Atchison-Ely v. Thomas

104 A.D. 368, 93 N.Y.S. 693

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1905
• Status: Published

Opinions

Ingraham, J.:

The complaint alleges that prior to the 18th of August, 1903, one Leander S. Sire was the owner of a certain opera called “ The Mocking Bird; ” that said Sire entered into an agreement with the plaintiff by'which-the plaintiff was to sing'and act in said opera for a season of thirty-five weeks in 1903 and 1904, for which he was to receive the sum of $7,000. at the rate of $200 per week; that from and after the 18th day of August, 1903, the defendants were partners and jointly interested in the ownership of the said opera and in the contracts theréafter mentioned, and in giving productions of the said opera in various cities in the United States; that prior to the 18th of August, 1903,. the defendants, desiring to procure an assignment of said contract between Leander S. Sire, the plaintiff, and one Madeline Besley, procured from Henry B. Sire an agreement by which Leander S. Sire and Henry B. Sire transferred to the defendants the said opera known as “ The Mocking Bird,” and all contracts with artists and other persons necessary for or incidental to the bringing out of such opera, and especially the said.contracts with the plaintiff and the said Madeline Besley; that this agreement, at the special instance and request of both of the defendants, was made and entered into nominally between the said Henry B. Sire and the said Brady Greer, notwithstanding the defendants were jointly interested in said contract as copartners; that at the ■ time of the purchase and sale of said opera the Sires, with the consent of - the plaintiff, duly assigned fhe contracts or agreements of employment which the said Sires had with this plaintiff, and all their rights thereunder, to the defendants, and. that the defendants thereupon and thereby assumed the completion and fulfillment of said contract or agreement of employment, with the plaintiff, and especially agreed - to pay the plaintiff for his services to be rendered in said production of “ The Mocking Bird” the-sum of $7,000 in weekly sums of $200 each ;' that the plaintiff liad' performed this contract on his, part up to and including the 21st day of November, 1903, when the defendants abruptly,' and without any previous notice to - the.' plaintiff and in violation, -of said agreement so assumed by the defendants, closed the production of tins' opera and discharged the plaintiff without reasonable cause; that the plaintiff had received ■from the defendants on -account of said contract of employment the sum of $2,000, leaving a balance due of $5,000, for which' the plaintiff , demands judgment. The defendant .Thomas interposed an answer, which, in substance, is a general denial. The defendant ■Greer interposed an answer admitting that he entered into an agreement with the plaintiff to perform certain services, • alleging that there was a uniform custom in the theatrical profession that a contract of the nature herein described could he terminated by the . defendant giving two weeks’ notice of his intention to cancel said contract, and that in pursuance of said custom the defendant fermi-nated the contrapt.

