{ "id": 8571145, "name": "OLIVER W. ARNOLD v. RAY CHARLES ENTERPRISES, INC. and RAY CHARLES (As Leader of \"The Sixteen Plus the Raelets, Musicians\")", "name_abbreviation": "Arnold v. Ray Charles Enterprises, Inc.", "decision_date": "1965-03-24", "docket_number": "Case No. 607", "first_page": "92", "last_page": "101", "citations": [ { "type": "official", "cite": "264 N.C. 92" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "123 S.E. 2d 590", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "256 N.C. 110", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571475 ], "opinion_index": 0, "case_paths": [ "/nc/256/0110-01" ] }, { "cite": "58 S.E. 2d 873", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "190 Va. 829", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 2154812 ], "opinion_index": 0, "case_paths": [ "/va/190/0829-01" ] }, { "cite": "163 N.Y.S. 2d 538", "category": "reporters:state", "reporter": "N.Y.S.2d", "opinion_index": 0 }, { "cite": "4 App. Div. 2d 209", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 2961451 ], "opinion_index": 0, "case_paths": [ "/ad2d/4/0209-01" ] }, { "cite": "131 S.E. 2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "21" } ], "opinion_index": 0 }, { "cite": "259 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560878 ], "pin_cites": [ { "page": "415" } ], "opinion_index": 0, "case_paths": [ "/nc/259/0400-01" ] }, { "cite": "50 S.E. 2d 511", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "229 N.C. 418", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12166341 ], "opinion_index": 0, "case_paths": [ "/nc/229/0418-01" ] }, { "cite": "63 S.E. 2d 187", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "233 N.C. 175", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600988 ], "opinion_index": 0, "case_paths": [ "/nc/233/0175-01" ] }, { "cite": "73 S.E. 2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "236 N.C. 734", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627662 ], "opinion_index": 0, "case_paths": [ "/nc/236/0734-01" ] }, { "cite": "184 S.E. 822", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "209 N.C. 834", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2221408 ], "opinion_index": 0, "case_paths": [ "/nc/209/0834-01" ] }, { "cite": "153 S.E. 158", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "198 N.C. 675", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617909 ], "opinion_index": 0, "case_paths": [ "/nc/198/0675-01" ] }, { "cite": "178 S.E. 572", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "207 N.C. 798", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628676 ], "opinion_index": 0, "case_paths": [ "/nc/207/0798-01" ] }, { "cite": "36 S.E. 2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "225 N.C. 754", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618221 ], "opinion_index": 0, "case_paths": [ "/nc/225/0754-01" ] }, { "cite": "30 A.L.R. 2d 1172", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 0 }, { "cite": "59 S.E. 2d 185", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "232 N.C. 24", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8594816 ], "opinion_index": 0, "case_paths": [ "/nc/232/0024-01" ] }, { "cite": "116 S.E. 2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "253 N.C. 112", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622713 ], "opinion_index": 0, "case_paths": [ "/nc/253/0112-01" ] }, { "cite": "51 A.L.R. 990", "category": "reporters:specialty", "reporter": "A.L.R.", "pin_cites": [ { "page": "996" } ], "opinion_index": 0 }, { "cite": "110 S.E. 2d 323", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1941, "opinion_index": 0 }, { "cite": "250 N.C. 731", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626132 ], "year": 1941, "opinion_index": 0, "case_paths": [ "/nc/250/0731-01" ] }, { "cite": "158 S.E. 101", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "200 N.C. 574", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624540 ], "opinion_index": 0, "case_paths": [ "/nc/200/0574-01" ] } ], "analysis": { "cardinality": 959, "char_count": 22853, "ocr_confidence": 0.587, "pagerank": { "raw": 3.3757708313391315e-07, "percentile": 0.8761008846461705 }, "sha256": "b826b5673cf2ecf2b34c108a3b63d7504d6cf69e01e905816a7ac2a01796092b", "simhash": "1:91cee98f741ed7f9", "word_count": 3848 }, "last_updated": "2023-07-14T15:18:06.877661+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "PaeKBR, J., joins in this dissenting opinion." ], "parties": [ "OLIVER W. ARNOLD v. RAY CHARLES ENTERPRISES, INC. and RAY CHARLES (As Leader of \u201cThe Sixteen Plus the Raelets, Musicians\u201d)." ], "opinions": [ { "text": "Shahp, J.