16 Daly 3 | New York Court of Common Pleas | 1890
The plaintiff, who is an author of experience and familiar with the art of constructing plays, suggested to the defendant Clemens that the latter’s book or novel called “The Prince and the Pauper” could be successfully dramatized, and the latter wrote to the plaintiff on December 17, 1886, a letter in which he said: “You have spoken of 1 The Prince and the Pauper ’ for the stage. That would be nice, but I cannot dramatize it. The reason I say this is because I did dramatize it, and made a bad botch of it; but you could do it, and if you will take one-half or two-thirds of the proceeds I wish you would. Shan’t I send you the book?” On the 24th of December, 1886, the plaintiff wrote to Mr. Clemens a letter, saying: “As regards * The Prince and the Pauper,’ I should be well pleased to undertake the dramatization of it. I shall be glad if you will send me a copy of the book. According to my remembrance of the book, the most taking stage arrangements would be to give both characters to the same performer, using a silent double in positions where they must for a moment appear together. If there is anywhere about a girl like what Lotta was twenty years ago, or Bijou Heron fifteen years ago, she might fill the duplicate part; but for such selection and other business details you know, I am now incompetent. Doubtless there are plenty of trustworthy men to take that matter in hand. In a day or two I shall have finished work on a libretto for a comic opera I have had to write, and shall be ready for fresh fields and pastures new.” On the 26th of December, 1886, Mr. Clemens wrote to the plaintiff: “I’ve ordered a copy of P. and P. to be sent to you. I’ve done up my absurd P. and P. dramatization, and will express it to you to-day or to-morrow.” The plaintiff says that subsequently Mr. Clemens came to Hew York, and it was then agreed that plaintiff was to receive at least One-half of the proceeds, and when it should be deemed expedient to put the play upon the stage' deponent was to take such active part in the business arrangement as his physical condition would permit. Plaintiff has been for more than ten years an invalid, and for seven years confined to his bed or a chair. Plaintiff states that he wrote several letters in April and May, 1887, to Mr. Clemens, giving his reflections on the work of dramatization of the play, and concerning the proper person to perform the principal characters; also stating from time to time what progress he had made in the work. That on the 13th of June, 1887, he had completed the first act, and read it to Mr. Clemens, who expressed himself pleased with it, and in the same month it was agreed between them that deponent should proceed without delay, and finish the play as rapidly as possible. In August, 1887, plaintiff wrote to Mr. Clemens that he had the satisfaction of seeing the whole five acts completed, with the single exception of the last scene of the fifth act, and two weeks afterwards stated to Mr. Clemens that the play was ready at any
The defendant Clemens does not deny the writing of the letter of December 17, 1886, first above referred to, in which he proposes the dramatization, but declares that he is not able, not having kept a copy of the letter, to say whether the extract given by the plaintiff is correct or not. He produces in full the plaintiff’s reply, dated December 24,1886, which is in these words, so far as this particular matter is concerned: “My Dear Mark: As regards ‘ The Prince and the Pauper,’ I should, of bourse, be well pleased to undertake the dramatization of it, though why you imagine I should be able to make a better piece of work than you can I do not understand. In any case, I hope you would let me see your version, as I might discover at the very start that I could not do so well. You would have to bear in mind that even if I should achieve a play of superlative and unprecedented merit, I am in no condition to look after its acceptance and production, i. e., the business part of the production. Managers are all of a new generation. Though I know the sort of persons required for properly acting such a piece, I don’t know where such persons are to be found, nor whether they exist. According to my remembrance of the book, the most taking stage arrangement would be to give both characters to the same performer, using a silent double in positions where they must for a moment or two appear together. If there is anywhere about a girl like what Lotta was twenty years ago, or Bijou Heron fifteen years ago, she might fill the duplicate part; but for such selection and other business details you know I am now incompetent. Doubtless there are plenty of trustworthy men to take that matter in hand; so I shall be able, if you will send me a copy of the book, the commonest copy you have, as I shall use it roughly, (Koto will be delighted, as she has never read it, considering her choice copy as too good to be cut open.) In a day or two I shall finish work on a libretto for a comic opera I have got to write, and I shall be ready for fresh fields and pastures new.”
