same rights should continue. One of the parties sold his interest in the well to a third person. On a survey, it was found that the well was wholly on the property of the other owner. It was held that equity would presume the grant of a license to such purchaser to use the well, but that it was revocable on payment to him of one-half of the money expended.5 § 380. Tickets of Admission to Theaters and Other Places of Amusement.-Theaters, circuses, exhibitions, race tracks, private parks, and other places of amusement and entertainment, in the absence of statutory regulation or restriction as to the manner in which they shall be conducted, are entirely under the control of the proprietor or manager, and he may admit or exclude whomsoever he chooses, and govern the place, so far as the public is concerned, by such rules as he may see fit to make.57 Hence it is a general rule that a ticket of admission to such a place is neither a contract nor the evidence of a contract between the proprietor and the purchaser of the ticket. It is merely a license, granted to the purchaser on payment of the price, to enter the theater or other place and witness the performance, put in printed or written form merely to serve as a convenient evidence of his right to admission at the date named, and perhaps of the place reserved for him. As such, it is revocable by the proprietor of the place at his mere pleasure, and his only obligation on revoking it is to refund the price paid for the ticket, together with any other expense which the purchaser has incurred directly connected with the issuing of the ticket.58 Moreover, it is sub 56 Johnson v. Barton, 23 N. D. 629, 137 N. W. 1092, 44 L. R. A. (N. S.) 557. 57 Marrone v. Washington Jockey Club, 35 App. D. C. 82; Luxenberg v. Keith & Proctor Amusement Co., 64 Misc. Rep. 69, 117 N. Y. Supp. 979. 58 Greenberg v. Western Turf Ass'n, 140 Cal. 357, 73 Pac. 1050; Burton v. Scherpf, 1 Allen (Mass.) 133, 79 Am. Dec. 717; Meisner v. Detroit, B. I. & W. Ferry Co., 154 Mich, 545, 118 N. W. 14, 19 L. R. A. (N. S.) 872, 129 Am. St. Rep. 493; People v. Flynn, 189 N. Y. 180, 82 N. E. 169, 12 Ann. Cas. 420; Collister v. Hayman, 183 N. Y. 250, 76 N. E. 20, 1 L. R. A. (N. S.) 1188, 111 Am. St. Rep. 740, 5 Ann. Cas. 344; Mendenhall v. Klinck, 51 N. Y. 246; Purcell v. Daly, 19 Abb. New Cas. (N. Y.) 301; Horney v. Nixon, 213 Pa. 20, 61 Atl. 1088, 1 59 ject to the purchaser's observance of any reasonable conditions appearing on the face of the ticket, and is revocable for a violation of such conditions; and a clause in a theater ticket providing that, if sold by the purchaser at the sidewalk it will be refused at the door, is valid and enforceable against all subsequent purchasers, where its purpose is to prevent the purchase of tickets by ticket speculators to resell at an advance over the price charged by the management. It follows from these principles that the holder of a ticket who is denied admission to the theater, or who is removed therefrom after admission, is entitled to recover the amount paid for the ticket, and also, as stated above, any other expense which he may have been put to directly connected with the issuing of the ticket, but not compensatory damages for disappointment or humiliation suffered by reason of being denied admission or of being expelled. But it must be carefully noted that this rule applies only where the matter is not covered by a statute. If the law provides that admission shall not be denied to certain classes of persons, or that there shall be no discrimination against any persons for certain specified causes, the freedom and discretion of the proprietor are abridged just so much, and a person unlawfully excluded