Variety (Jan 1929)

Wednesday, January 9, 1929 LE GIT I MATE VARIETY 57 SHDBERTS AND LAWYER SCORED IN HOUSE CASE REVERSAL WITH DAMAGES NOW SET AT Harry Koerers, the Chicago a^rent, figures that his damage claim ftgalnat the Shuberts is liOO.OOO «ind against Billy House, the fat funster 0f the Shubert musical, "Luclcee Girl," worth $50,000. . That is the basis of cornputa,ti6n for a proposed siettlement by Rogers with the Shuberts as thie result of the smashing legal victpry accorded him with an unanimous opinion of reversal granting Rogers an in- junctive writ.. ; The Shuberts are reported essay- ing to effect as gracious a nottle- ment as possible, with a: reported bid of $(55,000. which has beori re- jected by O'Brien, Malovlnsliy & DriscoU and . Lyman Heif3S, joint counsel for'the Harry Rogers The- atrica:! Enterpriaes, Inc. Reason,for refusal is insufficiency a:nd also because oC the systeni of paying off in part oa.sh and part Instal- ments, Justice Edw4ird R. 'Finch, next in seniority to Presiding Justice Vic- tor J. fowling of the Appellate Di- vision ' of the New, York Supremo Court, wrote ah yhrclenting opinion In which the Sjhuberts were mark- edly revcryred on every point they presented to disprove Rogers' legal contractual claim on the sorvLeep of Billy House. (House is siiod as William H. Comstook as i.'J his name In private life; .With him as the formal co-defendants are Shubert Theatrical Corp. and J. J. Shubert). The irony of the reversal, i.s that the Shuberts were boomeranged by the two very opinions o£ prece- dence by which they were auccess- ful in enjoining the Rath Brothers and later in their injunction suit ag;ainst Gallagher and Shean. . Both were on the question of "unique and extraordinary" sei-viccs and Value, as perforniers. New Face, just as important as wci-e these, two well known decisions in the- atrical lawi is the establishment now, in Justice Finch's opinion, of the slant that a "new face" In the show business rates as. being unique and extraordinary. . Counsel for Rogers, in arguing that House was an exceptional comic, did not proceed . on the premise that House was not ir- replaceable, but that in view of the docllne of the show . business, the staleness of ita performers, etc., a new face or a new style of com- edian., commands equal distinction. Justice Louis A. Valonte in or- iginally deciding for Shuberts in the lower court, opined that it would work irreparable damage to the producers if Rogers were granted an injunctive writ and the come- dian yanked out of the "Luckee Girl" show. . Justice Valente took the position that this would give Rogers the trame relief he would be entitled to ultimately if, after trial of the issues, he obtained a dcci- "sIonr""7" ' Shuberts now v/ant House not only for "Luckee Girl," but also .under contract. They raised his salary to $1,000 a week from the graduating $350 to $650 a week Houne would have received ulti- mately under Rpger's spo:nsorship. Rogers contends he has offers for $1,500 a week for the. comedian^ whom he had under exclusive man- agement for five years since 1923, and who was to have been bound to him untiri931, had -not the Shu- berts* enticed him away from the plaintiff. . . Rogers estimated that ho. netted $600 a week for himself whenever the House flash act in vaudeville Worked and that in five years the act's period of lay-off was almo.st negligible. Shuberts' chief concern is the palpable breach of contract, ^thCQii^i^^yid^uy^n^^ contract player to violateITwritten bbvi^ Rogers sot forth that it cost him a 35-wcek Koith-Orpheum route among other things. The strength of the opinion and the unanimity of the ultimate de cision forestalls further appeal un less under special leave from the bighest tribunal. Furthermore, the afllrmance of all Issuea points to what Is technically known as a >^ ad judicata decision; the in- evitable ainrniaju'e of the relief, prayed for in tlie papers. y-'.' Scoris Klein In his opinion. Justice Finch takes 'each point In ,!5equenoe and scathingly scores Wiiliam Klein's attempt to disprove the exi.