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"The most frequent application has been in cases of actors and actresses of established reputation. Contracts for their services often stipulate that they shall not perform elsewhere during their engagement with a particular manager. Their services being extraordinary and special, an injunction is generally granted against the breach of such a stipulation. It will likewise be granted when an artist agrees to work for the complainant and for no one else."

In the argument in this court counsel for the defendants insisted that the contract between the parties is so lacking in equitable mutuality that a court of equity should not enforce it. We are not impressed by the argument. The contract binds the complainant to give the defendants employment for at least 20 weeks in the theatrical year, "not necessarily consecutive," for which the plaintiff is bound to pay a certain specific amount. The contract also binds the defendants to render their services to the plaintiff for a like number of weeks at least, and to do so for the specified salary. That there is mutuality of obligation in such an agreement is too plain for controversy, and mutuality of obligation is sufficient to justify the issuance of an injunction to restrain the breach of the agreement if the services to be rendered are unique, special, or extraordinary, and the contract be not otherwise inequitable or oppressive. Whether the contract is inequitable or oppressive will be considered in a subsequent part of this opinion.

An application for an injunction in a case like this does not depend, as counsel for the defendants in his argument in this court seemed to think, upon the principle applicable to cases for specific performance. It is not necessary in the present case for us to inquire as to what the doctrine of mutuality means in cases of specific performance. There is a distinction between actions brought to compel the specific performance of an affirmative covenant and those which are brought to restrain by injunction the breach of a negative covenant in the same agreement. It is familiar doctrine that courts of equity do not exercise their jurisdiction to grant the remedy of an affirmative specific performance of a contract for personal services. This they decline to do, because they cannot in any direct manner compel an actor to act or a singer to sing. But the rule is established in England and in this country that the courts of equity may restrain by injunction the breach of a negative covenant by which an actor or a singer of unusual gifts has agreed not to act or not to sing in a specified period, except under the management of the other party to the contract. That this may result or may not result in indirectly compelling the specific performance of the affirmative covenant is not a matter with which this court needs in the present case to concern itself. There has been a great difference of opinion, especially in the English courts, over the question whether an injunction can issue to prevent the breach of a contract unless it contains an express negative covenant. But with that question also we are not concerned in this case, as the contract here involved does contain an express negative covenant. It is sufficient for our present purpose that a distinction exists between suits brought to compel specific performance of an affirmative covenant for personal services, and suits brought to restrain by injunction the violation of a negative covenant respecting such serv

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(271 F.)

ices. McCall Co. v. Wright, 198 N. Y. 143, 91 N. E. 516, 31 L. R. A. (N. S.) 249.

The contract gave the plaintiff an option to renew its contract for the theatrical year from September 1, 1920, to September 1, 1921, provided it gave defendants notice in writing or orally of its desire to exercise such option prior to July 1, 1920. If the option was not exercised according to its terms, the contract has expired, the defendants have not violated it, and no injunction can issue.

The testimony shows that Mr. Shubert, the vice president of the plaintiff corporation, and who had full charge of such matters, dictated to his stenographer on June 7, 1920, a letter exercising the option; that she typed it and then handed it to Shubert, who signed it and gave it back to her; that she then handed it, properly addressed, to the head of the mailing department in the Shubert office, telling her that it was important and to mail it herself; and that the latter person stamped it and herself mailed it on the same day in a regular United States government post office box. The letter was mailed in a Shubert envelope having a return address stamped on it, and it was never returned for nondelivery. The letter was addressed to defendants, in care of the Detroit Opera House, Detroit, Mich., where the defendants were engaged for the week beginning on that day.

[2] The court below has found as a fact that the letter was written and mailed. We concur with him in that finding. The court also said that in writing and mailing the letter the plaintiff did all that was required of it under the contract. In that proposition we also fully concur; the letter having been written prior to the expiration of the option. Prior to that time the defendants are deemed in law to have been making to the plaintiff a continuing offer, and the mailing of the letter was an acceptance of it. An option, when based on a sufficient consideration, is a contract by which one binds himself to sell property or perform services, and leaves it discretionary with the other to take the property or accept the services on the terms specified. In such a contract two elements exist: First, the offer to sell or to render service which does not become a contract until accepted; second, the completed con-, tract to continue the offer or leave it open for the time named. v. Maddox, 104 Ga. 157, 162, 30 S. E. 723.

