Variety (January 1922)

Friday, January 6, 1982 VAUDEVILLE AVON COMEDY 4 INJUNCTION GRANTED TO THE SHUBERTS Federal Court Upholds Contract with Smith and Q a ]e—Act Now on Keith Time—Judge Hand's Opinion \ • MERLIN AID FOR TOMATO Con's Great Good Luck—Pa- pers Pan Protege After considering the matter for about two months. Judge Augustus Hand of the Southern District Federal Court handed down a deci- sion Tuesday In the Injunction suit of the Winter Garden Co. agalnBt Joe Smith and Charles Dale, con- cluding a lengthy opinion with the Xtement: "I have no hesitation in find- ng that the skill and personal- ty of the defendants had made e success of Avon Comedy our and placed them in the class of unique players. The covenant to bill them In their own names was an independent covenant which did not go to the whole consideration. It was. In any event, substantially per- formed and defendants were not entitled to rescind, but were obliged to assert any right they might have in an action at law for damages. "Under the circumstances, the complainant is entitled to an Injunction restraining defend- ants from performing for others in derogation of their contract of April SO." The defendants walked out of the Winter Garden, New York, which opened with Shubert vaudeville. Sept. 26 last on tho ground the newspaper billing and advertising of the Avon Comedy Four were in violation of their agreement not to be billed under the quartet monjca, but under their Individual names as a team. Immediately thereafter 8nith and Dale played for Keith aad have completed about 14 weeks for the Keith circuit. Referring to that. Judge Hand opines: "The defendants' real position and the comparative unimpor- tance to them of the clause for billing in their own names is shown by their immediate en- gagement with Keith to play as members of Avon Comedy Four. How little an effect a few mis- takes in advertising during a period of less than a week could have on a contract lasting from two to three years requires no discussion." Smith and Dale had been working for the Shuberts from 1918 to 1921, and on April 30, 1921, their contract was renewed, calling for $900 salary [ the first year with a minimum guar- l antee of 30 weeks and renewals for \ two more years at $1,000 and $1,100 f Jointly, the Shuberts to pay the sal- \ aries of any other artists supporting the defendants. One provision was 1 that they be billed under their own names, and when billboard and newspaper advertisements employed the old quartet billing of Avon Comedy Four they considered it a contract breach. However, the Judge opined that the Shubert office did its best to change the billing in a couple of days, stating "the only wonder is that so many changes were accomplished by the complain- ant in so short a time." Jules Kendler of Kendler & Goldstein, who acted for Smith and Dale, states he will appeal from the decision, among other thines. to disprove Judge Hand's opinion about the defendants being "unique" on the theory that they are replac- able as was proved by the Shuberts last summer when they substituted the Klein Brothers in the "Belle of New York" for the present litigants, •'udge Edward E. McCall was of counsel for the defense, represent- «ng the Keith interests. William Klein and Charles II. Tuttlc acted f or tho Suuberts. Jud^e Hand's opinion also con- tains an excerpt that may bean on future litigations of this type whereby ho maintains that a con- tract should not ho too literally in- terpreted when no tangible damage is don.v. The court said: 'Kow law is not a men.' game, the rules of which are made to surprise or confound the participants, but its rules are aimed at working out Justice in a world where perfection and id^al adjustment is rarely pos- sible. If a promise in a contract has »een substantially performed and no ippreciuble damage can result from 1 s'lght faihjre of performance, a i rlflinj; lappe even in limine cannot justify rescission. All the more is this, the case when the failure re- lates not to the main consideration, but to a collateral promise. Human affairs Co not run so smoothly, and business engagements are not so perfectly adjusted that any other doctrine would be practicable or even tolerable. In this case the de- fendants did not elect to rescind' even if they had had the right to do so, when they first discovered -the wrong advertising. They insisted that the complainant sh -Id correct