\nThe contract involved in this case was made in New York, it was to be performed in Virginia, and the action for its breach is brought in North Carolina. Unquestionably the law of the forum, North Carolina, governs all matters of procedure. Howard v. Howard, 200 N.C. 574, 158 S.E. 101. No question of interpretation arises; the language is clear and unambiguous, leaving no room for construction. The only question of substantive law raised by the assignments of error involves the proper measure of damages. Johnson v. Lamar, 250 N.C. 731, 110 S.E. 2d 323; 25 C.J.S., Damages \u00a7 4 (1941). Throughout, neither party has made any reference to the law of New York or that of Virginia, yet we are required to take judicial notice of foreign law. G.S. 8-4. It appears that the law of New York, lex loci celebrationis, and that of Virginia, lex loci solutionis, are no different with reference to the substantive question here involved. There would be no profit, then, for us to exercise ourselves here to determine which law is to be applied, for to do so would take us into a \u201chighly complex and confused part of conflict of laws.\u201d 16 Am. Jur. 2d, Conflict of Laws \u00a7 38 (1964). See Id. at \u00a7\u00a7 38-42; 17 C.J.S., Contracts \u00a7 12(1),-(5) (1963); 15 C.J.S., Conflict of Laws \u00a7\u00a7 11, 20-22 (1939).\n\u201cThe general rule is that, where a person by his contract charges himself with an obligation possible and lawful to be performed, he must perform it . . . (I)f a party desires to be excused from performance in the event of contingencies arising, it is his duty to provide therefor in his contract, at least where he could reasonably have anticipated the event.\u201d 17A C.J.S., Contracts \u00a7 459 (1963).\n\u201cIn order that a party shall be excused from performing his contract obligation by an absolving clause contained in the contract, the excuse must not only come within the terms of such clause, but also must be reasonably beyond the power of the party to prevent; that is, such a clause will not give a party the power arbitrarily to refuse performance, but he is under a duty to exercise a reasonable amount of care to prevent the happening of the contingency named.\u201d 17 Am. Jur. 2d, Contracts \u00a7 409 (1964).\nDefendants take no exception to the first eleven findings of fact contained in the judgment. They do except to the findings of fact with reference to the amount of damages contained in Conclusion of Law No. 4, but which should have been included in the Findings of Fact as paragraph No. 12. G.S. 1-184.\nThe question raised by defendants\u2019 first three assignments of error is whether the findings of fact made by the trial judge support his conclusions of law that defendants were not relieved of their obligation to perform the contract in suit by \u201cproven detention by . . . accident or accidents to means of transportation ... or any other legitimate conditions beyond the control of the employees (defendants).\u201d\nAlthough the judge made no finding based upon it, plaintiff\u2019s testimony was that he knew defendants would travel to Roanoke by plane and he made no objection to this means of transportation. Had the parties so agreed, the contract could, of course, have specified another mode of travel as well as have required defendants to arrive in Roanoke on, say, the preceding day.\nThe findings of fact eliminated one of the questions debated in the brief, i.e., whether, considering the ever-present weather hazards to avigation, defendants allowed themselves too little time to travel from Baltimore to Roanoke. When they left Charlottesville for Roanoke at 6:40 p.m. on the day of the scheduled concert, the Roanoke Airport was open for \u201cin flights.\u201d It was not, therefore, the weather which prevented defendants\u2019 arrival in time for the concert; it was an accident to \u201cmeans of transportation,\u201d viz., a severe oil leakage in one of the plane\u2019s engines. If this leakage was beyond the control of defendants, they are exculpated from liability under the express provisions of the absolving clause of the contract; if not, they are liable. See Annot., Express provisions in contract of sale, or for supply of a commodity, for relief from the obligation in certain event, 51 A.L.R. 990, 996.\nOrdinarily the law of the forum controls as to the burden of proof, Howard v. Howard, supra; 3 Beale, Conflict of Laws \u00a7 595.3 (1935 Ed.); 15 C.J.S., Conflicts of Laws \u00a7 22(i) (1939); and the burden is on defendants to exculpate themselves from liability for their nonperformance. Potter v. Water Co.., 253 N.C. 112, 116 S.E. 2d 374; Crouse v. Vernon, 232 N.C. 24, 59 S.E. 2d 185; Annot., 51 A.L.R., supra at 906.