200
THE GREEN BAG
at the Hippodrome, he .had warned him some weeks ago that he was not acting up to the standard; but being assured by plaintiff that he would "make good," things were comfortable till the next morning, during which interim he and plaintiff transacted some business. Defendant claims to have relied upon plaintiff's representations as to his genius. Both parties attempted to introduce expert testimony bearing on the questions what was and what was not such histronic work as was sufficient under the contract. All par ties agreeing, the trunk was sent for, the jury meanwhile being excused to take a cold bath and bring along their bottles of Peruna. OPINION BY ATTOM, J. P. i. It now being in the midst of the dog-day term of the court, when everybody is taking Saturday afternoon off, and the churches all day Sunday, and there being little to excite the conscience of the law-abiding citizen to wakefulness, the court has deemed it oppor tune that the trunk which figures equitably in this litigation should be brought into court. It was thought that a trunk said to have its insides bristling with tufts ot all manner of uncanny hair, especially if it remain within the full vision of the jury, and more especially if it were not allowed to be opened in their presence at all, would have a tendency in these, the aforementioned dog-days, to keep the members thereof sitting on the jury instead of sleeping on it; for sometimes that which conscience on account of absence cannot keep awake, curiosity will. 2. Further the court is not inclined to hold that the mere possession of any amount of make-up, from a wooden leg to a false wart, is evidence of ability as a play actor. Evidence that a party knew enough to use such stage properties in time might appeal to equity under the maxim herein, but not that he in time might know enough. Neither question arises, however, and time is precious.
3. Therefore it is open to argument out side this court only that the trunk had better have been opened. Cases are per mitted to be opened in this court; but this trunk is not such a case. Hence, there will be no splitting of hairs on fine legal points as to the . competency of the contents thereof in this issue. This is not saying what might have been the ruling had it been a case containing a certain other thing this hot afternoon in the dog-days. •4. It seems that the plaintiff was engaged to play the part of the honest and smart young workingman, John Tressider, in the play, "Woman v. Woman," and the de fendant claims that he did not correctly interpret his part, particularly in the scene where John after his day's work returns to his wife and baby, where he finds the evening meal nicely served for him. It is in evidence that the gallery went into a rage and then sulked through the balance of the play because Storm did not grab his two months-baby, throw it up to the ceiling and dexterously catch it by the leg as it came down, in exhuberance of fatherly pride. But this warning by the gallery against taking the baby up tenderly as he had presumed to do has been stubbornly ignored by the plaintiff. 5. While the claim of defendant that Storm was too gentlemanly in his part of the young husband and father at home affects chiefly the question of his fulfilling his contract to act right, the court must not lose sight of the equities involved in the continuous possession before and at the time of suit of the key to the trunk. Defendant will not be heard to say that complainant is not acting like a gentleman in declining to surrender his interest in the trunk. Ungentlcmanly once, ungentlemanly always, and vice versa. 6. It is practically undisputed that the stage carpenter was not special bailee of the maker of the trunk when defendant, owner of the theatre, turned said trunk, which appears to be a good one, over to com