From the statement of both parties, it is manifest that Mr. Clemens made a distinct proposition to plaintiff to dramatize the work, and that the latter accepted it, and that this was in writing on both sides,—in their respective letters of December 17 and December 24, 1886; and that in June, 1887, plaintiff read or gave to defendant a portion of the work. The plaintiff says he was directed by defendant to go on and complete it. This is denied, but it is not suggested that plaintiff was instructed to abandon it. Mr. Clemens held his own views as to plaintiff’s being able to do what he had undertaken, but it is manifest that plaintiff proceeded, and completed it. Whether the letters reporting progress were received or not is a question of fact, which need not be determined in order to arrive at a conclusion as to the rights of the parties. There were some conversations which defendant characterizes as general, but the substance of which he does not give. Plaintiff is very precise in his account of them. In the multitude of professional work pressing upon so busy and popular an author as Mr. Clemens, much may have escaped his recollection that would not be forgotten by an invalid like the plaintiff, confined to his bed or his chair, and conceded to be a man of methodical habits in recording the details of his correspondence or conversations. The plaintiff’s positive recollection might be regarded as satisfactory evidence on these points, if opposed to the defendant’s want of recollection.
But, if nothing had been said or written by plaintiff to Mr. Clemens about the progress of the work after June, 1887, it in no way affected the rights of the parties based upon the original proposition and its acceptance. This acceptance is said to be qualified, but I do not think it may be justly so considered. The plaintiff expresses himself with modesty as to the results of his undertaking, but this is, perhaps, but the conventional self-disparagement of conscious merit. It probably did not mislead an author as experienced as Mr. Clemens, who is himself not given to boasting of results before he has achieved them. There being, as I have said, a definite proposition made, and an acceptance and a contract thus entered into, the plaintiff could go on with
There being a contract between the parties which has never been rescinded, the question is whether the plaintiff is entitled to enforce it in the way he seeks; that is, by injunction against performances by the defendant Clemens, and the defendants Mrs. Richardson and Mr. Frohman, of any dramatization of the book except that prepared by the plaintiff. It is contended by the defendant Clemens that this contract is materially deficient and uncertain, and incapable of being carried into effect without the court making another and further agreement for the parties; that it does not specify when, where, or how the play is to be written or performed; and therefore it cannot be spesifieally enforced; and that, if plaintiff prevents a performance of the play now acting, there is no certainty that the one he has written can be acted. I think the contract definite and certain, and capable of being carried into effect. Although it does not provide for all the "details, it is probable that no more definite contract could have been made at the time. It contemplated the finding of a person to play the part, and of a manager to produce the play. In the nature of things, no specific time could be fixed for either occurrence. If a further and other contract were necessary when these things should concur, yet the original agreement could be enforced.
In the case of England v. Curling, 8 Beav. 129, certain persons, desiring to enter into a copartnership, caused a draft of their agreement to be prepared, and signed it with their initials, not intending it as a final agreement, nor as containing all details, but contemplating the preparation and execution of a formal copartnership deed. Such a.deed was drawn, but never executed, because the parties could not agree upon all of its provisions; yet they went on and began business, though the full arrangement of details was never completed. The court enforced the agreement to the extent of enjoining one co-partner from entering into business with other persons during the partnership term, although it was conceded, in the language of the court, to be “impossible to make persons who will not concur carry on a business jointly for their common advantage.” It was also held to be of no consequence that the details of the business had not been agreed upon, because, as the court says, “a copartnership agreement is open to variation by the parties from day to day,” What could better describe the state of the agreement between these parties, Mr. House and Mr. Clemens ? From the nature of their projected undertaking, any agreement that they made as to details was likely to be varied from time to time, and any stipulations as to such details might, therefore, properly be left to the future. If the contract between plaintiff and defendant is one which can be specifically performed by the latter, then the plaintiff is entitled to maintain an action to compel such performance, if he has no adequate remedy at law. That the contract can be specifically performed is conclusively shown by the arrangement which Mr. Clemens has made with Mr. Frohman for putting Mrs. Richardson’s dramatization upon
Upon these authorities the right of the plaintiff to an injunction restraining Mr. Clemens from engaging in or promoting or authorizing the performance of a dramatization (by any other person than the plaintiff) of “ThePrince and the Pauper” is clear, because such action on defendant’s part is adverse to the joint undertaking between him and the plaintiff for the writing and production of a dramatization of defendant’s book. It is shown that Mrs. Bichardson and Mr. Frohman, the other defendants, had sufficient notice of the plaintiff’s rights to entitle the latter to include them in the injunction against Mr. Clemens. Mrs. Bichardson was informed by Mr. Clemens that the plaintiff had done some work upon the play, and this was sufficient to put her upon inquiry. Defendant Frohman appears to have been expressly informed of plaintiff’s rights. In the agreement made by the defendants among themselves for the production of Mrs. Bichardson’s dramatization there is a stipulation concerning possible claims on the part of any other person, and it is evident they contemplated the plaintiff’s claim, and none other. The motion for an injunction should be granted, with $10 costs.