\nDefendants, as operators of the airplane upon which they depended for their arrival in Roanoke in time to perform their contract, were under the duty to exercise reasonable care in the inspection of its engines in order to discover any defects which might prevent its proper operation, and they are chargeable with knowledge of any defects which such inspection would disclose. Annot. Duty and liability as to pre-flight inspection and maintenance of aircraft, 30 A.L.R. 2d 1172. The testimony of defendants\u2019 booking agent, a witness for defendants', discloses that, after defendants were unable to land in Roanoke, on the flight from there to Charlottesville, the nearest open airport, they \u201chad some oil line trouble with the plane.\u201d The agent received this information from the individual defendant\u2019s personal manager between 5:00 and 6:00 p.m. on the day in question. Was this trouble investigated, remedied, or attempted to be remedied during the hour and twenty-five minutes defendants were on the ground at Charlottesville? Defendants offered no evidence on this crucial point, and the burden was on them to do so.\nWe may concede that the facts found by the judge do not support his conclusions of law. (1) His findings are that, had defendants taken the bus provided for them at Charlottesville, they would have arrived one hour late for the scheduled concert. Their only chance to arrive on time was to undertake to land their plane in Roanoke. Had not engine trouble developed, their judgment would have been vindicated, for the weather had cleared and the airport was opened. Insofar as the findings disclose, at the time the decision to fly was made the only risk which was considered was the weather \u2014 not engine trouble. The judge\u2019s conclusion, however, was that because .weather had once that day prevented their landing at Roanoke, defendants should have chosen an alternate method of travel even though it would have made them one hour late for their.engagement. We think this is a non sequi-tur. (2) He made no finding as to whether the engine trouble was beyond defendants\u2019 control. The judgment contains no finding with reference to inspection and repairs to the engine, the pivotal point here, in our view of the case. It does not follow, however, that this judgment must be reversed or remanded.\nOrdinarily, when the parties waive a jury trial and the judge omits to find a material fact, we must remand the cause for a finding sufficient to support a judgment. McMillan v. Robeson, 225 N.C. 754, 36 S.E. 2d 235; Shore v. Bank, 207 N.C. 798, 178 S.E. 572; Trust Company v. Transit Lines, 198 N.C. 675, 153 S.E. 158. To remand this case for further findings, however, when defendants, the parties upon whom rests the burden of proof here, have failed to offer any evidence bearing upon th\u00e9 point, would be futile. By stipulation the evidence before the Superior Court consisted entirely of the exhibits and the transcript of proceedings in a former trial of this same case in the Corporation Court of the City of Lynchburg, Virginia, in June 1963. (At the conclusion of the evidence there plaintiff elected to take a voluntary non-suit.) \u201cThe Court may always direct a verdict against the party who has the burden of proof, if there is no evidence in his favor, as where he fails to introduce any evidence, or if the evidence offered and taken to be true fails to make out a case.\u201d (Italics ours.) Trust Co. v. Levy, 209 N.C. 834, 184 S.E. 822; accord, Strigas v. Insurance Co., 236 N.C. 734, 73 S.E. 2d 788; Sanders v. Hamilton, 233 N.C. 175, 63 S.E. 2d 187; McCullen v. Durham, 229 N.C. 418, 50 S.E. 2d 511. Defendants here, having chosen to rest their defense upon the transcript of a former trial in which they failed to offer evidence essential to the defense, have no cause to complain of an adverse judgment when the transcript affirmatively discloses their failure to carry the burden of proof which the law puts upon them.\nAlthough we do not adopt his reasons, the conclusion of the trial Court that defendants are liable for their failure to perform the contract is sustained.\nWe come now to the question of damages.\n\u201cFor a breach of contract the injured party is entitled as compensation therefor to be placed, insofar as this can be done by money, in the same position he would have occupied if the contract had been performed. The amount that would have been received if the contract had been kept and which will completely indemnify the injured party is the true measure of damages for the breach.\u201d Service Co. v. Sales Co., 259 N.C. 400, 415, 131 S.E. 2d 9, 21.\nAccord, New York Water Corp. v. City of New York, 4 App. Div. 2d 209 (1st Dept.), 163 N.Y.S. 2d 538; Orebaugh v. Antonious, 190 Va. 829, 58 S.E. 2d 873.