may have his action on the statute. Moreover, the general rules above stated are not universally accepted. In Alabama, it is held that a ticket of admission to a theater or other place of amusement constitutes a contract between the proprietor and the purchaser, and the proprietor is bound to perform the contractual duties growing out of the relation, or respond in damages for breach of the contract.01 And in 60 L. R. A. (N. S.) 1184, 110 Am. St. Rep. 520, 5 Ann. Cas. 349; Buenzle v. Newport Amusement Ass'n, 29 R. I. 23, 68 Atl. 721, 14 L. R. A. (N. S.) 1242; Wood v. Ledbitter, 13 Mees. & W. 838; Shubert v. Nixon Amusement Co., 83 N. J. Law, 101, 83 Atl. 369. 59 Collister v. Hayman, 183 N. Y. 250, 76 N. E. 20, 1 L. R. A. (N. S.) 1188, 111 Am. St. Rep. 740, 5 Ann. Cas. 344. 60 Luxenberg v. Keith & Proctor Amusement Co., 64 Misc. Rep. 69, 117 N. Y. Supp. 979; W. W. V. Co. v. Black, 113 Va. 728, 75 S. E. 82, Ann. Cas. 1913E, 558. 61 Interstate Amusement Co. v. Martin, 8 Ala. App. 481, 62 South. California, the statute makes a ticket of admission to a public place of amusement, when sold, an irrevocable license to the purchaser to occupy a place in such place of amusement during the performance, and hence the ticket represents a right of property and is in itself a species of property, and therefore is transferable, in the absence of stipulations to the contrary.62 63 § 381. Licenses Under Patent and Copyright Laws. Licenses granted under the laws relating to patents and copyrights generally have reference to the extent or manner of reproduction, to sale or use within a specified territory, or to the enjoyment of certain privileges for a definite time, and are usually founded upon the payment of a consideration or a royalty. Hence they come within the general rule mentioned above, that a license founded upon a consideration is not revocable merely at will, but only for such causes and upon such conditions as would warrant the rescission of any other contract. The same principle applies to the somewhat anomalous case of cinematograph records. In a recent case in the federal courts, a contract granting an exclusive right to produce a series of moving picture films was held to have been broken by the licensor, by granting the right to exhibit the films to another, while the licensee was negotiating with the municipal authorities to avoid the necessity of eliminating certain scenes which they had ordered cut out, and relief was granted by injunction." 64 62 Ex parte Quarg, 149 Cal. 79, 84 Pac. 766, 5 L. R. A. (N. S.) 183, 117 Am. St. Rep. 115, 9 Ann. Cas. 747. 63 Supra, § 370. 64 Jesse L. Laskey Feature Play Co. v. Celebrated Players' Film Co. (D. C.) 214 Fed. 861. CHAPTER XVIII RELEASES, COMPROMISES, AND SETTLEMENTS § 382. Right of Rescission in General. 383. Misreading or Misrepresenting Instrument. 384. Want of Care and Prudence on Part of Releasor. 389. Personal Injury Cases. 390. Same; Reliance on Opinion of Physician. 391. Same; Mistake as to Nature or Extent of Injuries. 392. Settlement and Compromise of Litigation. 393. Settlement and Division of Estates. 394. 395. Settlements Between Trustees and Beneficiaries. Remedy Against Fraud at Law and in Equity. 396. Restoration or Tender of Consideration Received. 397. Ratification and Estoppel. § 382. Right of Rescission in General.-A contract by which one party releases or compromises a demand, right of action, or claim for damages which he has against the other, and which was obtained by fraud, deceit, or trickery practised upon the releasor, may be annulled or set aside. at his instance, or it may be repudiated by him and its effect avoided, when set up in defense to his action on the original claim, by showing the circumstances under which it was given. And it is not necessary for this purpose that the 1 St. Louis, I. M. & S. Ry. Co. v. Phillips, 66 Fed. 35, 13 C. C. A. 315; Willoughby v. Hannon, 156 Ala. 585, 47 South. 