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An option is said in Milwaukee Mechanics' Ins. Co. v. B. S. Rhea & Son, 123 Fed. 9, 11, 60 C. C. A. 103, to be nothing more than a continuing offer to sell. In Standiford v. Thompson, 135 Fed. 991, 996, 68 C. C. A. 425, 430, it is defined as "an unaccepted offer to sell," and it is said to be "a continuing offer until the expiration of the time limited." In McMillan v. Philadelphia Co., 159 Pa. 142, 28 Atl. 220, it is said that an option is an unaccepted offer, which becomes a binding contract when the holder of the option signifies that he accepts the offer within the time fixed. And an option is defined in Adams v. Peabody Coal Co., 230 Ill. 469, 82 N. E. 645, as a continuing offer, which the offerer may not withdraw until the expiration of the time limited. In Rease v. Kittle, 56 W. Va. 269, 49 S. E. 150, it is said that "an option contract to purchase is but a continuing offer to sell." In 35

271 F.-53

Cyc. 56, it is said that an option is a continuing offer or contract by which the owner stipulates with another that the latter shall have the right to buy the property at a fixed price within a certain time. And see Ganss v. J. M. Guffey Petroleum Co., 125 App. Div. 760, 110 N. Y. Supp. 176, 177; Sizer v. Clark, 116 Wis. 534, 93 N. W. 539; Snider v. Yarbrough, 43 Mont. 203, 115 Pac. 411; 'Bates v. Woods, 225 Ill. 126, 80 N. E. 84; John v. Elkins, 63 W. Va. 158, 59 S. E. 961.

[3] The law is settled that, if a letter accepting an offer is made in the manner either expressly or impliedly indicated by the party making the offer, it makes no difference whatever that the letter is never received because of some mistake of the post office authorities, or through accident in transmission, or because in some way it becomes lost. Patrick v. Bowman, 149 U. S. 411, 13 Sup. Ct. 811, 866, 37 L. Ed. 790; Tayloe v. Merchants' Fire Ins. Co., 9 How. 390, 13 L. Ed. 187; Burton v. United States, 202 U. S. 344, 384-386, 26 Sup. Ct. 688, 50 L. Ed. 1057, 6 Ann. Cas. 362; MacTier v. Frith, 6 Wend. (N. Y.) 103, 21 Am. Dec. 262; Vassar v. Camp, 11 N. Y. 441; Trevor v. Wood, 36 N. Y. 307, 93 Am. Dec. 511; White v. Corlies, 46 N. Y. 467; Howard v. Daly, 61 N. Y. 362, 19 Am. Rep. 285; Mercer Electric Mfg. Co. v. Conn. Electric Manufact. Co., 87 Conn. 691, 89 Atl. 909; Perry v. Mt. Hope Iron Co., 15 R. I. 380, 5 Atl. 632, 2 Am. St. Rep. 902. The law of England is to the same effect, Brogden v. Metropolitan R. Co., 2 App. Cas. 666; In re Marseilles Imperial Land Co., L. R. 15 Eq. 18.

It is necessary, therefore, to inquire whether under the circumstances the plaintiff had a right to use the mails for the purpose of communicating its exercise of its option. The plaintiff was expressly authorized by the defendants to exercise the option in writing orally. We think that this gave it the right to communicate by mail its written acceptance of the offer. Authorization to communicate acceptance by mail is implied in two cases:

(1) Where the post is used to make the offer and says nothing as to how the answer is to be sent.

(2) Where the circumstances are such that it must have been within the contemplation of the parties that according to the ordinary usages of mankind the post might be used as a means of communicating the acceptance. Menthorn v. Fraser, [1892] 2 Ch. 27; Carey v. Rocts, 5 Dom. L. R. 670; Ellis v. Block, 187 Mass. 408, 73 N. E. 475; Campbell v. Beard, 57 W. Va. 501, 509, 50 S. E. 747. See 13 C. J. p. 300, § 116. [4] Where authority is given to accept in writing an offer which was made orally, the offeree has a right to understand, in our opinion, that he is at liberty to send his answer by post; and if he incloses the writing in an envelope properly stamped and addressed, and deposits it either in the post office or in a street letter box which is a part of the post office system for the transmission of mail, he has done all that is required. Wood v. Callaghan, 61 Mich. 402, 28 N. W. 162, 1 Am. St. Rep. 597.

[5] It appears, however, that the written notice which was deposited in the mails was not in all respects accurate. The notice was in the following form:

(271 F.)

"June 7, 1920.

"Dear Sirs: In accordance with the terms of our contract dated July 8, 1919, we hereby notify you that we exercise our option for your services to continue with us, commencing October 1, 1920, and expiring on October 1, 1921, at salary as contained in said contract.

"Very truly yours,

Shubert Theatrical Company,
"By J. J. Shubert.

"Rath Bros., Passing Show, Detroit Opera House, Detroit, Michigan. "JJS/HC"

Under the contract the period of renewal, as before pointed out, was from September 1, 1920, to September 1, 1921. The notice as given substituted "October" for "September." But the notice distinctly described itself as a renewal "in accordance with the terms of our contract" "at salary as contained in said contract." The mention of "October" for "September" was a palpable slip, which could have misled no one, and which did not vitiate the notice. Where a contract is specifically mentioned in a notice given under it, the terms of the contract are controlling. A notice given under a contract is to be construed according to the intention of the contract. 29 Cyc. 1124.