\nThe amount of the gross receipts from ticket sales for the scheduled concert is not a subject for speculation. The tickets had been sold and the money was in hand when defendants failed to perform. The trial judge found the gross receipts, less admission taxes, to have been $12,600.90. The evidence sustains the finding. It is, therefore, conclusive on appeal. Construction Co. v. Crain and Denbo, Inc., 256 N.C. 110, 123 S.E. 2d 590. Having gross receipts in excess of $7,000.00, by the terms of the contract plaintiff was entitled to 50% of the proceeds and defendant to 50%. The amount of damages which the judge awarded plaintiff, $6,300.45, was 50% of the gross receipts.\nDefendant contends that plaintiff\u2019s one-half should be reduced by $1,000.00, the amount which plaintiff agreed to pay the Y.M.C.A. for promoting the concert, but did not pay, and by deducting plaintiff\u2019s expected expenses, also. This contention is without merit.\nUnder the terms of this contract, the amounts which plaintiff expended or agreed to expend, in promoting, advertising, and preparing for the concert are of no concern to defendants. All such expenses came out of plaintiff\u2019s one-half of the gross receipts. Had defendants performed the contract, plaintiff would have received $6,300.45, one-half of the admission receipts, regardless of the expenses he might have incurred. That sum,' and not his net profit, is therefore, the measure of plaintiff\u2019s damages in this case. New York Water Corp. v. City of New York, supra; Orebaugh v. Antonious, supra. Plaintiff\u2019s net profit, of course, will ultimately depend upon the amount of his expenditures in promoting the concert; the less expended, the more his profit. Judge Shaw correctly measured and assessed plaintiff\u2019s damages.\nThe judgment of the court below is Affirmed.", "type": "majority", "author": "Shahp, J." }, { "text": "HiggiNS, J.,\ndissenting:\nI am unable to agree with the trial court\u2019s conclusion of law \u201cthat the defendants were not prevented from performing the scheduled agreement within the meaning and intent of the (escape) clause in the contract as set out in paragraph 3 of the foregoing Findings of Fact.\u201d The contract provided: \u201cThe agreement of the employees to perform is subject to proven detention by sickness, accidents, or accidents to means of transportation, riots, strikes, epidemics, acts of God, or any other legitimate conditions beyond the control of the employees (defendants) .\u201d\nThe trial court found these facts: The performance was to begin at 8:00 p.m. The plaintiff not only knew the troupe would travel by air from Baltimore to Roanoke, arriving at about 4:30 p.m., but actually had busses at the airport to meet them. When the plane arrived at Roanoke, federal authorities refused permission to land due to local weather conditions. The defendant\u2019s pilot, in this emergency, ascertained the nearest open airport was Charlottesville, approximately 100 highway miles from Roanoke. A bus trip to Roanoke would delay the performance at least an hour. In the meantime, -the pilot ascertained weather conditions had improved at Roanoke sufficient to permit a landing there in time for the performance to begin on schedule. The defendants, in this emergency, (not of their making) chose to take to the air again in order to meet their obligation. The decision to fly would appear to be the wiser choice. After take-off an oil leak developed in one of the engines. Report of this trouble resulted in a federal order for the plane to return to Charlottesville.\nThese accidents were to the means of -transportation. These findings made by the trial judge not only do not support the conclusion of law No. 1, but compel a contrary conclusion. The decision must rest squarely on the facts found. Additional facts may not be assumed. When the facts are not in dispute, decision becomes a matter of law, and a judgment not supported by the facts will be reversed. Strong\u2019s North Carolina Index, Vol. 1, Appeal and Error, \u00a7 21, pp. 93-94, n. 225. I vote to reverse.\nPaeKBR, J., joins in this dissenting opinion.", "type": "dissent", "author": "HiggiNS, J.," } ], "attorneys": [ "Major S. High; Samuel S. Mitchell; Lee and Lee for plaintiff.", "Smith, Moore, Smith, Schell & Hunter by Richmond G. Bernhardt, Jr. and James R. Turner for defendants." ], "corrections": "", "head_matter": "OLIVER W. ARNOLD v. RAY CHARLES ENTERPRISES, INC. and RAY CHARLES (As Leader of \u201cThe Sixteen Plus the Raelets, Musicians\u201d).\n(Filed 24 March, 1965.)\n1. Courts \u00a7 20\u2014\nThe law of this State governs all matters of procedure in an action brought here on a contract executed in another state and calling for performance in a third state.