Walton v. Mather — 53 N.Y. St. Rep. 716

Majority

p. 716

Henry E. Walton, App’lt, v. Margaret Mather, Resp’t.

(City Court of New York, General Term,

Filed June 28, 1893.)

Headnote

Contract—Employment as stage -manager.

In an action for the wrongful discharge of plaintiff as stage manager off defendant’s company, the proof showed that one W. was the manager of the company; that defendant so told plaintiff; that W. executed a memorandum stating that he ha! employed plaintiff for the season of lb90-l, at. a salary of seventy-five dollars a week, subject to the conditions and regulations of a contract which was to be substituted for it; that thereafter W.

• introduced plaintiff to defendant as the stage manager, who agreed that he. should have full charge, and he posted notices for rehearsals signed by himself as such and continued to act and was paid until December, when he was discharged. Held, that it was not necessary that such conditions, and regulations should he in writing, hut they could be waived or agreed upon by the parties orally; that there was sufficient proof of an employment and its terms, and that a non-suit was improperly granted.

Appeal by plaintiff from judgment of non-suit.

Nathan Lewis and S. G. Adams, for app’lt; Dittenhoefer & Gerber, for resp’t.

At the close of plaintiff’s case at trial he was non-suited on the grounds that the parties never came to a complete final contract, and that D. 0. Willoughby had no authority to act for Miss Mather, the defendant. The plaintiff testified that “ Mr. Willoughby, in 1890 and 1891, was the financial and personal representative and manager of the defendant, and I know that, by Miss Mather telling me so,” and that “ Miss Mather told me a dozen times', twenty .times, that Mr.'Willoughby was the manager of her company.” The proof in this regard was sufficient to carry the question of Mr. Willoughby’s authority to the jury. How as to whether the parties ever came to a complete final contract. The plaintiff had marked in evidence the following: “ This memorandum certifies that I have engaged

this 12th day of June, 1890, Mr. Henry E. Walton, for the-Margaret Mather Dramatic Co., season 1890-1, at a salary of seventy-five (75) dollars per week, subject to the condition's and regulations of a contract which is to be substituted for th& memorandum. .

(Signed) D. C. Willoughby, Henry E. Walton.”

Although this memorandum names the term of employment,' rate of compensation and general nature of the business, yet it is not a contract because it is subject to conditions and regulations to be thereafter agreed upon by the parties; hence the minds of the parties had not yet met. And if plaintiff’s cause had rested solely on this memorandum, the non-suit would have been justified by the rulings in the leading case upon this subject of Chinnock v. The Marchioness of Ely, 12 L. T., N. S. 251, and in

p. 717

Mayer v. McCreery, 119 N. Y., 434 ; 29 St. Rep. 690 . However, it must be remembered that in both of those cases the contracts were required to be in writing by the statute of frauds, while there is nothing in the memorandum here which requires the conditions and regulations to be agreed upon to be in writing, nor does it come within the provisions of the statute of frauds. Hence those conditions and regulations could be waived or agreed upon by the parties orally; and this plaintiff contends by evidence that all conditions and regulations were waived by Miss Mather, except as to the nature of the services to be performed by him, to wit, as stage manager of her company; while she contends in her answer “ that one of the conditions of the employment of the plaintiff was that his engagement and employment could terminate by either party giving to the other two weeks previous notice of their intention to terminate. It is true that by the answer she denied making any contract at all, but, as already shown, plaintiff’s proof of Mr. Willoughby’s authority to act for her was sufficient to carry that question to the jury, and as to her own participation in the making of the contract the plaintiff testified: “ I had the first conversation with Miss Mather in regard to this contract in August, at the Victoria ” and that “ after that paper of June 12, 1890, was signed I saw Miss Mather in August at the Victoria hotel; that was the first time I had seen her, except on the stage; personally to know her. Mr. Willoughby was present and with me at the time; Mr. Willoughby introduced me to her; I said I had had the pleasure of seeing her before, but not personally to be •acquainted with her. He said: ‘This is the stage manager.’

“Mr. Willoughby said this is the stage manager. She asked me various things about the people; did I know any of them ? I said 1 knew some of them, and then we had a further conversation, which was to this intent: I said: ‘You will understand before I commence with you, Miss Mather, that I have the entire sole control of the stage ; not to be a manager in name, to ring up the curtain ; but I must be responsible for everything; I must be the stage director, not alone in name, but in act’ She agreed with me perfectly. That was thereupon settled and we arranged for a call of the whole company ; she told me when to call them; I mean by that, that the stage manager puts up a notice stating that there will be a rehearsal at such and such a time on such and such a date for everybody, and in pursuance of that arrangement I called the company. I did ; I signed it with my own name as stage manager for Margaret Mather, and the company met. And .after that I went on and continued to render services as stage manager of the company every day up to the opening night, which was, I think, September 8th; and after that I continued every day up to December ; from the time of the opening of the season in September until Hecember the company visited many places, and performed in different places. In December we were performing at the Fifth Avenue Theatre. I was paid up to December regularly. Mr. Willoughby paid me at the beginning,” and that he was discharged without cause on December 8, 1890.

p. 718

The plaintiff should not have been nonsuited, for his proof shows that Miss Mather employed him as the stage manager of her dramatic company ; that the term of his employment was for her season of 1890-1, which commenced in August, 1890, and ended in May, 1891, and that the rate of his compensation was-fixed at seventy-five dollars per week ; that he entered upon the performance of such employment in August, 1890, and continued the same to December 8, 1890, for which he was paid seventy-five dollars per week by her manager; that he was then discharged without cause, and that he is entitled to recover seventy-five dollars for each of about twenty weeks remaining of the term of his employment.

Judgment reversed and hew trial granted, with costs to appellant, to abide the event.

Fitzsimons, J., concurs.