Jackel v. Nixon & Zimmerman Amusement Co.

Citations

• 33 Pa. Super. 30
• 1907 Pa. Super. LEXIS 234

Syllabus

<p>Contract — Theater—Theatrical contract — Selling tickets.</p> <p>An unincorporated association entered into- a contract with the proprietors of a theater for a benefit. It was agreed that if the association sold a certain number of tickets it should be entitled to retain out of the proceeds a certain percentage, returning the balance to the theater company. After the association had sold a sufficient number of tickets to entitle them-to the percentage of the proceeds agreed upon, they were notified that the benefit had been canceled, as -the theatrical company billed refused to play for benefits. They were instructed to get in all the tickets and return them to the theater at the earliest possible date. They were further told that they would be refunded the price of printing, or that the benefit would be transferred to some other attraction. The association turned into the theater an account of tickets sold, offered to return those unsold, and tendered to the theater company the full contractual share of the proceeds of the sales made before the contract was declared canceled. This settlement was dedined. Subsequently the association voluntarily took up all the tickets previously sold, and returned the money in their hands to the respective purchasers. They then sued the proprietors of the theater for the percentage of the proceeds stipulated for in the contract. Held, (1) that the association in distributing the fund in their hands stripped themselves of every advantage gained by their previous partial performance of the contract, and deliberately destroyed the fund which was to be the source and means of payment; (2) that the association was not entitled to recover.</p>