Glennon, J.
The defendant has appealed from a judgment in the sum of $13,358.14 entered after a trial before a court and jury. The verdict as rendered originally was in the sum of $40,000, but, on motion, it was reduced without objection on the part of the plaintiff.
The cause of action was based upon the theory that the Actors’ Equity Association had maliciously, willfully, intentionally and wrongfully, and without just cause or excuse, induced, enticed and persuaded certain actors and actresses to leave the employ of the plaintiff, to break their contracts and to refuse to continue to perform and appear in a play which bore the title “ Right of Happiness,” at performances scheduled for Saturday afternoon and evening of April 11, 1931.
At the close of the plaintiff’s case, and again at the close of the whole case, the court reserved its decision on a motion to dismiss the complaint. After the verdict was rendered, the-court denied the motion to dismiss. In so doing we believe that the court fell into error. A brief résumé of the facts out of which this litigation grew will be set forth for the purpose of showing why we have reached this conclusion.
The defendant Actors’ Equity Association was organized to protect the actor in his relations with managers or producers in their working conditions. About ninety-five per cent of those employed as actors and actresses in the “ legitimate ” and musical comedy theatres in the United States are members of the association. It is affiliated with the American Federation of Labor, having received its charter in 1919.
The plaintiff was organized, to produce plays. Its president, Robert DuRoy, dominated and controlled its affairs. DuRoy is by occupation a playwright and actor. He was the author, and a member of the cast of the “ Right of Happiness.” In addition thereto, he has been a member of the defendant association since about 1925. As a result thereof he had at least some familiarity with the purpose and rules of the Actors’ Equity Association.
The plaintiff, as manager, entered into a contract with Miss Anne Sutherland, a well-known actress, on the 17th of March, 1931, wherein and whereby it agreed to pay her the sum of $175 on Saturday of each week from and after the date of the first public performance. Similar contracts were entered into between the plaintiff and the other members of the cast. In each case the standard form issued by the Actors’ Equity Association was used. The contract contained among others the following paragraph:
“5. The Manager agrees that he has notice that the Actor herein is a member of Equity and as such is bound to conform to its law[40]*40ful rules and regulations, and that it is a lawful rule and regulation of said association that, as far as the Manager herein is concerned, the Actor is to work only in companies operated by the Manager herein, when, (1) all members of said company or companies are members of Equity and/or Chorus Equity in good standing and continue to be such during the term hereof, and, (2) while the Manager has fully performed and is fully performing the covenants in each employment contract with each Equity and/or Chorus Equity Actor in each of said companies; and the Manager agrees that the Actor is not and shall not be required to work hereunder in violation of said rule or other lawful rule of said association, and that to the full extent to which this agreement is lawful, all actors in the company in which the Actor is employed shall be and shall continue throughout the term hereof (except as provided in paragraph 36 of the Rules) members of good standing of Equity and/or Chorus Equity.”
It might also be noted that under the regulations the actor agreed to rehearse without pay for several weeks before the first performance.
The play opened on April 2, 1931, after rehearsals covering a period of about three weeks. Apparently, it was doomed from the outset. The gross receipts from the sale of tickets covering the four performances during the first week amounted to only $1,085.85. The theatre had a seating capacity of about 900, and the average price of the tickets was two dollars The minimum rent was $2,000 per week, and the salaries provided for in the contract amounted to $1,310 per week.
At the end of the evening performance on Saturday, April fourth, DuRoy called a meeting of the cast. He informed them in substance that he did not have sufficient money to pay them. He said in part: “ In order for me to continue with the production, I would have to have the consent of each and every member of that company to play through with me the following Saturday night.” After conferring among themselves, he asserts that Miss Sutherland said in part: “ ‘ Bob, we have all agreed to play ball with you. * * * I realize we have put a lot of work in it. We believe in the play now just as much as we did before, and if it will mean that we might get something out of this play, we are ready to play with you through that Saturday night performance of the following week, and not make any demands on salary/ ” and further: “ I thanked every one of them, and as we were leaving the stage, Miss Sutherland came over to me. She said ‘ How about the picture rights to this play? ’ I said ' I don’t know what you mean.’ She said ' Would you be willing to give me a percentage of the picture [41]*41rights if we play along with you? ’ I said ‘ Miss Sutherland, you have agreed to play with me; if, on the following Saturday night after the performance, I am not able to fully meet the salaries, I will be very happy to go with you to Equity, and see that the matter of the picture rights is apportioned to each and every member of the cast. I will make no exceptions with anyone.’ ” Miss Sutherland gave a different version. She said: “ And at the end of the conversation I said to Mr. DuRoy — not on one side — 1 said that I would go on, on one condition, and that was that he would go over to Equity and see them about drawing up some sort of a form where the company would be given a certain amount of the money, if he sold it for the moving picture rights.”
