Variety (November 1908)

VARIETY COURT SUGGESTS AGREEMENT BETWEE N ARTIST AND AGENT Judge Seamon Makes Interesting Comment on Thea- trical Contracts in Suit for Commission In rendering a decision Tuesday in favor of Lykens & Levy in their suit to recover $75 on a commission claim on $1,500 against the Four Mortons for a cancelled engagement at the Fifth Avenue Theatre last spring, Justice Seamon of the Munici- pal Court of New York made some point- ed observations on the existing booking system. "Although in this case the principle of law is plain," he said, "it does appear that the arrangement is equitable and works a hardship on the artist, and it seems to me that such a contingency should be provided against by the exist- ence of a contract between the artist and the agent which would cover commission payments in the event of a cancellation. An organization of the numerical strength of the White Bats of America should be able to secure the general use of a suit- able contract form of this sort." The Qaae was a most interesting one from all sides. It would seem under Judge Seamon's decision that an agent is entitled to demand his commissions as soon as he has delivered the contracts be- tween the manager and the artist, just as in a real estate or similar transaction an agent may make demand for his fee as soon as an exchange of agreements is made between the two parties for whom he is acting as intermediary. The evidence showed that a member of the Lykens & Levy firm called upon Sam Morton when he was playing at the West End Theatre, New York, last February with "The Big Stick," and arranged with him to act as The Mortons' agent in se- curing vaudeville engagements with the Keith-Proctor firm. Morton agreed to thj proposition, and the next morning Lykens delivered the contracts. The agreements provided for the pay- ment of 10 per cent, commission to be held out of the salary at the end of the week. As a matter of fact, however, only 5 per cent, was held out of the salary, and for two weeks previous to the can- cellation at the Fifth Avenue Sam Mor- ton paid to Lykens & Levy the other 6 per cent. This was Mr. Morton's testi- mony, and the C^irt accepted it to estab- lish an oral agreement between artist and agent. It was largely upon this evidence that the decision was rendered in favor of the agency firm. During a subsequent address to the Court Denis O'Brien, attorney for the White Rats, who appeared for Mr. Mor- ton, said that at the time the United Booking Offices had refused to hold out the entire 10 per cent, as was the cus- tom, a circumstance which had led to the other arrangement. The establishing of the oral agreement between Mr. Morton and Lykens & Levy, however, had left the Morton-Keith-Proctor contract out of the consideration. Mr. O'Brien said that the issue was a serious one which affected the whole body of artists, and the Rats were desirous of making it a test case. He accordingly asked for a stay. In granting this re- quest Judge Seamon said that the Rats had better go into a court with a con- tract between artist and manager which was not complicated by any such oral agreement. It was later decided not to carry the Lykens & Levy-Morton decision to a higher court, but to wait until a clear case could be brought into court. In spite of this defeat the White Rats will carry on its fight against commission abuses. It has record of two cases where acts cancelled in the middle of the week because of illness received salary only for the performances played, although commis- sion was deducted for the whole engage- ment. Both instances occurred in Atlanta. The defense attempted to show the Court that the Lykens & Levy claim was a direct departure from theatrical custom, the usual course being for an agent to re- linquish commission claim where an act was cancelled through illness, as in the case under consideration, The Mortons having been prevented from working by the illness of Sam Morton, and the can- cellation following their failure to go on Tuesday matinee, although the act re- ported sick by telephone. Harry Mount- ford of the Rats took the stand at this point to offer expert evidence as to the accepted procedure in such instances. Mr. Morton stated it had been and still was his intention to bring a suit against the Keith-Proctor firm to recover salary for the cancelled week. The Court de- clared that this was his right, but ruled that the agents having completed their part of the transaction had no concern with this threatened suit. Gus Dreyer appeared for Lykens & Levy. MUSICAL PIECES AT OLYMPIC. ohicago, Nov. 10. About thirty choristers of "The Merry- Go-Round," which closed at the Chicago Opera House last Saturday and ends it * career this week in Grand Rapids, Mich., have been engaged by John J. Murdock