1I’OAULL v. BRAHAI. 39
salary, or her engagement, at the option of Mr. McCau1l, and willalso
be held liable for any loss that may be sustained by Mr. McCaull i
owing to such absence. Illness, to be accepted as anexcuse, must be
attested by a medical certincate, which must be delivered to Mr. Mc-
Gaull or his representative as early as possible, and before the com-
mencement of the performance. Should such absence exceed two
weeks, the engagement maybe canceled at the option·of Mr. Mc-
(Jaull." " ` ` ‘ ` s
The defendant entered upon the performance of her engagement ,_
at the Bijou Opera House in this city in September, 1882, with great
success, which was continued until prevented from further perform-
ance by protracted illness. Having partially recovered, she attempted
‘ to renew her appearances, but afterthree nightslperformances, in De-
cember, she suffered a relapse from which she did·’not recover until V
about the middle of February, 1883. y I 4 V I »
By the written contract the plaintiff was to furnish all costumes.
This was modified, prior to September, by an oral agreement by which -
the plaintiff was to pay ay larger salary and the defendant to furnish
her own costumes. Bothparties agree as to the modification of
the contract to this extent. Thedefendant contends that in addition ‘
to the above the oral contract was further modined bythe plaintiff n
agreeing to pay her weekly salary as at first fixed during the contin-
uance of any illness; that the sum of about $350,“paid to her bythe n I
plaintiff during her illness, was paid in pursuance of this modifica- i
tion of the contract; and that since the middle of December the
plaintiff has refused to continue such payment during that part of
her illness, in violation of the agreement asmodiiied. `
The plaintiff denies that the modification of the contract included
any agreement to pay her during illness, and asserts that the moneys
actually paid her while ill were merely advances on account of future I
salary to be earned, and so expressly stated at _the time. Each party
sustains its respective claims in this respect by several witnesses. ‘ A
They leave this branch of the subject in so much doubt that I feel
obliged to reject it from consideration, without prejudice to either in
regard to their mutual claims in respect to it, since neither party
made it a ground of terminating the contract.
Up to the time this action was commenced the defendant had given
no notice to the plaintiff terminating the agreement; nor had the
plaintiff, as he might have done according to the express provision
of the agreement, notified the defendant that it was canceled, owing
to her absence beyond two weeks. I must, therefore, hold the agree-