^^tonce: of a written contract with the state- ment that "the record sliows tliat the existence of the written contract is clear and the attempt to raise an issue as to; its existence, %yell.nlgh ludicrous." Concluding, a lengthy di.scus.sioni Justice Finch states "we have the uncontroverted fact that the ability of Comstook (House) is rf'garded as unique upon the Albee-Keith circuit and that a substitute will, hot be accepted. Hence in this well known vaudeville office Comstook cannot bie, replaced. Again, Comstbck is now admittedly receiving a salary of $1,000 a week, which, in his work. Is very large and compares most fa- vorably with that received by the leaders in the scientific, artistic .and political world. In Winter Garden Co. v. Smith! where two plaintiffs were to receive a joint salary of $1,100 a week, the Ci''cuit Court of Appeals of the Second Court .sa^id; "When, therefore, actor:?, such as these have been successful for-liiany years: because of individual chiirac- teristics and command salaries of a size rarely known In the liberal arts and sciences, thbir peouliar ability in the field in whlcli they perform is almost res ipt^a loquitoi'.*' "It seems, unnecessary to go./fur- ther witii a recital of facts when the defendant. Shubert, who knew Corn- stock was under a contract.with the plaintiff, was willing to risk a law suit and pay $1,000 a week to secure the services of Comstook. "The con- clusloh Is therefore sustained that defendant Comstock has that, pei-- sdnality which denotes the. unusual and unique artist and enables him to pick up the attention of ah audi- ence and hold It interested, amused or in pathos until relea.sed. . "Whei-e, therefore; the services of the actor are shown to^ bo unusual, unlqu'e or extraordinaTy and that the damage to the plaintiff will be irreparable and unasoertainable. the latter may enjoin the performer from appearing elsewiiere during the period of his contract and, even thougli a negative covenant not to appear el.sewhore may be lacking, such will be implied and enforced not only against those who are parties to the contract,, but also restraining third parties from doing those acts which induce and con- tinue the breach. ■ "It is obvious that a Court of Equity is.governed by principles of law impartially applied to the facts in the particular ca.se and that the facts, when accurately and truth- fully ascertained, are alike masters of bench and bar. If the time shall ever come when a Court of,Equity must stand helplessly by while unique and unusual theatrical per- formers may be induced to breach contracts with Impunity, except for such damages i,as a jury may see fit tb'awai-d at some dlistant date, ther atrical corporations will find their business hampered by intolerable conditions, "It follows that the order ap- pealed, from should be reversed with $10. costs and disbursements,. and the motion gra.nted with. $10 costs." NELL KELLY Miss Kelly la now featured with the Messrs. Shubert's "Boom Boom" in Pliiladelphia. The Journal: said, "Nell Kelly sang and danced and for. the first time in many moons tlio Shubei-t Theatre .reverberated to .the ripLous ,clamor of .cheers, whistles and .stampinjg" of feet from both prchestra and gallery, Nell Kelly i.s a star show stopper," Direction RALPH G. FARNUM 1560 BROADWAY 25c Miss/River Drdiiia At $3 Top on Broadway JPrama of the "stop, you cur," "pay tile rent or out you go" and "I have sold everything but my honor" type;, open.s on Broad way Jan, 21 when Norman F. Thorn and his Prlnce-ss shoW boat players be- gin a four week season of repertoire at. the iJelmonl. Jan, 21, with . "The rarson's Bride" or "The Miniistcr and .the Maid." 'rhe i'ep iS: being underwritten by Universal (films) as an advance ballyhoo for that firm's screen vor^ sion of "Show Boat," due on Broad- way shortly.. Tlie thi-ec dramas listed to follow" "Par.son's Bride" or "Shadow of the Rockies," "Tenderfoot" and "My Jim o'r the Stroke of Ten.'- Norman F, Thorn, who describes himself as "the John Drew of the River" who gives you "your money's worth or your money back," claims that the "plays without a single blush or an oi"i;e:ndlng remark" will be , iJresented . at the Bielmon.t precisely as he and his cpmpahy present them .Aboard his floating theatre which makies thie towns along the Ohio", Kentucky . and Mississippi rivers where the pealsants pay 25c to get a load of backwoods standards of the drama. Thorn and his wife play the leading roles. On Broadway, Harry Reichenbach, who is handling the exploitatlo'n for the repertory company and the Uni- versal picture that Is to follow, ex- pects to get $5 top for the premiere and $3 thereafter for the blood and thunder stulTC. ... An olio of specialties between the acts win eliminate Intermissions along with a calliope overture and a band concert outside the theatre every evening to draw the attentlo'n of the Broadway yokelry to West 48th street. Geo. Squared in Prov. Providence, Jan'. 