for the musical comedy stock company he will establish at the Olympic Musio Hall in connection with vaudeville. This is the original policy intended for the house by Mr. Murdock. Musical pieces running forty-five minutes will be giver, following the vaudeville numbers. Several principals also have been en- gaged. So iar as known they are Stella Maurey and Catherine Palmer. Business at the Olympic has been very big since opening. The music hall is des- tined to become popular. It is the most commodious and inviting place in the city. The musical offerings will be inaug- urated in a few weeks. Adele Oswold and McKay and Cantwell have been added to the musical comedy stock. L. H. Temple, formerly stage di- rector at the Hippodrome, New York, will have charge of the producing end. Business last week at the Olympic was beyond all anticipation. The theatre was crowded at each performance. The music hall idea is destined to become popular in Chicago. The beautiful promenades and sumptuously furnished foyers of the Olympic are the talk of the town. THE ZANCI6S CANCEL. The engagement by The Zancigs over the Percy G. Williams Circuit has been canceled by the act, who gave as the rea- son for closing unsatisfactory billing. The Zancigs are "mind-readers" who have been abroad for some time. They returned, playing two weeks at the Co- lonial (ending last Saturday) before throwing up their contract. During the Zancigs' absence, New York was surfeited by "mind-readers" of several styles and types. • The Zancigs open Monday at the Ful- ton, Brooklyn, having been engaged by the Morris office. McAVOY'S "BENEFIT" FALLS DOWN. The "benefit" for Dan McAvoy which was held at the Majestic Theatre, New York, last Sunday evening had a disap- pointing finale, both for the audience and Mr. McAvoy. The preliminary announce- ments read "Mr. Lee Shubert tenders Dan McAvoy a benefit." It was 8:40 before the show started. At 0:55 an announcement was made that Mr. McAvoy regretted his inability to ap- pear and the show was over. The very large audience assembled at admission from fifty cents to two dollars gathered on the sidewalk outside, where they clamored for their money back. They were informed it would be returned on Monday. The police had to bo called before the crowd would disperse. Nearly a riot ensued. The only one of those advertised to ap- pear for Mr. McAvoy's "benefit" was Cliff Gordon, who remained on the stage as long as possible in the hope some other professionals would arrive, several ama- teurs having filled in up to that time. It has been said during the week that the probable cause of the talent not ap- pearing was the impression abroad that McAvoy is worth between $60,000 and $75,000. The need of a "benefit" for him did not appeal to the artists. Several other reasons are advanced by artists for their non-appearance. Among those advertised in the news- papers to appear were Sam Bernard, Mag- gie Cline, George Fuller Golden, Cliff Gor- don, Lizzie B. Raymond, Marshall P. Wil- der, Harry Tighe, McMahon's "Water- melon Girls," Walter C. Kelly, Empire City Quartet and Dorothy Morton, be- sides others. It was agreed that had the acts played as billed Mr. McAvoy would have presented a good show. MOVING PICTURES AT STAR. Affairs are very much confused at W. T. Keough's Star Theatre, 107th Street and Lexington Avenue, New York. The company of "Yiddish" actors which has been giving dramatic shows is still in possession, but a dispossess suit has been brought and they will be evicted as soon as possible. The firm which runs the attractions deposited $15,000 to se- cure the rent of the place, but on Novem- ber 1 the payment was not forthcoming and suit was started by the owner of the property to have the occupants put out. It is understood that William Fox has entered into an arrangement with Mr. Keough to take the Star over for a mov- ing picture show place when the present occupants retire or are forced out. POPULARITY CONTEST ON. New Haven, Conn., Nov. 10. A popularity contest has been started at Poli's this week between Lucy Weston, the English singing comedienne, and Irene Franklin, the American champion, both on the same bill. No announcement has been made as to the nature of the prize to the winner. It is supposed to be another week on the Poli Circuit. AMERICAN ARTISTS AT CIRCUS CARRE. A gro.ip picture of EMK1180N ami BALDWIN, THE KRATONS, ALEXANDER and 8COTT and ALSACE and LORAINB, who were upon one bill at tli» CIRCUS CARRE, AMSTERDAM (Holland), during October. Henry Clay Blaney and his wife, Kitty Wolfe Blnnoy, will rrsuiiie their vaude- ville tour Nov. :?0 at Proctor's, Newark. They arc .stopping .it tlic Hotel Astor, New York, phvsit inis huving ordered Mrs. Blaney to t;t'..' ;i hi iff irat following their western cn^t^i'iiicnts.