Collier v. Myers

52 Misc. 116 | N.Y. App. Term. | 1906

Per Curiam.

The plaintiff is an actress. Defendants are theatrical booking agents and have been theatrical managers. They sent for W. P. Lewis, an actor, and offered an engagement for one week in ¡Newark to plaintiff and her troupe at the rate of $200 per week. Lewis reported the offer to plaintiff who told him to accept the same. He called again on defendants and told them of plaintiff’s acceptance. They drew up an agreement, part of which was a general printed form of theatrical employment and part written in typewriting to suit the individual case., The preamble of this agreement read as follows: “This agreement, made and entered into, on this 27th day of March, 1906, by and between Mr. J. Glickman, party of the first part, and Louise Allen Collier, party of the second part, witnesseth,” etc. The agreement, also, in the printed part, provides that the party of the first part shall deduct from the salary of the party of the second part a 5 per cent commission for Myers and Keller, the defendants. These two features of the agreement would seem to indicate that defendants were acting as agents only, and that J. Glickman was the principal. The plaintiff, however, sued defendants, as principals, for a breach of the contract resulting from the discharge of plaintiff after the first performance. The justice allowed plaintiff $200 damages, with interest and costs. Defendants appeal. The agreement was signed, not by Glickman, but by defendants, with nothing to indicate that they signed in a representative capacity. The plaintiff’s name was signed by said Lewis with the addition “per W. P. L.” The plaintiff’s contention is that defendants held themselves out as principals and not as agents. Plaintiff was discharged by one Schwartz, acting as plaintiff’s witnesses claim for defendants, and not for Glickman- whom plaintiff and her representative never saw. As we have seen, however, the preamble in the agreement names Glickman as party of the first part; and also a provision appears in the said agreement for the payment of a commission to defendants. Besides this, Schwartz swears he acted for Glickman in discharging plaintiff. Furthermore, plaintiff’s representative Lewis admits he knew defendants were booking agents and were to receive a commission as such agents. This seems inconsistent with the theory that they were theatrical managers and acted as principals in the employment of plaintiff. The mere signing of their names to the contract which, as it appears from the contract itself, they made for another, does not make them principals, instead of agents. Flor can it be claimed that they acted as agents for an indisclosed principal, -as the name of Glickman appears in the agreement itself.

It seems to us that plaintiff has not made out a cause of action against these - defendants, and the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Present: Gildebsleeve, Fitzgerald and Davis, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.