241; St. Louis, I. M. & S. Ry. Co. v. Smith, 82 Ark. 105, 100 S. W. 884; Hardister v. St. Louis, I. M. & S. Ry. Co. (Ark.) 177 S. W. 918; Meyer v. Haas, 126 Cal. 560, 58 Pac. 1042; Pelberg v. Gorham, 23 Cal. 349; Dobinson v. McDonald, 92 Cal. 33, 27 Pac. 1098; Rockwell v. Capital Traction Co., 25 App. D. C. 98; Carroll v. People, 13 Ill. App. 206; Wray v. Chandler, 64 Ind. 146; Vandalia Coal Co. v. Alsopp (Ind. App.) 109 N. E. 421; Rauen v. Prudential Ins. Co., 129 Iowa, 725, 106 N. W. 198; Kilmartin v. Chicago, B. & Q. R. Co., 137 Iowa, 64, 114 N. W. 522; Clark v. Taylor, 68 Iowa, 519, 27 N. W. 493; Reddington v. Blue, 168 Iowa, 34, 149 N. W. 933; Shackelford v. Hendley's Ex'rs, 1 A. K. Marsh. (Ky.) 496, 10 Am. Dec. 753; Bradshaw v. Craycraft, 3 J. J. Marsh. (Ky.) 77; Larrabee v. Sewall, 66 Me. 376; Barnard v. Crosby, 6 Allen (Mass.) 327; Larsson v. Metro fraud complained of should be the sole cause of the giving of the release, but it is sufficient if it constitutes a determining factor in the transaction. Thus, in an action for damages for personal injuries, where the plaintiff's release is set up in defense, and it is shown that material false representations were made to him as to the nature and extent of his injuries, which he alleges as the reason which induced him to execute the release, the effect of the fraud is not eliminated by showing other circumstances which may have influenced his decision, as, that he was in need of money and anxious to get home to his family. And fraud in procuring a release may be shown by the acts and conduct of the party, as well as by his statements or representations. Thus, a settlement of mutual accounts may be rescinded for fraud where one of the parties willfully included fictitious items in his account, which the other party did not discover until after the making of the settlement.* So also, a release or compromise may be avoided, although no active trick or deceit was practised upon the releasor, and no attempt was made to mislead him by affirmative false statements, if his consent was procured by the fraudulent concealment of material facts such that, if he had politan Stock Exchange, 200 Mass. 367, 86 N. E. 940; Hart v. Gould, 62 Mich. 262, 28 N. W. 831; Averill v. Wood, 78 Mich. 342, 44 N. W. 381; Crawley v. Studebaker Corporation, 183 Mich. 462, 149 N. W. 1019; St. Louis & S. F. R. Co. v. Ault, 101 Miss. 341, 58 South. 102; Austin v. St. Louis Transit Co., 115 Mo. App. 146, 91 S. W. 450; Hoitt v. Holcomb, 23 N. H. 535; Gould v. Cayuga County Nat. Bank, 56 How. Prac. (N. Y.) 505; Kelly v. City of New York, 16 App. Div. 296, 44 N. Y. Supp. 628; Fleming v. Brooklyn Heights R. Co., 95 App. Div. 110, 88 N. Y. Supp. 732; Markowitz v. Metropolitan St. R. Co., 32 Misc. Rep. 751, 65 N. Y. Supp. 784; Hayes v. Atlanta & C. Air-Line R. Co., 143 N. C. 125, 55 S. E. 437, 10 Ann. Cas. 737; Silk v. Mutual Reserve Fund Life Ass'n, 159 Pa. 625, 28 Atl. 445; Galveston, H. & S. A. Ry. Co. v. Cade (Tex. Civ. App.) 93 S. W. 124; Bjorklund v. Seattle Electric Co., 35 Wash. 439, 77 Pac. 727, 1 Ann. Cas. 443; Sanford v. Royal Ins. Co., 11 Wash. 653, 40 Pac. 609; Wells v. McGeoch, 71 Wis. 196, 35 N. W. 769. For the general principles governing the rescission or setting aside of contracts on the ground of fraud, see, supra, §§ 20–58. 2 Texas & P. Ry. Co. v. Jowers (Tex. Civ. App.) 110 S. W. 946. 3 Larsson v. Metropolitan Stock Exchange, 200 Mass. 367, 86 N. E. 4 Anthony v. Day, 52 How. Prac. (N. Y.) 35. |