8. -George M. Cohan, former Fox Point boy, and Providence in gen- eral, have kiased and made up and now all ia to the merry merry, (johan came In town New Year's Eve.to see the opening here of his play, "Vermont." He wag called to the stage of the Providence Opera House and given a big hand. George said simply: "Cloe, it's great to be home!" Equity Ball on Coast Los Angcile.s, Jan. 8. Equity will try Its hand at holding a ball on the coast. It is the first endeavor and will take place Jan. 31 at the Blltmore Hotel. Margaret Smith has been sent on from the Equity Headquarters In New York to tak« f'har.cre nf tho^ forthcoming "vor.+. Shuberts Would Like Fib Men to Take Over Some Skbsrt Theatres Stock Mgrs.'Ass'n Bust Expected—Smith Resigns Lester Al Smith, has resigned the presidency of Theatrical Sstock Managers' Assbclatlpn. Smith's withdrawal Is the expected pre- liminary to the bust of the stock men's oVganlzatlon. The western division Is due to meet In Chicago next weelo Mean- while the president's chair will re- main vacant until after that meet- ing or longer. Date of Dieath One of the fi'\v humorous adverti.semonts in Variety's Anniversary Number last week was that contributed. by George S. Kaufman, dramatic editor of the New Yoi»lf '"Times" and . also a play- wright of distinction (for hits). The Kaufman ad .said: "Theatrical Season of '28-'29 Died Sept. 5, 1928." Ashton Stevens Talks of Variety's 23rd Ashton Slovens; the. koi^n dean of tlie Chicago dran)atic reviewers, noticed . Variely'.y 23rd Anniversary Number in his. . papor,"lierald- ■Kxaminor," in this way : ByASHTONSTEVENS 117ELL, well, well! Here is Variety a day ahead of time and bulk- ing alniost 200 pages! It Is the twenty-third anniversary , nurnber and easy to read because most of the matter is. set up as display ad- vertising. But very personal, not to .say private, are some of these full and half-page testimonials of good will to the saltiest of the na- tion's theatrical ahoets arid Its read- ers, many of whom are soniewhat salty, too. ■ ■ • • DAGE 49 is. virginal white but for four lines of small type that read: HONEVMOONINa WAIKIKI DEACII, HONOLULU SISASON'.S aRKETINGS AL JOLSON . Below "Obituary," "Letters" and "Burlesque Routes" is a black-bor- dered half page containing the fol- lowing: "In Memory of! AVERY HOP- WOOD, T>ied. July 1, 1028. Juan Les Pins, France. MOTHER." iJEiVRICI'S, on. Randolph, extends greetings to the i>rofesslon With- out editorial comment on surpass- ing coffee or the absence of orches- tral din. The Sisters DUncan .(yes, "Sisters Duncan," If you please!) wish iis all a Jolly New Year from overseas, and subscribe themselves "Toopsle and Evah.'f Sir Harry Lauder spaciously smiles In a page portrait, in the captions of which he thriftily makes It known that his first audible picture Is "Auld Lang Syne," Mr. Erlanger informs us that he la "the largest Individual theatre owner in the world." The Messrs. Shubert are, as ever, silent in Variety. ■ ♦ • • «nrwENTY-THREE years ago," said an editorial, "the show business to Variety looked to be one desk, two typewi-Itera, three chairs and the sheriff." And now look at ih^ 'dTa™,^d thing! -. - v - - "Variety's sloppy way of writing and' printing. Is likely a laugh to those who know," says another of its ch.aracteristic penmen in this roomy is.'me, ''but no way has been discovered to rcctjfy Its faults. So this paper conjLinues as the, same terrible exhibit of newspaper work it always has been." JL|iEANINfi that Variety continues both a» a debasement Jind a de- bunkment of English grammar and as th6 high condiment of theatrical journalism. Splcc i.s the life of Va- riety, and long may it smart! Helen Ware Coming Back Los Angeles, Jan. 8. Helen Ware, from the stage, coming woat six months dgo to ap- pear ln-li^x=^^dlalQg^RictUi:«*_j:etu_rn|^ to New York next week. Contract not renewed. 