BRALEY, J. The petitioner asks for process by mandamus to compel the respondents the Boston transit commission to construct a tunnel or subway from "a point at or near City Square to a point at, near or beyond Sullivan Square in the Charlestown district of the city of Boston" under the provisions of Spec. St. 1915, c. 293. But while they are directed to construct the tunnel, § 1 states that the provisions as to construction, payment and use are to be the same as "provided by law for the construction, payment and use of the present tunnel under Washington Street in the city of Boston." The St. of 1902, c. 534, in so far as pertinent and material having been thus incorporated by reference, the governing statute is to be read accordingly. See St. 1907, c. 573; St. 1911, c. 741, § 8. It follows that unless the Boston Elevated Railway Company consented to execute with the commission a contract for the sole and exclusive use of the tunnel or subway for a specified term of years at an annual rental after its construction, and thereupon the voters of the municipality had accepted the Spec. St. of 1915, c. 293, the commission could not have proceeded with the work of construction. Boston v. Talbot, 206 Mass. 82. Sears v. Crocker, 184 Mass. 586. Codman v. Crocker, 203 Mssa. 146, 153, 154. The material allegations of the answer not having been traversed are to be taken as true, (R. L. c. 192, § 5,) from which it clearly appears that having been duly requested by the commission to define its position, the company declined to take action, or to enter into any contract as required by the statute. No failure by the respondents to comply with the act is shown. Order dismissing petition affirmed.

F. RAY COMSTOCK 08. BILTMORE AMUSEMENT COMPANY & another.

SAME vs. SAME.

SAME vs. SAME.

Suffolk. March 26, 27, 1917. — May 25, 1917.

Present: RUGG, C. J., BRALEY, DE COURCY, CROSBY, & PIERCE, JJ.

Contract, What constitutes, Performance and breach. Practice, Civil, Judge's charge.

In an action of contract by a theatrical manager, against another theatrical manager and the proprietor of a certain theatre, to recover $500 a week for the period of the production by the defendant manager of a certain play at the theatre of the defendant proprietor, in consideration of the plaintiff giving up his right to produce a certain play at that theatre on and after a certain date and thus permitting the play of the defendant manager to continue its successful run there, it was held that the evidence warranted a finding that in consideration of the plaintiff giving up his claim to the theatre the defendants bound themselves jointly to make the weekly payments during the run of the play. In the action above described the defendants contended that their promise to pay $500 a week was conditional upon the plaintiff's complete withdrawal of his play and his not producing it at any theatre in that city during the period of payment, and it appeared that the defendants had stopped making the weekly payments upon the production of the plaintiff's play at another theatre in the city. The evidence on the question, whether the plaintiff agreed that his play should be withdrawn during the period for which he was to be paid, was conflicting, and it was held, that, whether the withdrawal of the play from performance in the city was a condition precedent to the defendants' obligation to pay the plaintiff $500 a week, depended upon the view that the jury took of all the evidence from which the terms of the contract were to be ascertained. In the same case an exception of the defendant to a portion of the judge's charge to the jury in which he made use of the phrase "trade talk" was overruled on the ground that, while the expressions complained of might be somewhat misleading if standing alone, yet, when the charge was read as a whole and the expressions were viewed in their proper setting, it could not be said that the instructions were clearly erroneous.

THREE ACTIONS OF CONTRACT between the same parties, all for alleged breaches of the same contract, each action covering a different period of time, the plaintiff alleging in each action that he had a contract with the defendant Wilbur Theatre Company entitling him to the use of the Wilbur Theatre for the production of a play called "The Third Party" from February 22, 1915, for an

indefinite period, that the defendant Biltmore Amusement Company was producing at the Wilbur Theatre a play called "A Pair of Sixes" and desired to continue it beyond the date of February 22, 1915, and that thereupon the defendants, in consideration of the plaintiff giving up his rights to the Wilbur Theatre for an indefinite period beginning February 22, 1915, agreed to pay the plaintiff $500 a week so long as "A Pair of Sixes" should be produced at the Wilbur Theatre after February 22, 1915. Writs dated March 17, March 22 and April 23, 1915.

In the Superior Court the cases were tried together before Hall, J. The evidence is described in the opinion. At the close of the evidence the defendant Biltmore Amusement Company asked the judge to make, among others, the following rulings:

"1. On all the evidence the defendant is entitled to a verdict." "4. There is no evidence of an agreement on the part of the defendants jointly to pay any sum of money."

"6. The Biltmore Amusement Company cannot, in this action, be found liable to the plaintiff for $500 per week."

"8. On all the evidence the jury must find that the plaintiff agreed not to produce 'The Third Party' in Boston during the theatrical season going on in the first part of 1915."