\n2. Contracts \u00a7 12\u2014\nWhere the terms of a contract are not ambiguous no question of legal interpretation arises.\n3. Courts \u00a7 20\u2014\nWhere there is no difference between the law of the state in which the contract was executed and the law of the state in which it was to be performed, there is no necessity of determining which law should be applied.\n4. Same\u2014\nOrdinarily, the law of the forum controls as to the burden of proof.\n5. Contracts \u00a7 25\u2014\nThe burden is on the person failing to discharge a contractual obligation to prove that such failure came within provisions of the contract excusing nonperformance on the happening of certain contingencies.\n6. Appeal and Error \u00a7 49\u2014\nOrdinarily, when the court fails to find a fact essential to support the judgment the cause must be remanded, but where the record discloses that appellants had the burden of proof and failed to carry such burden by introduction of evidence sufficient to support a finding in his favor on the crucial fact, remand would be futile, and the Supreme Court may allow the conclusions of law to stand as a directed verdict.\n7. Trial \u00a7 31\u2014\nThe court may always direct a verdict against the party who has the burden of proof if he fails to introduce evidence, or if the evidence offered and taken to be true fails to make out a case in his favor.\n8. Contracts \u00a7 20\u2014\nWhere a contract excuses performance upon the happening of certain contingencies, it is the duty of the parties to exercise reasonable care to obviate the happening of such contingencies.\n9. Same\u2014 Defendants\u2019 evidence held insufficient to show the exercise of care to avoid contingency rendering performance on their part impossible.\nThe contract in suit obligated defendants to give a concert at a specified time. The findings disclosed that plaintiff knew defendants were traveling in their own plane, were to arrive at a nearby airport and had a bus waiting thereat, that defendants\u2019 plane arrived at the airport in ample time but was prevented from landing by fog, that the plane was then piloted to a nearby airport with radio notice to plaintiff, who had a bus sent to the second airport, which bus would have brought the troupe to the locus about an hour after schedule and that, the weather having improved, defendants attempted again to fly to the port of original destination but were turned back because of oil line trouble. Sold: In the absence of evidence on the part of defendants that they had exercised reasonable care in the inspection of the engine in order to discover any defects which might prevent its proper operation or had had the prior trouble with the oil line remedied, defendants have failed to carry the burden of showing that their failure to perform was due to \u201caccident or accident to means of transportation\u201d within the exculpatory clause of the contract, and a directed verdict for plaintiff is warranted.\n10. Contracts \u00a7 29\u2014\nWhere the contract provides that each party should be entitled to 50% of the proceeds of the ticket sales for the contemplated concert, the measure of damages for breach of the contract is 50% of the value of the tickets sold, without deductions for any unexpended promoting or advertising costs, the gross receipts and not the net profit being the determinative figure under the contract.\nHigsins, J., dissenting.\nParker, J., joins in dissent.\nAppeal by defendants from Shaw, J., March 30, 1964 Regular Civil Session of Guileobd. This appeal was docketed in the Supreme Court as Case No. 607 and argued at the Rail Term 1964.\nCivil action to recover damages for breach of contract. The parties waived a jury trial under the provisions of G.S. 1-184. Judge Shaw heard the case and made the following findings of fact and conclusions of law: ' \u2022 \u2022\n\u201cFindiNgs op Fact\n1. Plaintiff and defendants entered into a written contract by the terms of which defendants agreed to perform for the plaintiff on Sunday evening, September 16, 1962, at 8:00 o\u2019clock p.m. at the Cross Road Mall in the City of Roanoke, Virginia.\n2. The contract provided, inter alia, that the plaintiff pay to the defendants for said performance a guarantee of $3,500, plus 50% of gross admission receipts in excess of $7,000.00, less admission taxes.\n3. The contract also provided as follows: \u2018The agreement of the employees to perform is subject to proven detention by sickness, accidents or accidents to means of transportation, riots, strikes, epidemics, acts of God, or any other legitimate conditions beyond the control of the employees (defendants).