160 N.Y.S. 879 | N.Y. App. Div. | 1916
Lead Opinion
Upon the trial the defendant had judgment upon the pleadings dismissing the complaint. The complaint alleges an agreement between the defendant, who “is well and favorably known as a producer and promoter of vaudeville entertainment,” and the plaintiff, who “possesses unique, unusual and extraordinary ability as a violinist and an actor, and particularly adapted for the protrayal of the character of entertainment that is about to be presented by said Mr. Burke.”
The agreement recited that the parties “ desire to become associated together in the production and presentation of said entertainment to be provided by said Mr. Burke in vaudeville, theatres and other places of amusement,” and provided that the defendant is to produce and finance the entertainment and be the general manager thereof; and provided, among other things, that the plaintiff is “to devote his entire time and his best ability to the portrayal of the leading male role or the rendition of such other services as said Mr. Burke may direct in the entertainment to be provided by said Mr. Burke in vaudeville
That action was brought April 8, 1914. The complaint also alleged that after the signing and delivery of the written agreement, it was agreed between the parties, as a part of the agreement on said day entered into between the parties, that the plaintiff should receive for his compensation under said agreement, the sum of $100 or more per week during the continuance of said agreement. The Special Term dismissed the complaint, apparently upon the ground that the agreement to pay the $100 a week was without consideration, and that the plaintiff could not bring an action for wrongful discharge and breach of contract but must proceed as for a settlement and an accounting of partnership affairs.
There were no partnership affairs to be settled. The parties had made an agreement to form a copartnership to begin September first, but the defendant violated the agreement and, therefore, the copartnership was never in fact formed. The plaintiff’s damages come from the fact that by the defendant’s breach the copartnership was never entered upon and the plaintiff lost the profits which would have resulted therefrom. The plaintiff’s rights come, not from the copartnership business, but from the defendant’s breach of the agreement to enter upon and conduct the copartnership business contemplated.
On the question of damages the complaint is not very definite; it alleges that the plaintiff has suffered $12,000 damages. Perhaps the defendant could have obtained an order requiring the complaint to be made more definite upon that subject." Upon a demurrer to the complaint the pleading must be liberally construed, and all reasonable intendments are in favor of the plaintiff. (Ellsworth v. Agricultural Society, 99 App. Div. 119.)
There may be difficulty in proving the plaintiff’s damages, but that is no reason for dismissing his complaint. He has alleged a valid contract and a readiness to perform on his part and a demand upon the defendant for performance and his refusal and the damages resulting from that refusal. The complaint is, therefore, sufficient as against a demurrer.
If the defendant is well and favorably known as a producer and promoter of his entertainment, as he admits in the contract, evidently the copartnership agreement had value to the plaintiff, and by the breach damages would follow. It is evident the plaintiff is not seeking to recover the $100 a week as that would be a small part of the damages alleged. He seeks to recover the general damages resulting from the defendant’s refusal to perform. The allegation about the $100 per week was evidently thrown in as a safeguard, but has no bearing upon the main question relied upon.
I, therefore, favor a reversal and a new trial, with costs to the appellant to abide the event.
All concurred, except Woodward, J., who dissented in an opinion, in which Howard, J., concurred.
Dissenting Opinion
The complaint in .this action alleges the place of residence of the plaintiff and defendant, and that “ on or about the-day of March, 1913, the defendant entered into a written contract and agreement with the plaintiff, and duly executed by the plaintiff and the defendant, ” which agreement is set out in detail, and which concededly constituted the plaintiff and
Fifth, that thereafter, and on or about the 1st day of September, 1913, at the time the above agreement and contract was to commence, the plaintiff demanded of the defendant that he fulfill and live up to the said agreement and contract entered into by him with the defendant, but the defendant refused and still refuses to fulfill and live up to said agreement and contract, and that the plaintiff was at all times herein mentioned ready and willing to fulfill, and has fulfilled and performed his part of said agreement and contract; that by reason of the defendant’s failure to fulfill and live up to his part of said agreement and contract this plaintiff has been damaged to the sum of ” $12,000.
The complaint then demands judgment against the defendant for $12,000, with interest from the 1st day of September, 1913, besides the costs of this action.
The defendant’s answer denies the material allegations of the complaint, sets up the Statute of Frauds as against the 4th paragraph of the complaint, and demands. the dismissal of the complaint. Subsequently a motion was made for judgment on the pleadings, and the learned court at Special Term dismissed the complaint, on the ground that it failed to state facts sufficient to constitute a cause of action.
It had seemed to me entirely obvious that the judgment should be supported by this court, upon the general grounds
Perhaps the best answer to this suggestion is that made by the plaintiff, through his attorney, in the brief now before this court. He says of his complaint that it alleges the making of the written contract, “ and sets forth in the fourth paragraph that after the signing of the contract in writing * * * it was agreed between the parties to the agreement and contract so entered into between them that the plaintiff should receive the sum of $100 or more per week during the continuance of said agreement and contract, and sets forth in. the fifth paragraph that thereafter and on or about the 1st day of September, 1913, that the plaintiff demanded of the defendant that he fulfill and live up to his agreement and contract entered into by him with the defendant, and that the defendant refused, and still refuses, to fulfill and live up to the agreement and contract, and that the plaintiff was at all times herein mentioned ready and willing to fulfill and has fulfilled and performed his part of the agreement and contract, and that by reason of the defendant’s failure to fulfill and live up to his part of his agreement and contract, he has been damaged in the sum of $12,000, being the amount of damages sustained by him by reason of the defendant’s failure to provide employment for the plaintiff as set forth in the agreement and contract, from the time the agreement or contract was to commence on or about September 1st, 1913, and to the time the contract was to continue, which was for three full
That is, the plaintiff himself declares that the gravamen of his action is the loss of employment at $100 per week for forty weeks per year for a period of three years, an aggregate of exactly $12,000, the amount of his alleged damages. He wholly ignores the fact of the contract being one of copartnership, in which he was to share in the profits and losses, and simply seeks to hold the defendant as an employer for a definite term of forty weeks in each of three years. If there was any such verbal agreement as alleged, it was simply an understanding as to the amount which the plaintiff was to draw from the copartnership during its performance; but this would obviously depend upon the question of whether the copartnership was successfully carried on, for his written agreement was to share in the profits and the losses, and the amount of his actual compensation could not be determined until it was determined whether there were profits or losses. If the losses exceeded the earnings of the copartnership, it must be obvious that the plaintiff would not be entitled to $100 per week during the entire term.
The plaintiff having himself given us the true construction of his pleadings, and this was obviously what was done before the court at Special Term, it is difficult to understand why this court should be astute to discover a different construction under which the complaint may be sustained. The plaintiff is not here claiming damages for the failure of the defendant to perform his written contract, except as that is supposed to underlie the alleged verbal agreement to pay the plaintiff $100 per week for 120 weeks during a period of three years. His theory is that the defendant employed him for a definite period, not that he was employed by the copartnership, with an understanding that he was to draw $100 per week during the performance of the contract, dependent, of course, .for its continuance upon the partnership continuing in business and earning a sum sufficient to pay the same. Having entered into a written agreement of partnership, he now seeks to make one member of the firm an employer, and the question of $100 per week is not “ evidently thrown in as a safeguard,” but as the essen
The judgment appealed from should be affirmed, with costs.
Howard, J., concurred.
Judgment reversed and new trial granted, with costs to appellant to abide event.
