Camp v. Baldwin-Melville Co.

• Decision Date: 15 February 1909
• Docket Number: 17,101
• Citation: Camp v. Baldwin-Melville Co., 123 La. 257, 48 So. 927 (La. 1909)
• Court: Louisiana Supreme Court
• Parties: CAMP v. BALDWIN-MELVILLE CO. et al

48 So. 927

123 La. 257

CAMP v. BALDWIN-MELVILLE CO. et al

No. 17,101

Supreme Court of Louisiana

February 15, 1909

Rehearing Denied March 29, 1909.

Appeal from Civil District Court, Parish of Orleans; Thomas C. W Ellis, Judge.

Action by Frank E. Camp against the Baldwin-Melville Company and Henry Greenwall. Judgment for plaintiff, and defendant Greenwall appeals. Affirmed.

Henry Denis and Clegg, Quintero & Gidiere, for appellant.

Lazarus Michel & Lazarus and David Sessler, for appellee.

OPINION

MONROE J.

Statement of the Case.

Plaintiff alleges that he was employed by defendants, as a dramatic artist, for the theatrical season of 1904-05, at a salary of $ 125 a week, and was discharged, without cause, before the expiration of the term for which he was employed, and he prays judgment for $ 3,625 as the balance due for the unexpired time. The Baldwin-Melville Company admits that plaintiff accepted an offer of employment, made by it, at a salary of $ 125 per week, payable weekly, and alleges that he entered upon his employment upon the terms and conditions, and with the understanding, usual in such cases, that the engagement might be terminated, by either party, upon the giving of two weeks' notice to the other; that he was given two weeks' notice "for the break in, or termination of," his engagement, and was laid off for four days, and that he acquiesced therein, and subsequently asked to be, and was, re-employed on the same terms; that, on receiving the notice of discharge of which he now complains, he obtained employment elsewhere, and has, since then, been earning a large salary in such other employment. Henry Greenwall denies that he had any contract with plaintiff; but there is an agreement in the record to the effect that any judgment that plaintiff may obtain shall be rendered against him and his codefendant in solido, without prejudice, however, to their rights inter sese.

The facts of the case appear to be as follows: Plaintiff, on June 27, 1904, at Columbus, Ohio, received from Walter S. Baldwin, then in New York, representing one or both of the defendants, a telegram reading:

"Telegraph, here, lowest salary for next season, opening about September first, possible."

To which he replied:

"One hundred and thirty-five, New Orleans."

On the next day Baldwin again telegraphed:

"One hundred and twenty-five best possible. If accepted, consider yourself engaged. Answer, here, without fail, to-night."

Plaintiff replied:

"We won't argue. Will accept, and consider myself engaged at one hundred and twenty-five. Shake."

Under the agreement thus entered into, plaintiff came to New Orleans, about September 1st, and acted with the Baldwin-Melville Company at the French Opera House (which the company was using, pending the completion of the Greenwall Theater) until October 15th -- say six weeks. About October 1st, however, notice was posted on the board in the greenroom "that the season at the French Opera House of the Baldwin-Melville Company would terminate Saturday night, October 13th [15th], and the season at the Greenwall Theater would open Thursday, October 20th" -- the object being to let the members of the company know that "for the intervening time, between the closing of the season at the French Opera House and the opening at the Greenwall, there would be no salaries paid." The notice so given was accepted, and the members of the company, including the plaintiff, acquiescing in the withholding of their salaries during the interval mentioned, took up their work at the new theater when it opened.

On October 30th plaintiff received from defendant a communication reading:

"Your engagement with the Baldwin-Melville Stock Company will terminate Saturday night, November 12, 1904. You will kindly consider this the customary two weeks' notice, obliging, yours very truly."

And within 48 hours, he took legal advice from the counsel now representing him. Referring to the "season," H. P. Meldon, defendant's stage manager, called as a witness on their behalf, testifies as follows (on cross-examination):

"Q. The season 1904-05 began in September and terminated in May? A. Yes, sir; May 27th, or about that. Q. That was the theatrical season of the Baldwin-Melville Dramatic Company; that is correct, is it not? A. Yes, sir."

On November 7th Baldwin, the manager of the company, being sick in the North, and the witness last quoted finding that he would need plaintiff's services for a while after the date fixed in the notice of October 30th for his discharge, spoke to him on the subject, and thereupon the following correspondence ensued, to wit:

"New Orleans, La., Nov. 7, 1904.