\u2019\n4. The defendants\u2019 troupe left Baltimore, Maryland, by private Martin 404 plane owned by the defendants and arrived at Roanoke, Virginia, at 4:30 or 4:40 on the afternoon of the date of the performance. Plaintiff knew that defendants\u2019 troupe intended to travel by air and arranged to have buses waiting at the Roanoke Airport for them.\n5. The duly constituted authority of the Federal Aviation Agency denied the defendants\u2019 troupe permission to land at the airport in Roanoke because of the low ceiling then existing. Defendants\u2019 pilot determined that the nearest open airport was at Charlottesville, Virginia, to which airport he proceeded, radioing ahead for buses for transportation.\n6. The troupe arrived in Charlottesville, Virginia, on the plane at 5:15 p.m. on the same afternoon, and shortly thereafter found a bus waiting to carry the troupe to Roanoke by bus. Meantime, the pilot discussed with Mr. J. D. Brown, Vice President of the corporate defendant, the question of whether the troupe should take the highway bus to Roanoke or again undertake to land their plane at Roanoke airport.\n7. -Mr. Brown determined that the troupe should attempt to again land their plane at Roanoke and the plane took off for that city about 6:40 p.m. on the evening of the performance.\n8. Prior to defendants\u2019 departure from Charlottesville, the Roanoke airport had opened for in flights and Mr. Brown had determined that if the troupe traveled by bus from Charlottesville to Roanoke they would arrive approximately one hour late for the scheduled 8:00 o\u2019clock performance that evening.\n9. After take-off, a severe oil leakage occurred in one of the engines on the plane. The pilot declared an emergency and was turned over to a Washington controller of the Federal Aviation Agency. The controller routed the plane back to Charlottesville, Virginia.\n10. After landing at Charlottesville for the second time, defendants\u2019 manager telephoned the plaintiff about 7:30 p.m. on the day of the scheduled concert and transmitted a message to the plaintiff\u2019s mother, which was relayed to him a few minutes before the performance was scheduled to begin. If defendants\u2019 troupe had chartered another plane and attempted to reach Lynchburg via air and shuttle to Roanoke via auto the performance could not have taken place until 10:30 or 11:00 o\u2019clock p.m.\n11. Defendants refunded to the plaintiff the amount of $1,-750.00 deposited with defendants by plaintiff on the signing of the contract and incurred other expenses in their efforts to perform the contract.\nBased upon the foregoing Findings of Fact, the Court makes the following:\nCoNClusions of Law\n1. The Court concludes, as a matter of law, that the defendants were not prevented from performing the scheduled engagement within the meaning and intent of the clause in the contract as set out in paragraph three of the foregoing Findings of Fact.\n2. In order for a party to be excused from performing his contract obligations under absolving clauses in the contract, the excuse must come, not only within the terms of the clause, but also be reasonably beyond the power of the parties to perform. The defendants had on the same afternoon experienced an inability to land their plane, but an alternate course was left open to them to travel to Roanoke by bus from Charlottesville. Provision for their transportation by bus had been made. Instead of accepting such alternate method of travel, defendants, through their manager, Mr. Brown, elected to endeavor to reach Roanoke again by plane. Such a choice was not the exercise of reasonable care, to prevent 'accident to means of transportation.\u2019\n3. The defendants did breach the contract and the plaintiff is entitled to recover the amount stipulated in the contract which was, in effect, 50% of the gross admission receipts, less admission taxes.\n4. This Court has determined, from the evidence, that the amount of 50% of the gross receipts, less admission taxes is as follows:\n1518 General Admissions $ 5,313.00\n2463 Advance Sales 7,389.00\n1299 Reserved Seats 1,299.00\nGross Receipts $14,001.00\nLess admission tax 1,400.10\nBalance $12,600.90\nLess guarantee due defendants $3,500.00\nLess one-half of the amount over $7,000 of gross receipts due defendants 2,800.45\n$6,300.45 6,300.45\nAmount plaintiff is entitled to recover $ 6,300.45\u201d\nFrom the judgment that plaintiff recover of defendants the sum of $6,300.45, together with the cost of the action, defendants appeal.\nMajor S. High; Samuel S. Mitchell; Lee and Lee for plaintiff.\nSmith, Moore, Smith, Schell & Hunter by Richmond G. Bernhardt, Jr. and James R. Turner for defendants." }, "file_name": "0092-01", "first_page_order": 128, "last_page_order": 137 }