2 BOAD CLOSINGS The Gcorgo Tyler production of "Beau Striitagem" closed Saturday In Pittsburgh- The same day In Philadelphia Mrs. Fi''l<:e stopped with "^uch Ado .Mout Nothing." ' Kfoiji vi'ports ■ the Phubrrt.-? would like, a- pltituro chain to take over. some of their theatres. Iio\v many isn't niimod, but the Shuberts may not. have set a limit.: Two: of tiie pi^pspects the Shu- berts are enthused over on the niat-r ter are said to -be. the Warner Brothers and Radio-Kelth-Orpheum. The latter is the Radio Corporation of Ainerica's th<>atre division, J.W. Sellgman and Company are the Shuberts' bankers. That banking house is also reported not averse to the Shuberts getting rid , of some of their many legit theatres, in New York City and elsewhere. With the outcry iagainstf poor business in the legit houses and the publicity given to it by the newspapers, even a banker and even a Shubert cannot look at the condition with a smile. ^ The Shuberts have had some pre- liminary talks with the Warners About all the Warners.appeared In- terested In were Shubert plays. Now the Shuberts prefer to talk theati-es. With what success their efforts! to unload on tho flliri men' rifiet Is also unreported. Liniited Capacities . . R-K-.O has a lot of theatres of its own and has.been selling sever- al Of late. The Warners have some besides the Stanley chain. They do not appear wildly anxious to annex detached houses from the legit with their limited capacities. The Shuberts possibly may bo of the opinion that • by wiring legit houses in New York, Chicago, and elsewhere; the Warners or R-K-O will fall for the opportunity of plac- ing talking pictures In wired legit Jiouses for exploitation or bccauso the picture producers believe they have a road show film. Few picture men believe there- will be many road show pictures for a long while. Meantime the Shuberts are in the midst of the legit theatre situation, with many a he.idache said to be rampant, up and downtown. . JESSIE BROWN SINGLE Losee Eloping Husband by Divorce . Route in Cleveland Clevrland, Jan. 8. """Jei.sToTJFoWn'Snnrp lT^O^i;)^ n n ell-h local divorce courts has won the right to call herself simply Jossle Brown. The former "Follif-s" girl had brought suit against hr-r hus band, Joseph P. O'Donnell, ut, son of a wealthy Cfr-velanrl r<-'al f state man, O'Donncll did not appear In court to contest the divorce action. • Miss Brown-Sfrii pie, 23, elopcil with O'Donnell. Equity Advances Juniors To Seniors at $15 More Several hundred Juniors at Equity have graduated Into the senior, class of the organization, having matured their apprenticeship last week. Those awarded senior membership wore those who were novices or fro'ni stock of tent show divisions who had served three years In the Junior classification" of Equity. The boost provides a $15 yearly Increase In dues for the grads, many of whom were bewildered on the additlphai nick until It. we^a thoroughly explained. Under Equity, regulations novices are available to Junior membership when engaged by a pi'odticer but must serve two years in that divi- sion before becoming eligible for senior membership. The Juniors are entitled to' all benefits of the seniors but perfbrcedly are gradu-r ated to the latter division after having been In good standing with the association for two. years. Applicants for whom Equity memborsv In go'dd standing testify, have been employed In the profes- .slon two years or more previous to making application for entrance to K(|ulty are admitted as seniors. Variety's *Legit' Editorial Brings Reactions in Chi . Chicago, Jan. 8. Ralph Kettering, western, repre- flontatlvo for A, H. Woods, ad- dressed letters to Chicago drama, critics suggesting that they read the editorial in Variety's anniversary is.sue, titled,"Legit's Biggest Worry,"* and that managers and critics get together In. a co-operative effort to push legit In the right direction. Two critics so far have responded editorially. Virginia Dale of the Journal wrote her own theories on legit's worries. Ashton Steven?, Kxamlnor, replied that he didn't feel he- ha.^^to=jbln:iKk^mldfi^SJ;J4l.t<lL.K£^^ terlng, Wood.s, Erlanger and the .Shubt-rts, as he Is attending shows, ti'lllng tho truth about them, and giving an ab.'olutely fair display of good will. The V:irJety editorial dealt with, tlie .'ri>parent attitude of the press 'toward legit and sugge.s$ed the man- aL'r-r -! do .somcthlnff to regain good Iwlll.