it. The complainant proceeded in good faith and with great diligence to change the advertising and com- pleted the most important change which was in the newspapers in tlm? to have the full Sunday adver- tising in the exact form called for by the contract. It woul 1 be quite unreasonable to hold that the diffi- culty, it not imposcibility of chang- ing all the bill posters in such a short time as that intervening be- tween September 22 and September 26, would furnish a ground for re- scission." UCAGO AGENTS BARRED. FOR ATTACHING TOUR OF US" .Syracuse. Jan. 2. Dear Chick: You remember Merlin the magi- cian? Well, he's back here with me and behavln* himself. He aired that Jane who vamped him and Is goin* to stick around here with me and help me steer Tomato to the lightweight championship. After Tomato and me gummed up his act that time the booking men give film the needles. As soon as the moll skipped a coup la meals she took a runout powder with a guy who had a route and left egg in the bag as flat as a Victrola record. He wired me the sai news and I rushed him a ducket to this burg, for. after all, he ain't a bad mug and any of the best of them is liable to fall for a skirt. I have been layin* off the brass knuckles since he blew for he was clever at makin' the switch and I was afraid of takin* a chance. The local papers got pannln' To- mato because he wasn't knockin* them bow-legged any more and be- gan hintin* that he had lost his sock. The firsl night Merlin ar- rived here he got In just in time to Commission Foundation for Boston Attachment—No Notice Given Managers 9 Association Cause of Sus- pension—Act Paid One Agent Smith and Dale are out of town to hit them If he has to sneak up on them in the dressln* room. I am 'dickorin' now with a bur- lesque show that wants us to join them and let the kid mee' all com- ers. We have to guarantee to stop any opponent tr forfeit five hun- dred berries. Merlin wants me to grab it, for he can do his egg in the bag stuff in addition to -* 3ln* that the t. n. t. is in the battler's right glove. I Imagine we oulM to clean up, for them local tramps never look at bandages or anythin* and would never thing of lookln* inside a brand i.ew boxln' glove. The only th.ng I'm afraid of Is that Tomato will cop some weak- jawed sap some night and croak Mm. If they ever prov d that we re usin' tho armor plate we would all land In stir and they'd throw j the key away. But it's great while it lasts and we are cleanin* up plenty of soap Chicago, Jan. 4. The Schallman Brothers, vaude- ville agents, have been barred from booking in all agencies affiliated with the Vaudeville Managers' Pro- tective Association. The barring came through the Schallmans turn* ing their claim for $600 commission against the "Four of Us," a vaude- villo act (male quartet), over to a local lawyer, who attached the turn In Boston without the Managers' As- sociation having been notified. The Schallmans booked the act with Arthur Horwitx of New 7'ork, each agent to receive B per cent, commission, allowable . der the IN llnols agency law. Horwlts is said to have collected his 6, but the Schallmans failed to receive theirs. The Schallmans' suspension fol- 1 >wed the attachment. They former- ly booked with Loew and Pantages. slip the knucks in, for Tomato was I bettin* on the knockouts. I have boxin* a husky from Albany who to let a guy stay onco in a while had never been stopped. I so the gilyagos wont get hep and This bird was so tough that he start investigate'. atnresentfuinilincKeith bookings u » ed to let steam rollers bump into I'll write and let you know if we singer, died In St. Antolne hospital. Whether they will prefer ta remain ' h* 8 stomach Just to harden up his Join out the burlesque troupe^ | Paris, after a long and painful 111- Baraban and Qrehs have Joined "Tickle Me," playing in St. Louts, replacing Grant and Wing. The latter couple are going with "The Blue Kitten." Ferrey, a French cafe concert idle for the remainder of their Shu- bert contract, or switch back to the Shubert circuit is now idle con- jecture along the Rlalto. Vaudeville people and agents on Wednesday were unanimous that the Keith's billing of Smith and Dale as the Avon Comedy Four, aft- er they had objected to such billing under the Shubert management, was an unwise technical move. Smith and Dale went on the Keith time as the Avon Comedy Four after leaving the Shuberts for $1,000 weekly, it