During the following week there was a considerable falling off in the attendance. Although six performances had been given, the box office receipts amounted to only $1,085.85. It was quite apparent at that time that plaintiff could not pay the salaries of the cast for the two weeks and also the weekly rental. On Friday evening, April tenth, Miss Sutherland received defendant’s Exhibit “ B ” which reads as follows: “ I personally guarantee Anne Sutherland 2 weeks’ salary. Robert DuRoy.” According to DuRoy this paper was delivered because the night before Miss Sutherland had complained that her salary had not been paid. On the other hand, she contended that the so-called guaranty was delivered to her pursuant to an arrangement which was made when she refused to sign a communication addressed to the Actors’ Equity Association, wherein several of the members of the cast agreed not to hold Equity responsible for any defaults in payment by the manager under the contract. It might be noted, in passing, that it was conceded by the plaintiff that a producer who puts on a play is ordinarily required to furnish a bond to the defendant association to secure the salaries of the actors. -
In any event, it is not disputed that Miss Sutherland was dissatisfied because of the failure of the plaintiff to pay her any salary when she visited the office of the defendant on the morning of April eleventh. What she stated to Mr.
Free access — add to your briefcase to read the full text and ask questions with AI
Glennon, J.
The defendant has appealed from a judgment in the sum of $13,358.14 entered after a trial before a court and jury. The verdict as rendered originally was in the sum of $40,000, but, on motion, it was reduced without objection on the part of the plaintiff.
The cause of action was based upon the theory that the Actors’ Equity Association had maliciously, willfully, intentionally and wrongfully, and without just cause or excuse, induced, enticed and persuaded certain actors and actresses to leave the employ of the plaintiff, to break their contracts and to refuse to continue to perform and appear in a play which bore the title “ Right of Happiness,” at performances scheduled for Saturday afternoon and evening of April 11, 1931.
At the close of the plaintiff’s case, and again at the close of the whole case, the court reserved its decision on a motion to dismiss the complaint. After the verdict was rendered, the-court denied the motion to dismiss. In so doing we believe that the court fell into error. A brief résumé of the facts out of which this litigation grew will be set forth for the purpose of showing why we have reached this conclusion.
The defendant Actors’ Equity Association was organized to protect the actor in his relations with managers or producers in their working conditions. About ninety-five per cent of those employed as actors and actresses in the “ legitimate ” and musical comedy theatres in the United States are members of the association. It is affiliated with the American Federation of Labor, having received its charter in 1919.
The plaintiff was organized, to produce plays. Its president, Robert DuRoy, dominated and controlled its affairs. DuRoy is by occupation a playwright and actor. He was the author, and a member of the cast of the “ Right of Happiness.” In addition thereto, he has been a member of the defendant association since about 1925. As a result thereof he had at least some familiarity with the purpose and rules of the Actors’ Equity Association.
The plaintiff, as manager, entered into a contract with Miss Anne Sutherland, a well-known actress, on the 17th of March, 1931, wherein and whereby it agreed to pay her the sum of $175 on Saturday of each week from and after the date of the first public performance. Similar contracts were entered into between the plaintiff and the other members of the cast. In each case the standard form issued by the Actors’ Equity Association was used. The contract contained among others the following paragraph:
“5. The Manager agrees that he has notice that the Actor herein is a member of Equity and as such is bound to conform to its law[40]*40ful rules and regulations, and that it is a lawful rule and regulation of said association that, as far as the Manager herein is concerned, the Actor is to work only in companies operated by the Manager herein, when, (1) all members of said company or companies are members of Equity and/or Chorus Equity in good standing and continue to be such during the term hereof, and, (2) while the Manager has fully performed and is fully performing the covenants in each employment contract with each Equity and/or Chorus Equity Actor in each of said companies; and the Manager agrees that the Actor is not and shall not be required to work hereunder in violation of said rule or other lawful rule of said association, and that to the full extent to which this agreement is lawful, all actors in the company in which the Actor is employed shall be and shall continue throughout the term hereof (except as provided in paragraph 36 of the Rules) members of good standing of Equity and/or Chorus Equity.”
It might also be noted that under the regulations the actor agreed to rehearse without pay for several weeks before the first performance.
The play opened on April 2, 1931, after rehearsals covering a period of about three weeks. Apparently, it was doomed from the outset. The gross receipts from the sale of tickets covering the four performances during the first week amounted to only $1,085.85. The theatre had a seating capacity of about 900, and the average price of the tickets was two dollars The minimum rent was $2,000 per week, and the salaries provided for in the contract amounted to $1,310 per week.