"H. P. Meldon, Esq., Stage Manager, Baldwin-Melville Co. * * * I have carefully considered your verbal request, since my peremptory discharge, without cause, was submitted to me in writing. All communications hereafter between us must be reduced to writing. I will entertain any proposition that you see fit to submit and make my reply promptly.

"Yours very truly,

"[Signed] F. E. Camp."

"New Orleans, La., Nov. 7th.

"Frank E. Camp, Esq. -- Dear Sir: Messrs. Baldwin and Greenwall would be glad if you could arrange to remain over for week Nov. 13th-19th, and play the part of Terry Denison in 'Hearts of Oak.' As my first rehearsal of the play will be held to-morrow (Tuesday) morning, may I request an immediate reply, by bearer.

"Sincerely yours,

"[Signed] H. Percy Meldon,

"Stage Director, Baldwin-Melville Stock Co."

On the same day that these letters were written, plaintiff telegraphed to Baldwin (at Buffalo):

"I ask you to reconsider. Give me a chance with better parts, and I'll convince you of my ability. Answer."

He received no answer, and on the following day he replied to the offer, or request, of the stage manager, saying (among other things):

"Considering your request, in the interest of your employers, and without prejudice to my rights, resulting from the breach of contract on the part of the Baldwin-Melville Stock Company, which, I am advised, entitles me to full compensation for the period of my engagement, I will, under the condition stated, take the part, * * * beginning Nov. 13th and closing Nov. 19th, at which date, I desire to advise you, and, through you, your employers, that I shall claim, and insist upon, the payment of my compensation for the full term of my employment, as above set forth."

And, pursuant to the agreement thus made, he remained in defendant's employ until November 19th, and left New Orleans, a day or two after that date, for his home in Ohio. It is conceded that there was no other expressed understanding in the matter of the contract sued on than as contained in the telegraphic correspondence which has been quoted, and defendants, through their counsel, disclaim having discharged plaintiff for cause; their position in the matter being that there is to be read into the contract, as evidenced by the telegrams, a custom or usage, known to theatrical managers and actors, agreeably to which either of the parties to said contract had the right to terminate the relations resulting therefrom by giving two weeks' notice to the other. Plaintiff's counsel objected to the introduction of evidence to prove the alleged custom; but the objection was overruled, though, in deciding the case, the learned judge a quo reached the conclusion that it should have been excluded. The testimony adduced upon that subject was, in substance, as follows:

Plaintiff testified that, in written contracts, where the right to terminate the relations between the parties, by giving two weeks' notice, is intended to be reserved, it is so expressed, and that, whether the contract be written or verbal, where the employment is for a definite term, the right does not exist unless expressed.

Being asked:

"Did you have any understanding, or did you understand, when you were employed, under the telegrams that passed between Mr. Baldwin and yourself, that you could be discharged on two weeks' notice, or that you could leave on two weeks' notice?"

-- he replied:

"I never thought of such a thing. It never occurred to me."

Lester Lonergan, an actor of 13 years' experience, testified that, if he were employed "for the season," he would consider himself employed for the entire theatrical season, and that the season of the Baldwin-Melville Company, of 1904-05, began in September and ended in May. Being asked:

"In the absence of any express stipulation that the contract relation may be terminated between the management of the theater and the actor, is there any implied understanding, in verbal agreements, authorizing the termination of those relations, when the employment is 'for the season'?"

-- he answered:

"No."

Being asked, on cross-examination:

"Now, Mr. Lonergan, is it not a custom of the profession for actors to sever their connections with companies, or for managers to sever their connections with employes, actors, by giving two weeks' notice?"

-- he answered:

"It is loosely called a custom."

He further said that he was a member of the Baldwin-Melville Company during the season 1905-06, and severed his connection with it for cause (as he considered); that as a matter of fact he did not leave the company until the expiration of some two weeks after he had informed the manager of his intention, having told him that he would remain until a substitute would be found. He also said that, if the manager had given him two weeks' notice, he would have accepted it.

The testimony of the defendant Baldwin is in part as follows:

"Q. Now, Mr. Baldwin, state what you understood by this telegram 'One hundred and twenty-five, positively best; if accepted, consider yourself engaged. ...