is said. Lately they replaced the two new members of the quartet ith its former mem- bers, Eddie Miller and Mr. Cor- bett. and. It is said, the turn is now- receiving $1,400 a week. Mr. Ronchetti, a former Shubert manager, last at the Astor, New York, is now resident manager of Fox's City, New York. Msnnie Barkin of the Amalga- mated Agency resigned Jan. 1 to become associated with Wirth, Blu- menfeld & Co. Just to harden up abdominal muscles, accord in' to his manager. Tomato copped him on the button in the first round with the knucks and mister tough guy done the funniest lookin* dance standin' up that you ever saw. Tomato let him jig around for a few seconds and then smashed him again. They were still workin* over him when we got paid off so we had to wait around about 20 minutes to see if we were goin' to have a mur- i der charge hangln' over us or not. So you see Merlin is sure our odds and as long as he behaves he can have a piece of my hitter. I figure If they don't get .ake to the knucks for a coupla more months .Tomato will have a record of kay ohs that will look like the box office reports from the battle of Chateau - Thierry. Can you imagine what would happen at Madison Square Garden if we could get Leonard into the ring and then slip Tomato the brass knuckles? I told Merlin about this and he says that to knock them out you first have to hit them. However, I'll have the works down on my kid if he ever gets one of them New York lightweights In that Garden ring. He'll get close enough Your old pal. Con. I ness. OBITUARY (Continued from page 6) ment between his brother. Chan- nlng, and the deceased had been to the effect the survivor would de- liver the oraticn at the services. His brother being seriously 111 and held at home by his physician, caused him to substitute, said John, who then spoke a short eulogy on Mount, with a brother, was reputed to have put over ftfO.OOO into the Bronx property. They came into a fortune at the death of an aunt. Business worries connected with the starting of the venture contributed to his illness more than a year ago. He had gone to a sanatorium for treatment, but nervous trouble de- veloped later. Until his Illness he the deceased. The remains were wa8 tho act | Ye manager of the en- taken to Ithaca, N. Y., for interment. | terprise Mr. Wolf was twice married. His first wife was Hope Booth; second, Harriet Raymond. his NEWS OF HIE DAILIES Edith St. Clair, a prominent show girl, 20 years old, died at the State Hospital in Central Islip, Long Isl- and, Dec. 31. Miss St. Clair died destitute of funds due to being a cripple through an accidental fall which resulted in both he knee caps being broken. The funeral services were held under the auspices of the Actor's Fund. Two shows are playing the Man- hattan Opera House this week, one in:iii£ "In Old Kentucky," with :. re- vival of "Snow White and the Seven Dwarfs" taking place in the morn- ing for children. Carl Hunt has joined the Pro- ducing Managers' Association, and states that rehearsals are under way for his dishing-Kriml musical piece, "Bibi of the Boulevards." The Kvening Journal is to become a five-cent evening paper for Satur- day night of each week, beginning with Jan. 21. The publication will take on the aspect of the usual Sunday morning paper and carry a supplement of comics in colors, with the other magazine features usual with a Sunday paper. It is stated that W. H. Hearst is con- templating the issuance of a daily pictorial paper to combat the Daily News. The Gaiety and Fulton, along with a six-story building at -'.fitli f.treet am' Broadway, have been taken over by the Clevehanna Bealt\ Corporation, o' which A. I.. Hrlanger, I.. Bergman and J. P. BickerLoti arc directors. The com- pany is capitalized at $7&0,000. The theatres were acquired by Hrlanger last June. In November the Mutual Life made a loan of $1,150,000 on the property. "" There is also a prior mortgage of $450,000. The right of the New York Com- missioner of Licenses to revoke the license of a theatre was upheld by Justice Robert L. Wagner in the Supreme Court, Tuesday, when he denied application by A. H. Woods for an ii.Junction to restrain the commissioner, John F. Gilchrist, from calling in the license of the Bltlnge theatre, where the "Demi- Virgin" is playing. The regular WILLIAM DOCKSTADER William Dockstader, widely known throughout the show bush, ss and especially in the vaudeville