The plaintiff called as a witness Henry B, Sire, who testified that he saw the.defendant. Thomas in Saratoga in the summer of 1903, and Thomas told Sire that he wished to purchase the opera called “ The Mocking Bird,” and asked the witness what.his brother Leander would take for it; that the witness named $8,000, and Thomas said that that was more than he would give; that he would- give $6,000 ; that as he had already invested with Lean der' Sire about $2,000 in another opera, if-he took “ The Mocking Bird ” he wanted to be relieved of that contract and to' be credited with that $2,000; that Sire then, said: “Do you want to give $4,000 and your interest in the Four Leaf Clover for The Mocking Bird ? ” to which Thomas replied, “Yes, I Want to give $4,000.. * '* * I will give you $6,000 for the opera, less whatever I have invested in the other.” The witness replied, “All right, I will do that; I will close it with you.” Thomas then said, “Well, * * * I will send the money or arrange for the money in New York, and Mr. Greer will close it up for me; he will represent me in the transaction.” Thomas then said, “ Now, if I take this show, I want Mr. Edgar Ely. I understand your brother has a contract with him,” to which the witness replied, “Yes, sir, he has.” The witness then told Thomas that the terms were $200 per week; that the agreement was not in writing. Thomas then said, “I want to make that as part of the bargain; that if .1 take this opera I' must have Mr. Ely, as he Is a very important factor in the entertainment; * * * I also want to take over whatever people he (Leander Sire) has engaged for the opera.” Greer was then spoken of, when Thomas said, “ I think he is a bright young man, and I am going to give him an interest in. this show and he will be interested in it and will undoubtedly take a great deal of interest in the show.” The witness then testified that he saw Greer in New York and told Greer that his brother Leander was satisfied to close up the matter on the' terms agreed upon and allow Thomas credit for what Thomas had up to that time invested in “ The Four Leaf Clover,” and the matter was then closed up between Greer and the witness; Greer paid the money, engaged the plaintiff and the other people that had been engaged by Leander, and the opera was turned over to Greer. The witness then testified that he told the plaintiff that the opera had been sold, and that Thomas would want him to fulfill his contract with Leander S. Sire’for the balance of the season of 1903 . and whatever there was of 1904. The witness also said that Thomas had told him at Saratoga that he (Thomas) would" rather not be known in the transaction any more than possible. There was then introduced an agreement between the witness Henry B. Sire, of the first part, and Brady Greer, of the second part, which recited that Greer had entered into a contract or agreement with Leander S. Sire for the production known as “ The Four Leaf Clover; ” and, whereas, the party of the second part had paid to Leander S. Sire towards that production the sum of $1,864.50 ; and, whereas, the party of the second part “ desires to withdraw from said contract or agreement audio purchase from Leander S. Sire his entire rights and interest in the production known as ‘ The Mocking Bird,’-” to which’the .said Sire consented ; therefore, in consideration of one dollar, Henry B. Sire . sold, transferred' and set- over to Greer, party Of the second part, alf his riglit, title and -interest,' and the right, title and interest of Leander S. Sire in and to the production of the said play-known as “ The Mocking Bird,” including the costumes, scenery and all paraphernalia, composer’s"and author’s rights, and everything apper-. taining to said production, for the sum of $6,000, which was to be paid as follows: $1,864.50 theretofore paid by the. party of the • second part to-Leander S. Sire for the production of “The Four f Leaf Clover,” which was accepted as part payment of the $6,000, and the balance of $4,135.50 in cash on the signing and execution of the agreement, the party of the" second part releasing the said Sire from 4-lie production of said play, “ The Four Leaf Clover.” The agreement then prbvided that the party of the first part was to pay all .sums due and owing to the composers of the music and authors of the libretto of the production of “ The Mocking Bird,” so the same is delivered to the party of the second part free and clear from any claims of royalties, and the party of the second part agreed to pay such royalties from the date of tlje first production by him, at the' rate under, the contract heretofore "made and entered into between Leander S. Sire and said composers and'librettists; the party óf the first part agreed' to transfer to the party of the second part any and all contracts made with artists, chorus and other people theretofore made by the said Sire for the production of “ The Mocking Bird ” for the season of 1903 and 1904, of course excepting the con-' tract with Mabell’e Gilman. The party of the first part further agreed to procure from Leander S. Sire the release of Madeline Besley, with whom, he had a contract for her appearance in “ The Four Leaf Clover,” and consent to, the employment by the party" of " the second part of Madeline Besley for the production of, “ The Mocking Bird,”, on condition, however, that ■ the said Madeline • Besley consented to such cancellation by the said Leander S. Sire and released him from all claims under such contract.

■ This agreement was" executed- by Henry B. Sire and Brady Greer, was under "seal and duly acknowledged.' Greer paid to Sire .the- money mentioned in the contract by check. The plaintiff was then called and testified that he had a contract with Sire to sing in “ The Mocking Bird ” for thirty-five consecutive weeks; that Sire told him that the opera had been sold to Thomas to star Miss Besley and that he wanted the plaintiff especially ; that Thomas had said that he would take over the contract, and Sire assured the plaintiff that everything would be all right; that the performance of the opera went on until the twenty-first of November in Savannah, Ga., when it closed and there was no further performance; that they owed the witness $1,100 in Savannah when he stopped ; that Greer had assured the witness that when they arrived in New York they would get their money and that six or seven weeks afterwards he received the $1,100.