At the end of the evening performance on Saturday, April fourth, DuRoy called a meeting of the cast. He informed them in substance that he did not have sufficient money to pay them. He said in part: “ In order for me to continue with the production, I would have to have the consent of each and every member of that company to play through with me the following Saturday night.” After conferring among themselves, he asserts that Miss Sutherland said in part: “ ‘ Bob, we have all agreed to play ball with you. * * * I realize we have put a lot of work in it. We believe in the play now just as much as we did before, and if it will mean that we might get something out of this play, we are ready to play with you through that Saturday night performance of the following week, and not make any demands on salary/ ” and further: “ I thanked every one of them, and as we were leaving the stage, Miss Sutherland came over to me. She said ‘ How about the picture rights to this play? ’ I said ' I don’t know what you mean.’ She said ' Would you be willing to give me a percentage of the picture [41]*41rights if we play along with you? ’ I said ‘ Miss Sutherland, you have agreed to play with me; if, on the following Saturday night after the performance, I am not able to fully meet the salaries, I will be very happy to go with you to Equity, and see that the matter of the picture rights is apportioned to each and every member of the cast. I will make no exceptions with anyone.’ ” Miss Sutherland gave a different version. She said: “ And at the end of the conversation I said to Mr. DuRoy — not on one side — 1 said that I would go on, on one condition, and that was that he would go over to Equity and see them about drawing up some sort of a form where the company would be given a certain amount of the money, if he sold it for the moving picture rights.”
During the following week there was a considerable falling off in the attendance. Although six performances had been given, the box office receipts amounted to only $1,085.85. It was quite apparent at that time that plaintiff could not pay the salaries of the cast for the two weeks and also the weekly rental. On Friday evening, April tenth, Miss Sutherland received defendant’s Exhibit “ B ” which reads as follows: “ I personally guarantee Anne Sutherland 2 weeks’ salary. Robert DuRoy.” According to DuRoy this paper was delivered because the night before Miss Sutherland had complained that her salary had not been paid. On the other hand, she contended that the so-called guaranty was delivered to her pursuant to an arrangement which was made when she refused to sign a communication addressed to the Actors’ Equity Association, wherein several of the members of the cast agreed not to hold Equity responsible for any defaults in payment by the manager under the contract. It might be noted, in passing, that it was conceded by the plaintiff that a producer who puts on a play is ordinarily required to furnish a bond to the defendant association to secure the salaries of the actors. -
In any event, it is not disputed that Miss Sutherland was dissatisfied because of the failure of the plaintiff to pay her any salary when she visited the office of the defendant on the morning of April eleventh. What she stated to Mr. Dullzell, the executive secretary and treasurer of the defendant, does not appear, since, upon objection by plaintiff, the testimony was excluded. However; after her talk two employees of the defendant accompanied Miss Sutherland to the theatre. The directions they were given by the executive secretary were also excluded.
We have conflicting versions of what happened in the afternoon of April eleventh at the theatre. It is fair to say that a demand was made for Miss Sutherland’s back salary. That the representatives of the defendant were well within their rights in going to the [42]*42theatre is evidenced by subdivision “ R ” of the regulations, which is a part of the contract. It reads: “ Deputies of Actors’ Equity Association will be permitted in each company and the duly authorized representative of said Association shall have free access to the stage and to all members of said Association at all times and said Association may represent its members in any dispute which may arise with the manager.”
During the course of the conversation which took place at that time DuRoy informed the representatives of the defendant that the members of the cast had orally agreed on April fourth to wait for their back salary until Saturday, April eleventh. According to him one of the representatives, a Mr. O’Neill, said in part: “ I am not interested in you or what you have to say. You either pay Miss Sutherland right now or your curtain does not go up.” O’Neill’s version was, “ I asked him if he would give me an order on the box office for the amount due Miss Sutherland for salary, or an order or a guarantee from Joe Leblang, who was then alive and a ticket broker. He could not do either.”
It was conceded by Mr. Mufson, the other representative who was present, that he informed Miss Ruth Holden, one of the actresses who was the Equity deputy for that company, that she was to instruct the entire company that inasmuch as Miss Sutherland had not been paid her salary due April fourth, there would be no performance, and to notify the members to that effect. It must be borne in mind that all the cast were members of the Actors’ Equity Association and bound by its rules and regulations.
It is not asserted by DuRoy that he submitted a proposed change as to the due date of the payment of salary to Equity for its approval by a duly authorized representative. Subdivision “ T ” of the regulations provides:
“ T. Unless any and all riders, changes or alterations of this printed form shall have been consented to by Equity such riders, changes or alterations, or any part thereof, are void, at the option of the actor (Equity consenting). It shall be the duty of the manager, not of the* actor, to submit proposed changes to Equity for its approval by a duly authorized representative.”