The defendant Wilbur Theatre Company asked for the same rulings similarly numbered, except that in the ruling numbered 6 the name of the Wilbur Theatre Company was substituted for that of the Biltmore Amusement Company.

The judge refused to make any of these rulings, and left the cases to the jury with other instructions, which in part are quoted and described in the opinion. The bill of exceptions states that "Each defendant excepted to so much of the charge as permitted the jury to find the talk about not playing in Boston by 'The Third Party' trade talk." A part of the charge referring to this subject was as follows: "So, in this case, you have got to see whether or not the talk that was had and the talk that was ultimately had with respect to 'The Third Party' not playing in Boston was trade talk or was an essential consideration upon which this five hundred dollars was to move. That is the vital spot in this case, and that is a question of fact that is left to you to determine upon this evidence, and all of it, together with your experience as business men and the fair inferences and deductions

that you will draw from the kind of men who were trading, as to what kind of a proposition they were making, and that brings you to some consideration as to what the situation was in the Boston theatrical market, and here again there is no dispute as to what the conditions were here."

The jury returned verdicts against the defendants jointly, in the first case in the sum of $1,063.33, in the second case in the sum of $531.25 and in the third case in the sum of $2,114.66. Both defendants alleged exceptions.

J. T. Hughes, (D. Harris with him,) for the defendants.

F. N. Nay, for the plaintiff.

BRALEY, J. If not expressly conceded it is undisputed that under the contract between the plaintiff and the Wilbur Theatre Company, he obtained the right to present to the public at the Wilbur Theatre in Boston for an indefinite period beginning February 22, 1915, a play or drama known as "The Third Party," which he either owned or controlled, and of the gross receipts the Wilbur Company was to receive forty per cent, the remainder being retained by him. At the time this contract was made a prior contract dated June 16, 1914, had been entered into between the Wilbur Company and the Biltmore Amusement Company giving to that company the use of the theatre for eight weeks beginning December 28, 1914, during which a play owned by the Biltmore Company and called "A Pair of Sixes," was "to be put on the boards," the division of the gross receipts being on the same percentage as in the contract of the plaintiff. The Biltmore play being prior in time was duly presented, and the patronage of the public made the engagement so successful that as it drew to a close a prolongation of the period was deemed desirable by one Frazee, the manager of the Biltmore Company, and one Wilbur, the treasurer of the Wilbur Company. But, as this could not be accomplished unless some arrangement could be made with the plaintiff, negotiations to this end followed. It is at this point that the controversy begins. The defendants contend, that on the telegrams, letters and oral evidence the jury were not warranted in finding, as their verdict shows they found, that the joint contract declared on in each case had been proved. The question was one of fact for the jury under proper instructions. It could be found on the testimony of one Murry, to the admission of which

no exception was taken, that he was connected "with the Shuberts, the theatrical managers, as their booking manager," of whom "Lee Shubert was president of the Wilbur Theatre Company," and in which the Shuberts owned a half interest, and that "he had always done business in connection with the Biltmore Amusement Company with Mr. Frazee" its manager. Having first heard from Wilbur and Frazee “of a desire to continue the ‘A Pair of Sixes' at the Wilbur beyond February 20, 1915," he wrote to Wilbur that Shubert had asked him " to take up with Mr. Comstock the matter of cancelling 'The Third Party' at the Wilbur Theatre, Boston," and "I think we could get him to do this if you agreed to pay him $500 a week between yourself and Mr. Frazee, this amount to be taken out of the gross receipts. I think Mr. Frazee will be willing to pay his share of this $500. If Comstock was not a client of ours, we might be able to cancel this time, but we cannot arbitrarily do so under the circumstances. Please wire me upon receipt of this, what you think of the proposition."

The relations between the defendant companies thus having been shown, and the defendants having admitted that the contract between them was for the use of the theatre in connection with “A Pair of Sixes," the contract itself was properly admitted in evidence. In the absence of proof of any by-law limiting the authority of the president of the Wilbur Company, or of its treasurer, to bind the company in the management of its business, on the telegrams passing between Murry and Wilbur, all of which were introduced without objection by the defendants, the jury would be warranted in finding that the terms for the extension of "A Pair of Sixes" proposed by Murry were accepted by the Wilbur Company, and on the plaintiff's testimony, that he acquiesced in and acted upon this proposal. But, as what had been done did not specifically bind the Biltmore Company, Murry further testified, and on his testimony the jury well could find, that he then "took the matter up at Mr. Frazee's office and gave them a new contract that is, a new contract between the Biltmore Amusement Company and the Wilbur Theatre Company for the continued production of 'A Pair of Sixes' at the Wilbur Theatre after February 20, 1915," and that after several conversations with Frazee in which the matter was discussed the new contract was made. The plaintiff then offered this contract dated February 4, 1915, in