The cause of action thus sought to be enforced is one against these defendants as partners or jointly interested in the production of this play. The plaintiff had a contract with Sire, who' -was the owner of the play, by which Sire agreed to pay him $7,000 for his services for thirty-five weeks as a performer in the opera. The only evidence of any connection that Thomas had with th.e production of this opera was his statement to Sire that he wished to purchase the play and to secure the services of the plaintiff in producing it, and that at that time Thomas said that he intended to give to Greer an interest in the play. The formal contract, however, by which the "opera - was transferred was with Greer only. • The play was transferred to Greer and by such transfer Greer assumed the obligations of Sire in relation to the production. Thomas was not a party to this agreement, had no concern with it, was not liable under it, and there is no evidence that this intention of Thomas, assuming that Sire’s statement was true, was ever in fact carried out, that he ever produced the play, that he ever gave Greer an interest in it or that there was any understanding or agreement between them in relation to it. Both Thomas and Greer swore that there was no such agreement; that Thomas was never personally or jointly with ■ Greer interested in the opera, Thomas, merely loaning or advancing some money to Greer to purchase it from the Sires. If this opera had been profitable upon this evidence. Thomas certainly could not have maintained any claim for the profits or for any interest in production. He did not hold himself out as jointly interested in'its production. The title to the opera was vested in Greer, and the fact that the conveyance to him was under seal and the obligations assumed by Greer were those contained in this sealed instrument precludes any claim against Thomas as an undisclosed principal of undisclosed partner. ' Whatever Thomas’ intentions were at Sara-toga. there is no evidence' that such intention was carried out. The final arrangement that was made was a transfer of.-'the opera . and . the personal property necessary to produce it to Greer, who thereupon: became its owner and entitled to any profit from it and assumed the obligation of Sire, but ' Thomas cannot ,be. held as a partner or joint owner of the opera or in any way interested in i.t in view of. the character of the instrument which transferred it to Greer and the obligations that Greer assumed under that instrument. Sordid Thomas directly assume any Obligation to the plaintiff. He told Sire that, if he purchased the opera he should want the services of the plaintiff, but the evidence is that he did not purchase the opera, . and -that whatever his intention was when he. had- this conversation • with Sire .at. Saratoga it Was never carried out. There ■ could' undoubtedly have been a copartnership to produce this, play, the legal title to which was in Greer, but to. establish, sucli a copartnership and make Thomas liable as jointly interested with Greer in the production of the opera there must be some evidence of an agreement between. Greer and .Thomas from which a. joint interest in the play -itself and its production Could be established, and it is in'this • aspect of the case, as it seems tonne, that the'eyidence entirely fails to sustain • any cause .of action based upon an agreement between • Thomas and Greér to jointly produce, this play. As before stated,. •' such a joint enterprise cannot be .assumed from, ¡anything that happened-prior to the execution and delivery of the transfer from the Si-res to Greer. That instrument speaks for itself, .and by it Greer became the Owner of the play, and the obligations that -Greer assumed by that instrument are his individual obligations, and there is nothing to show that Thomas was an undisclosed principal by virtue of anything contained in the instrument, and there is no evidence to, show that as between Thomas and Greer there was any agreement, express or implied, which would make 'them jointly interested in the -production of this play, or jointlyi responsible for .the contracts made "td perform it, and.in-the absence of evidence to show that there' was a joint interest or an agreernent by which Thomas and Greer became jointly interested in the "performance or ■the adventure, I do not think this judgment 'can be sustained. The cause of action is not based upon any assumption by Thomas indi- ! vidually of Sire’s contract with the plaintiff, and whether or not there would be evidence to sustain such a cause of action it is not necessary now to determine. . The action is against the defendants as copartners or joint adventurers, andas the evidence fails.to show that there was any such partnership or joint adventure, Thomas is not liable for a breach of contract made by Sire with the plaintiff which was transferred by Sire to Greer by an instrument under seal, and which was broken by Greer.

I think the judgment and order appealed from should be reversed ■ and a new trial ordered, with costs to the appellant to abide the event.

Yan Brunt, P. J., and McLaughlin, J., concurred ; Patterson and Laughlin, JJ., dissented.