Apparently with that provision in mind, he sought to circumvent it by stating that Miss Sutherland promised that she would go to Equity and make known the facts. He quoted her as saying in reply to his question, “ Did you make everything clear to the officials, or whoever it is necessary? * * * ‘ Yes, I spoke to them, and everything is all right.’ ” Miss Sutherland vehemently denied that she had done so or even had promised DuRoy that she i would. There is nothing in the record to show that she did in fact [43]*43notify the defendant. There is no evidence to indicate that Equity ever had knowledge of the so-called modification, or that it consented to any changes or alterations in the contract. Since the plaintiff did not submit the proposed changes to Equity for its approval by a duly authorized representative it did not comply with the terms of regulation “ T ” as quoted.
We believe that the evidence falls far short of indicating that the Actors’ Equity Association maliciously, willfully, intentionally and wrongfully, and without just cause or excuse, induced, enticed and persuaded the actors and actresses to break their contracts, and to refuse to continue to perform. In Campbell v. Gates (236 N. Y. 457) Judge McLaughlin said: “ The great weight of authority in this country and in England is to the effect that if A has a legal contract with B, either for the rendition of service or any other purpose, and C, having knowledge of the existence thereof, intentionally and knowingly and without reasonable justification or excuse induces B to break the contract, by reason of which A sustains damage, an action will lie by A against C to recover the same. [See authorities cited in Lamb v. Cheney & Son, 227 N. Y. 418.] The action of C is malicious in that with the knowledge of A’s rights, he intentionally and knowingly and for unworthy or selfish purposes, destroys them by inducing B to break his contract. It is a wrongful act, done intentionally, without just cause or excuse, and from this a malicious motive is to be inferred. This does not necessarily mean actual malice or ill-will, bufithe intentional doing of a wrongful act without legal or social justification. The action is predicated not on the intent to injure, but on the intentional interference, without justification, with A’s contractual rights, with knowledge thereof. It is a legal wrong and one who commits it, if damage be sustained, must answer therefor.” In Hornstein v. Podwitz (254 N. Y. 443, at p. 448) Judge Hubbs summed up the rule which applies, in one sentence : “ The action is predicated on the intentional interference without justification with contractual rights, with knowledge thereof.”
The only purpose this defendant had in sending its representative to the theatre was to try to collect for Miss Sutherland the salary which fell due on April fourth. If plaintiff had paid her, this litigation would have been avoided. The contract, as we have seen, provided that the defendant had the right to represent Miss Sutherland in the dispute which she had with the plaintiff concerning her salary.
In so far as this plaintiff was concerned, it cannot assert with any show of right that there was any consideration for the promise of the actors to waive their rights to the payment of the salary which was due on April fourth. (Kellogg v. Olmsted, 25 N. Y. 189.)
[44]*44We have, therefore, the rather unusual situation where the plaintiff, which breached its employment contracts with Miss Sutherland and the other members of its cast, has been permitted to have a recovery for expenditures made in connection with a play which did not attract the public, on the theory that this defendant maliciously, intentionally, knowingly, and without justification, interfered with the performance of those very same contracts. We do not believe that such a recovery is just or proper, and consequently we have determined that it should not be permitted to stand.
While we do not know what effect the testimony which the defendant sought to offer with reference to the information Miss Sutherland gave to Mr. Dullzell, the executive secretary, might have had upon the minds of the court and jury, still, we are of the opinion that in this type of case where the question of intent upon the part of the defendant was highly important, it would have been competent to show the good faith of the defendant in sending its representatives over to the theatre to act in Miss Sutherland’s behalf. While we have not been referred to any authorities where this question has been discussed in cases involving a malicious interference with contracts, still in those of a similar nature where the intent of the parties’ act is deemed to be relevant, testimony of like import has been allowed. (McKown v. Hunter, 30 N. Y. 625; Heyne v. Blair, 62 id. 19; Noonan v. Luther, 206 id. 105; Davis v. Marvine, 160 id. 269; Taylor v. Manning, 190 App. Div. 559; People v. Dowling, 84 N. Y. 478; Beach v. Bemis, 107 Mass. 498.)
We are further of the opinion that the court erred in excluding the testimony of Mr. Dullzell as to the instructions he gave to Messrs. O’Neill and Mufson before they left the office of Equity on Saturday, April eleventh. This evidence might well have shown that these employees, if they were guilty of any wrong, were not acting within the scope of their employment. (Psota v. Long Island R. R. Co., 246 N. Y. 388; O’Brien v. Stern Brothers, 223 id. 290; Reilly v. Connable, 214 id. 586.)
For the reasons assigned herein, the judgment should be reversed, with costs, and the complaint dismissed, with costs.
Martin, P. J., Townley and Untermyer, JJ., concur; Merrell, J., dissents and votes for affirmance.