Greenwall Theatrical Circuit Co. v. Markowitz

• Decision Date: 11 April 1904
• Citation: 79 S.W. 1069
• Parties: GREENWALL THEATRICAL CIRCUIT CO. v. MARKOWITZ.
• Court: Texas Supreme Court

79 S.W. 1069

GREENWALL THEATRICAL CIRCUIT CO. v. MARKOWITZ.

Supreme Court of Texas.

April 11, 1904.

Error to Court of Civil Appeals of First Supreme Judicial District.

Action by E. Markowitz against the Greenwall Theatrical Circuit Company. Judgment of the Court of Civil Appeals (75 S. W. 74) reversing on plaintiff's appeal a judgment granting insufficient relief, and defendant brings error. Judgment of the Court of Civil Appeals reversed, and judgment below affirmed.

Kleberg & Neethe, for plaintiff in error. Jas. B. & Chas. J. Stubbs, for defendant in error.

WILLIAMS, J.

This action was brought by Markowitz against the Greenwall Theatrical Circuit Company on the 23d day of January, 1902, to recover damages for breach of a written contract attached to the petition. This contract was executed between the parties July 16, 1901, and by it defendant, in consideration of the payment of $3,000 in cash (called "bonus"), agreed to give to plaintiff the position of business manager of the Kyle Opera House in Beaumont during the term of defendant's lease thereof from its owner, Kyle, for five years, to begin October 1, 1901, and to pay plaintiff for his services $20 per week during the theatrical season and one-half of the net profits, payable at the end of each theatrical season, about May 1st each year. But defendant reserved the right, if it should "feel that the interests of all concerned are not thoroughly taken care of," to remove plaintiff from the position of business manager, and replace him by another, in which event plaintiff should receive only the half of the net profits. The losses of the business were to be borne equally by the parties. Plaintiff bound himself to act as business manager, and give the business his personal attention in the best possible manner, and, in addition to the $3,000 bonus, agreed to pay on the 1st day of October each year $1,000, the half of the yearly rent of the opera house; and the contract expressly stipulated that his failure to meet this payment when due "makes this contract null and void." The petition, after stating the terms of the contract, contained the following allegations and prayer: "That said defendant, although plaintiff has in all things kept and performed the obligations of his said contract, a substantial copy of which, marked `A,' is hereto annexed, and made a part hereof as fully as if incorporated herein regardless of its obligations, violated and repudiated said contract on or about September 10, 1901, and refused to carry it out in any particular; wherefore and whereby a cause of action accrued to this plaintiff to recover damages for the breach of said agreement by defendant. Plaintiff also shows that defendant, without the knowledge or consent of plaintiff, and in disregard of his rights, sold and disposed of the lease of said opera house and other rights and assets, for the sum of $15,000, which said lease was by defendant or its representative transferred to W. W. Kyle, at Beaumont, Texas, in or about the month of November, 1901. Plaintiff shows that said lease and the business of said opera house are, and would in all probability continue to be, profitable during the full period of said lease, and would be worth the sum of not less than $15,000 per year net, to which plaintiff, by virtue of said contract, was or would be entitled to one-half, and, under any circumstances, would be entitled to one-half of the value of said lease, which value he alleges to be not less than $30,000. Premises considered, plaintiff sues and prays due process to defendant, and, upon hearing, judgment for his said damages, present and prospective, but, in the alternative, for one-half the value of said lease, and for interest, costs of suit, and general relief."

The evidence shows the following state of facts: In lieu of the cash payment required by the contract the note of plaintiff for the amount, indorsed by I. H. Kempner, was accepted by defendant. At the time of the execution of this contract defendant held the agreement of W. W. Kyle to build the opera house, and to lease it to defendant for five years, beginning October 1, 1901, at a rental of $2,000 per annum. Shortly after the contract between plaintiff and defendant was concluded, Kyle raised objection to the proposed connection of plaintiff with the theater, and conversations and correspondence ensued between plaintiff, defendant, and Kempner concerning an adjustment. Finally, on September 10, 1901, Greenwall, the president of defendant company, asserted to plaintiff that the contract was invalid; that plaintiff had no contract; and, upon the latter insisting upon the validity of the agreement, declared to him that, if he insisted upon the contract, he had a lawsuit. After this Kempner, under the impression that the contract was at an end by mutual consent, without plaintiff's knowledge, demanded of defendant the return of the note for $3,000, and it was returned to him. Plaintiff continued to insist upon the observance of the contract and his rights under it, and, upon learning of the return of the note, protested against it. Kempner thereupon explained to defendant the error under which he had acted, and offered to return the note, but the latter continued to ignore the contract with plaintiff, and to treat it as ended. Plaintiff, while insisting, as we understand his attitude, and as it is defined by the Court of Civil Appeals, upon the maintenance of the contract, did not pay or offer to pay the $1,000 due on the 1st day of October. He was able and willing to do so, but did not signify this to the defendant before or at the...