Fejer v. Paonessa

By plaintiff’s complaint as amended he seeks judgment against defendant upon six causes of action: (1) amount unpaid on a contract whereby plaintiff was employed by defendant to orchestrate and act as musical director of an operetta, and to adapt and arrange a musical score thereof; (2) balance remaining unpaid to Miliza Korjus for services rendered by her as a star singer in the operetta, her claim having been assigned to plaintiff; (3) on a promissory note executed by defendant; (4) on a dishonored check; (5) a percentage of the gross receipts derived from the production of the operetta; (6) for attorney’s services rendered in prosecuting Miss Korjus’ claim for wages.

The complaint in intervention of Miliza Korjus is (1) for services rendered under her contract with defendant as a star singer and performer in an operetta, and (2) for the use of her gowns and costumes in its production.

The court found that plaintiff and defendant entered into a contract whereby plaintiff agreed to orchestrate an operetta for a salary of $250 a week and to adapt and arrange the musical score for 1 per cent of the gross receipts thereof; that there is due to plaintiff pursuant to the agreement the sum of $2,000 for salary plus $600 representing 1 per cent of the gross receipts from the performances; that defendant is indebted to plaintiff in the sum of $909 for the balance of moneys expended by plaintiff to copyists and orchestrators in copying the music; that defendant became indebted to Miliza Korjus in the sum of $10,000 for her services as a singer and $1,000 for costume rentals and she was paid only $4,500; that on November 1, 1948, plaintiff, intervener, and defendant mutually agreed that the balance due Miss Korjus was $5,500 for services and $1,000 for costume rental, and that the balance due plaintiff was $2,000 for services and $909 for money paid to copyists; that in order to obtain a release of certain bond money posted by defendant with Actors’ Equity Association to pay for the services of other actors and workmen employed in the operetta the parties agreed that defendant should execute a promissory note for $8,500 and give plaintiff a check for $909; that the note was made pay

(c) A witness on behalf of defendant was absent from the state on the date of trial although he was under subpoena and on a previous date had been instructed to return on the trial date. An affidavit sets forth the evidence which defendant claims the absent witness would have given and counsel for plaintiff and intervener stipulated that he would so testify if present. His evidence was therefore considered as actually given and his absence was not a ground for postponement. (Code Civ. Proc., § 595.)

(d) Defendant contends that his defense was materially injured by the fact that his deposition, previously taken by plaintiff, had not been transcribed and filed. Defendant was represented by counsel and was himself an attorney. He knew he had not read and corrected his deposition. If he had desired its use at the trial it was his privilege to have had it transcribed and filed. The statute provides for the taking of the deposition of one party at the instance of the other (Code Civ. Proc., § 2021) but there is nothing in the law which compels the latter to have it transcribed and filed.

A motion for the continuance of a trial is addressed to the sound discretion of the court. Since none of the grounds advanced by defendant furnish a sufficient reason for the requested postponement the court did not abuse its discretion in denying the motion.

2. Defendant contends that the first count of the complaint in intervention does not state sufficient facts to constitute a cause of action for the reason that it purports

3. Defendant’s objection to the second count of the complaint in intervention is also without merit. Such count restates the allegations in the first count and alleges in addition that defendant requested intervener to furnish her own-gowns and costumes for the performances and agreed to pay $250 a week for the use thereof; that she used and wore them during the four weeks of the performance for which there became due her the sum of $1,000 in addition to her salary, no part of which has been paid. The contract with reference to costume rental is not a part of the salary agreement. It is further alleged that about November 1, 1948, an accounting was had between plaintiff, intervener and defendant and an account was stated by which it was agreed and determined that there was then due to intervener the sum of $6,500 and to plaintiff $2,000; that as evidence thereof defendant executed and delivered to intervener his promissory note for $8,500, which was, at the request and for the convenience of defendant, made payable to plaintiff, defendant then well knowing that in fact the sum of $6,500 evidenced by the note was due and payable directly to intervener and $2,000 to plaintiff; that no part of the note has been paid. Since the note is for

