first performance by either party giving two weeks’ notice in writing to the other.”