Fletcher v. Rachou

• Decision Date: 20 November 1975
• Docket Number: No. 5252,5252
• Citation: Fletcher v. Rachou, 323 So.2d 163 (La. App. 1975)
• Parties: H. B. 'Bud' FLETCHER v. Carol RACHOU, d/b/a La Louisianne Records and Recording Studio.
• Court: Court of Appeal of Louisiana

Page 163

323 So.2d 163

H. B. 'Bud' FLETCHER v. Carol RACHOU, d/b/a La Louisianne Records and Recording Studio.

No. 5252.

Court of Appeal of Louisiana, Third Circuit.

Nov. 20, 1975.

Rehearing Denied Dec. 17, 1975.

J. Minos Simon, Lafayette, for plaintiff-appellant-appellee.

Bean & Rush by Warren D. Rush, Lafayette, fordefendant-appellee-appellant.

Before MILLER and WATSON, JJ., and CUTRER, J. ad hoc.

WATSON, Judge.

This suit involves disputes between a recording artist and the owner of a recording studio. H. B. 'Bud' Fletcher, the plaintiff and defendant-in-reconvention is an entertainer specializing in the telling of jokes and stories in 'Cajun' ¹ dialect. The defendant and plaintiff-in-reconvention is Carol Rachou who does business as La Louisianne Records and Recording Studio. At issue was Rachau's failure to make payment of royalties and Fletcher's failure to make additional recordings. The trial judge held that Rachou owed Fletcher $2,286.50 and Rachou had no valid claims against Fletcher.

Fletcher has appealed, claiming that the amount due is considerably in excess of the award; and Rachou has appealed, contending that the trial court erred in rendering a money judgment in favor of Fletcher and in failing to award damages to Rachou.

Prior to December 9, 1967, Fletcher made several recordings for Rachou which the latter sold successfully. The exact financial arrangement concerning these recordings is unclear from the record. On December 9, 1967, the parties entered into a written contract ² for a five-year term which provided basically: that Fletcher would record exclusively for Rachou; that recordings would be made at 'mutually agreeable times'; that a royalty of 5% Of the retail price (which amounted to 25 cents per album) would be paid; and that payment would be made semi-annually within 45 days after June 30 and within 45 days after December 31 of each year, subject to a deduction for all advances against royalties.

Significantly the recording contract did not call for the recordation of any particular number of records per year or during the term of the contract. There is no reference in the contract to royalties payable for prior recordings. The contract provides that, in the event of Fletcher's death, the royalties will thereafter be payable to his wife.

Pursuant to this contract, Fletcher made only one record despite attempts by Rachou and his employees to encourage additional recording. Certain recording dates were set up, but Fletcher contacted the studio on each occasion and indicated that, for some reason, usually sore throat, he would be unable to record. In an effort to encourage Fletcher to make additional records, Rachou withheld payment of royalties earned by Fletcher, but on one or two occasions gave him a check for royalties with an understanding that a new record would be made shortly thereafter.

It is undisputed that, during the contract period, Fletcher did not make recordings for anyone else and that, as of the date of trial he had, to a large extent, retired from his activities as a 'Cajun' humorist.

The contract between the parties expired on December 2, 1972, and, on December 6, 1973, Fletcher filed a petition alleging the existence of the contract, contending that no royalties had been paid since September 9, 1970 and that he was due an accounting and payment of all royalties. The petition was thereafter amended to claim the precise sum of $4,132.25. At no point in his petition or his amended petition did plaintiff assert a precise claim for royalties due under any prior contract on the several other records which he had made for Rachou prior to the December 9, 1967, contract.

Defendant Rachou answered, denying plaintiff's claims and asserting a reconventional demand for $10,000. He claimed loss of expenses and profits from Fletcher's failure to make recordings during the contract period, as the result of which Rachou lost the sale of those records and enhancement of the value of Fletcher's other records.

There is a certain lack of collision on the issues by the parties to this lawsuit, one side arguing certain issues and the other side arguing different and sometimes unrelated issues. However, following the propounding and answering of extensive written interrogatories, as well as other pre-trial activities, the matter was tried on the merits and the trial court found essentially that:

1. the parties did not contract to make any particular number of records;

2. defendant failed to make timely payment of royalties;

3. defendant admitted that he owed plaintiff $2,286.50 and such sum was due and owing;

4. defendant was not entitled to recover on the reconventional demand for alleged loss of profits, and even if he were so entitled, the proof was not sufficiently clear to arrive at any amount due; and

5. The claim for out of pocket expenses was not corroborated in the evidence and could not be allowed.

Following judgment by the trial court, Fletcher applied for a new trial, contending that: according to answers to the interrogatories propounded to Rachou, Rachou admitted selling 18,529 records and, under the contract, ³ Fletcher was entitled to 25 cents each or the sum of $4,632.25, less the payment of $500. Additionally, Fletcher contended that Rachou admitted the sale of another 6,456 records which would entitle him to additional royalties of $1,614.00 or a total of $5,746.25. In the motion for new trial, Fletcher also contended that the payment of royalties is a continuing obligation as long as Rachou sells the recordings and that he was entitled to an order for a continuing accounting by Rachou.

The motion for new trial was denied on the basis that the contract provided that all recordings were property of Rachou and royalties were due Fletcher only while the contract was in force. New trial was denied.

On appeal, Fletcher emphasizes the alleged error of the trial court in failing to hold that the royalties were continuing rather than limited to the five-year term of the contract. Rachou contends that the court erred in ordering payment of royalties to Fletcher, who, according to Rachou, either breached the contract or failed to perform under it, thereby entitling Rachou to have the contract dissolved and also entitling him to recover damages.

The issues to be decided on appeal are:

1. whether the trial court erred in awarding Fletcher $2,286.50 as past due royalties;

2. whether the trial court erred in failing to recognize that the payment of royalties is a continuing obligation; and

3. whether Rachou is entitled to:

(a) release from his obligation to pay royalties because of breach or non-performance of the contract by Fletcher, and

(b) payment of damages.

I. Royalties

The trial court was correct in awarding the amount of $2,286.50 as past due royalties. Rachou concedes that this was the royalty only on the one record made under the contract. Fletcher persists in claiming royalties on all recordings made for Rachou, but this suit, as delineated by the petition and amending petition, is basically a demand for royalties due under the five-year contract of December 9, 1967, under which only one record was made. As to the prior records made by Fletcher for Rachou, the sale of which was alluded to in various interrogatories and answers to interrogatories, the trial court was not furnished any evidence concerning the agreement between the parties as to the amount of royalty, if any, payable on these records. The contract of December 9, 1967, did not relate to or refer to previous sales of records.

In his testimony, Rachou admitted owing Fletcher the amount awarded by the trial court, and under the circumstances, we find no error in this award.

We do not agree with the trial court, however, that the obligation to pay royalties terminated at the conclusion of the...