field as the proprietor and manager of Dockstader's theatre, Wilmington. Del., for over 25 years." died Dec. 26 from a complication of diseases. Mr. Dockstader was about 70 years old. His name In private life was Wil- liam Lee, his family being related to the famous Robert E. Lee family of Virginia. Ho started In the the- atrical business n an actor as a young man, doing a double black face specialty with Charlie Dock- stader. Later he did a single turn for several years, playing the vari- ety theatres of the eighties and nineties. He was also a member of tho leading minstrel organizations from time to time, playing with Haverly's, Simmons and Slocum's and similar troupes. About 25 years ago he took a small house in Wilmington and in- stalled a continuous vaudeville pol- icy, that type of entertainment starting to become popular at that time. Ten years later the house, now known as tho Cnrrlck, was built for Mr. Dockstader and he later acquired it, operating It until a couple of months ago as Dock- stader's, when he sold' it to a local syndicate and retired. Mr. Dockstader will be remem ARTHUR JAMES Arthur James, a member of the "For Pity's Sake" company, the book of which': . was credited with writing, died New Year's Eve at Misericordla Hospital, New York. following an operation for appendi- citis. His condition was excellent 48 hours after the operation, but death resulted from heart failure, from which he suffered since a child. Dr. Amy performed the operation.' NETTIE VON BEIG Nettie Von Beig died In Provi- dence, R. I., Friday. Dec. 23. She ap- peared in burlesque many years aso. Burial was at Putnam, Conn. WILLIAM KEOUQH William Kcough. aged 62, for- merly Milloy and Keough, died at Dorchester, Mas:*, Dec. 19. performance of the play was given —-. ^ ... na ,„_., Tuesday, as no certified word had ^ered by many of the new as well reached Gilchrist regarding Justice ™ the older generation of vaudc The father of Saul Abrahams, who Is mmager of the "Greenwich Vil- lage Follies," died, Dec. 31, at his home in New York City at the age of 65 years. The manager's mother died in April of Irjt j'ear. Wagner's decision on the case. Max D. Steuer, counsel for Woods, stated he would move for a rehear- ing, and if necessary would carry the case to the Appellate Division. According to Augustus Thomas, at the* conclusion of the tour of "Declassee" Kthel Barrymorc will appear In the role of Rosalind in the Shakespearean comedy, "As Yon Like It." villc artists as a kindly, agreeable man, always disposed to give bud- ding talent an opportunity to break Me was an El.; and a Mason. A widow survives. John Kendrick Bangs, author and playwright, suffered a relapse .Mon- day and was reported to be in an extremely critical condition by the attending physicians. He was oper- ated upon Sunday for acute in- testinal trouble. In another effort to have the de- enr of divorce b-ued to Mary Piek- ford against Owen Moore set aside AMonoy General Ii. B. Fowler of .Wv.id.i declared, in a closing brief liled in the Supreme Court, that -Tin SIR JOHN HARE Sir John Hare, the veteran Brit- i h actor, died Dec. 28, aged 77. He had been oil years on the fctage, associating himself mostly with Pinero plays, in which he was suc- cessful. His best known part in America was Lord Quex in Pinero's play. Lady Hare and his daughter are al- o HI of the Influenza, which took him off. His last appearance was in "A Pair of Spectacles" at U'yndham's in 1917. HENRY MOUNT Henry Mount, one of the principal promoters of Starlight park in the divorce was the worst of its Bronx, died in New York fast week (Continue. 1 on /ig' 82) following on operation oiy his head. Oil/ Fred Howarth, managing dc Cour- villc's "Hello Canada," and formerly house manager of His Majesty's. Montreal, died in Victoria, B. C, Dec. 24. He was 56 years old, and had been 33 years in the'show busi- ness. Charles McGeschey died Dec. 24 at his home in New York City. He was 62 years old, and had acted as company manager for Ethel Barry- more and Maude Adams. Mrs. F. C. Overton, former bus!* ness associate of W. S. Hutterfleld. died at her residence In Keokuk, la., Dec. 26. Johnny Scofield, popular musical comedy pantomime comedian, died last week in London, aged 65. Hans Huber, Swiss composer, died In Lucarno, aged 70. He was formerly director of the Bale con- servatory. The father of L. Tiusman (Claire and At wood) died Jan. 1 at WiU- lamspoi t, Pa.