[6] Counsel for defendant insisted in this court that the contract is illegal and cannot be enforced, because it requires the defendants to give acrobatic performances in the city of New York on Sundays, the giving of which is prohibited by the Penal Law of the state of New York (Consol. Laws, c. 40). Section 2143 of that law is as follows:

"All labor on Sunday is prohibited, excepting the works of necessity and charity. In work of necessity or charity is included whatever is needful during the day for the good order, health or comfort of the community."

Section 2152 of the law expressly mentions acrobatic performances among the performances the rendition of which on Sunday is declared unlawful and punishable as a misdemeanor. The provision is found in part in the margin.1

The statute of 29 Charles II, c. 7, 1676, seems to have laid the foundation for the Sunday observance laws of England and of those in this country. It provided in its first section that

"No tradesman, artificer, workman, labourer, or other person whatsoever shall do or exercise any worldly labour, business or work of their ordinary callings, upon the Lord's Day, or any part thereof (works of necessity and charity only excepted).".

In 27 Am. & Eng. Encyc. of Law, 389, it is said that

"At common law judicial proceedings only were prohibited on Sunday. A person was not prohibited from doing his ordinary labor on Sunday, and the making of contracts was lawful."

1 "The performance of any tragedy, comedy, opera, ballet, farce, negro mistrelsy, negro or other dancing, wrestling, boxing with or without gloves. sparring contest, trial of strength, or any part or parts therein, or any circus, equestrian or dramatic performance or exercise, or any performance or exercise of jugglers, acrobats, club performances or rope dancers on the first day of the week is forbidden; and every person aiding in such exhibition, perform ance or exercise by advertisement, posting or otherwise, and every owner of lessee of any garden, building or other room, place or structure, who leases or lets the same for the purpose of any such exhibition, performance or exercise, or who assents to the use of the same, for any such purpose, if it be so used, is guilty of a misdemeanor.

"

In 37 Cyc. 545, it is also said that

"At common law all business other than judicial proceedings could be lawfully transacted on Sunday."

In Frolich on the Law of Motion Pictures and the Theater, p. 391, it is said:

"Sunday was not a dies non under the common law, and all regulations respecting the observance of Sunday and the prohibition of particular lines of activity are purely of statutory creation."

The law as above stated is supported by a number of court decisions. See Heisen v. Smith, 138 Cal. 216, 71 Pac. 180, 94 Am. St. Rep. 39; Ward v. Ward, 75 Minn. 269, 77 N. W. 965; Merritt v. Earle, 29 N. Y. 116, 86 Am. Dec. 292; Boynton v. Page, 13 Wend. (N. Y.) 429; Eden v. People, 161 Ill. 296, 43 N. E. 1108, 32 L. R. A. 659, 52 Am. St. Rep. 365; Marengo v. Rowland, 263 Ill. 531, 105 N. E. 285, Ann. Cas. 1915C, 198. In Richardson v. Goddard, 23 How. 28, 42, 16 L. Ed. 412, Mr. Justice Grier, of the Supreme Court of the United States, calls attention to the fact that in England formerly the courts sat even on Sunday, and that contracts made on that day were not regarded as void till the statute of 29 Charles II, c. 7 (not 27, as he erroneously states), was enacted.

We assume that, in the absence of a statute, participation in innocent amusements on Sunday is lawful. We also assume that contracts to perform on Sunday something prohibited by statute are void. It has been held that, where a contract provides for the performance on Sunday of acts prohibited by the statute, the entire contract is void, and no recovery can be had for the part performed on a secular day. Stewart v. Thayer, 170 Mass. 560, 49 N. E. 1020; Handy v. St. Paul Globe Publishing Co., 41 Minn. 188, 42 N. W. 872, 4 L. R. A. 466, 16 Am. St. Rep. 695; Williams v. Hastings, 59 N. H. 373.

The contract here involved, as expressly stated in its opening paragraph, is an engagement of the exclusive services of the defendants at any place or places that the plaintiff designates in the United States of America and Canada. So far as Sunday performances are referred to, the contract provides as follows:

"In states where Sunday performances are expressly permitted by law, you agree to appear and perform."

And it also provided that:

"We have the right to the use of your services in any theaters wherein we shall give Sunday concerts, and you shall appear and play in such concerts whenever we shall give you two (2) days' notice prior thereto of our desire to have you appear and naming the place where. Should you be out of the city of New York if such notice reaches you, you shall pay your expenses to the city where said concert is given and the return to your city of engagement."

An examination of these clauses shows, not only that the parties did not agree to violate any Sunday observance statute, but that the intention was that there should be no performances by the defendants on such days except in states where Sunday performances "are expressly permitted by law." The two clauses of the contract relating

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