
    J. Fred Manny, Appellant, v. William J. Burke, Respondent.
    Third Department,
    September 13, 1916.
    Contract — breach of agreement to form theatrical partnership — • pleading — when plaintiff may sue for breach of contract — allegation of general damage — demurrer.
    A complaint which seeks a recovery for the breach of a contract to form a partnership by which the plaintiff, an actor, and the defendant, a theatrical manager, were to share the profits and losses of theatrical representations in which the plaintiff was to act, the plaintiff being able and willing to perform, should not be dismissed on the theory that the plaintiff should sue in equity for a partnership accounting. As the defendant is alleged to have refused to enter into the partnership agreement, the action is a legal action to recover damages for a breach of contract only.
    
      Additional allegations in said complaint, setting out that by a subsequent agreement the plaintiff was to have a weekly compensation for his work, may be disregarded and the complaint to recover general damages sustained.
    Although the complaint merely alleges that the plaintiff has been damaged in a stated sum by the defendant’s breach of contract, and although the defendant may be entitled to have the complaint made more definite on the subject of damages, and although the same may be difficult of proof, the complaint in this respect is proof against demurrer. Woodward and Howard, JJ., dissented, with opinion.
    Appeal by the plaintiff, J. Fred Manny, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 15th day of July, 1914, upon a decision of the court dismissing the complaint upon the pleadings after a hearing at the Albany Special Term.
    
      Albert B. Wolf, for the appellant.
    
      O'Brien, Malevinshy & Driscoll [Arthur F. Driscoll and Charles J. Tobin of counsel], for the respondent.
   Kellogg, P. J.:

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 theatres and other places of amusement as said Mr. Burke may from time to time determine.” The agreement also provided that after the net proceeds of the entertainment repaid the money advanced by the defendant, the parties were to share equally in the profits and losses of the enterprise. Apparently the plaintiff was to receive no other compensation. The agreement was to continue for three full theatrical seasons from September 1, 1913. At the time performance was contemplated the plaintiff demanded that the defendant fulfill and live up to his agreement, which he refused and still refuses to do, and the complaint continues, “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, for which, with interest, he demands judgment.

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. The action, therefore, is to recover damages for breach of contract only.

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.

Woodward, J. (dissenting):

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 defendant copartners in a theatrical venture. There can be no reasonable question that the recitals in said contract, together with the expressed consideration, made this a valid contract, binding on the parties. This agreement, made in March, was not to become effective until on or about the first of the following September, and was to continue, not for three years, but for “ three full theatrical seasons.” The complaint, after setting out the contract, continues: ‘‘ That after the signing and delivery of the above instrument in writing as set forth in paragraph number third (3) of the complaint it was agreed between the parties hereto as part of the agreement and contract on said day entered into between said parties that the plaintiff should receive for his compensation under said agreement and contract the sum of One hundred Dollars ($100) or more per week during the continuance of said agreement and contract.

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 covered by the opinion of the learned justice presiding at Special Term; but inasmuch as some of my brethren disagree, it seems proper to discuss the merits. The prevailing opinion suggests that the complaint demands relief because of the refusal of the defendant to perform the contract of copartnership, and says: “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.”

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 theatrical seasons of 40 weeks per season, for three years, 120 weeks at $100 per week.”

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 essential element — the only element —of the damages claimed. That this is the plaintiff’s theory, running through the entire complaint, is evidenced by his allegation that he was “ready and willing to fulfill and has fulfilled and performed his part of said agreement,” although the summons in this action was dated on the 10th day of February,. 1914, only about seven months after the time for the performance to begin on the three-year contract. The plaintiff makes no claim whatever for damages growing out of the breach of the written contract. His grievance is that the alleged verbal contract, for which there was no consideration, was not carried out; that he was employed at $100 per week for forty weeks in each year for three years. We have a right to accept his own construction of the pleadings, and, as he makes no claim which is good in law, there is no reason for disturbing the judgment.

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.  