4. Defendant asserts that the third count of plaintiff’s complaint as amended is insufficient for the reason that there is no allegation that defendant ever delivered the note. The note is the same as that which is the subject of the second count in the complaint in intervention. Defendant’s objection is not now available to him since (1) the point has not previously been raised either by demurrer, answer or otherwise, (2) the complaint in intervention specifically alleges delivery of the note, (3) the note represents the total balance arrived at in an accounting and found due to plaintiff and intervener, (4) the facts with reference to the note and the total amount of the indebtedness are fully covered by the findings, (5) the amounts due and owing to plaintiff and intervener respectively are set forth in the findings and a separate judgment is entered in favor of each for the amount unpaid.

5. In the second count of plaintiff’s amended complaint he alleges the defendant’s indebtedness to Miss Korjus and her assignment of the account to him. Defendant complains of the absence of a finding as to whether such assignment was in fact made. Plaintiff is not injured by the absence of. such finding and the objection is without merit. Plaintiff and intervener were acting in harmony throughout the action for the purpose of collecting the amounts due them respectively from defendant. Plaintiff has made no claim to ownership of the amount due to Miss Korjus other than by the allegation in his pleading. The findings determine that Miss Korjus is entitled to payment of the amount referred to and the judgment is in her favor for the balance due her. Plaintiff has made no objection to the findings or to the judgment. He is a party to the action and is bound by the judgment. Defendant is not required to pay more than the total sum due the parties respectively as required by the judgment.

6. Defendant contends that the finding that Miss Korjus kept and performed all the terms of her contracts and rendered services to defendant for the period of four weeks and by reason thereof there became due to her the sum of $11,000, of which $4,500 had been paid, is not sustained by the evidence. He does not question that the evidence shows Miss Korjus performed services for four weeks at an agreed compensation of $2,500 a week; that she furnished her own costumes at defendant’s instance and request, for which he agreed to pay her $250 a week; that he paid her $4,500 and no more.

7. Defendant asserts that the finding “that there is due the intervener” certain sums for wages and costume rental is a conclusion of law. Other findings are specific as to the services rendered by intervener, the amount agreed to be paid for such services, and the amount actually paid, hence the objection to the finding referred to is without merit.

8. Further objection is made to the same finding that the amount due was “for wages.” The materiality of the presence or absence of the quoted words is not pointed out. Whether the amount owing to intervener is to be considered as wages or money due under the contract, the result is the same. Defendant agreed to pay the money and did not do so. In plaintiff’s complaint there is an allegation that the amount unpaid was for wages and a prayer for an attorney’s fee thereon. Since the court did not allow such fee the allegation and finding are immaterial.

9. The judgment in favor of intervener is not excessive by reason of the inclusion of the sum of $1,000 for costume rental. The contracts for services and for costume rental were separately made, the latter after the former. The evidence sustains the finding to that effect.

10. Contrary to defendant’s contention the conclusions of law are sustained by the findings which have been previously referred to and this opinion will not be encumbered with a further recitation of their contents.

11. The finding that plaintiff and intervener signed a letter to Actors’ Equity Association in order that defendant might obtain a release of certain bond moneys which he had posted for payment of services of other actors and workmen employed in the operetta and at the same time defendant executed his promissory note for $8,500 and gave plaintiff a

12. Defendant assigns error in the overruling of many of his objections to the introduction of evidence. We have carefully examined all such objections. While some of the evidence objected to may have been immaterial it has no bearing whatsoever upon the final result of the action and cannot have had the slightest influence upon the trial judge in rendering his decision. The evidence to which no objections were offered fully sustains the findings and judgment.

Judgment affirmed.

Moore, P. J., and McComb, J., concurred.

A petition for a rehearing was denied May 24,1951.