Herbert v. American Soc. of Composers, Authors and Publishers

• Decision Date: 27 May 1946
• Docket Number: 38052.
• Citation: 26 So.2d 732,210 La. 240
• Court: Louisiana Supreme Court
• Parties: HERBERT v. AMERICAN SOC. OF COMPOSERS, AUTHORS AND PUBLISHERS.

26 So.2d 732

210 La. 240

HERBERT v. AMERICAN SOC. OF COMPOSERS, AUTHORS AND PUBLISHERS.

No. 38052.

Supreme Court of Louisiana

May 27, 1946

Rehearing Denied June 14, 1946.

Appeal from Civil District Court, Parish of Orleans F. J. Stich, judge.

Cawthorn & Golsan, of Mansfield, for appellant.

Ralph H. Fishman, of New Orleans, curator ad hoc, for appellee.

FOURNET Justice.

The plaintiff, Clifford Victor Herbert, proceeded by way of attachment against the non-resident American Society of Composers, Authors and Publishers (commonly referred to as ASCAP) seeking to be declared entitled to certain royalties assigned by him to his former wife in a community settlement following their divorce and withheld by the defendant upon receipt of a letter addressed to it by the plaintiff revoking such assignment.

The defendant, through its regular counsel, came into court and posted bond, dissolving the writ of attachment, and contending that Mrs. Herbert was a necessary party to the proceedings, filed a plea of non-joinder of parties defendant. When this plea was overruled, the defendant, invoking the provisions of Act 123 of 1922, filed a petition of interpleader wherein it admitted it had withheld royalties in the amount of $5,600 that are claimed by both Herbert and his former wife, and, averring that it had no other interest in the matter than to insure itself against the possibility of paying this amount to a party not justly entitled thereto, asked that these funds be deposited in the registry of the court to await final disposition of the matter and that it be relieved of any further liability in the premises. Mrs. Herbert being a non-resident, an attorney-at-law was appointed to represent her.

Herbert is appealing from the judgment of the lower court dismissing his suit against ASCAP, decreeing his former wife to be the owner of the $5,600 deposited in the registry of the court, relieving ASCAP of any further liability in so far as this amount is concerned, and taxing the costs of the suit against him, deductible from the funds on deposit, with reservation of Mrs. Herbert's right to seek reimbursement from Herbert in proper proceedings for this amount.

Herbert, the son of the famed musical composer Victor Herbert, acquired by inheritance certain copyright interests in his father's musical works and by virtue of these interests became a member of ASCAP and as such entitled to receive royalties accruing to the members. In connection with the proceedings whereby he and his wife effected a settlement of their property rights at the time of their divorce in 1938 Herbert agreed, with the approval of the court, to pay Mrs. Herbert the sum of $2,800 per annum out of the royalties accruing to him as a member of ASCAP, payable quarterly, and while this property settlement was later modified the arrangement with respect to the $2,800 payment was unchanged. In conformity with his agreement, Herbert issued an irrevocable order on ASCAP to make payment of this amount out of the royalties due him to Mrs. Herbert. Accordingly, ASCAP made these payments up until January of 1943, at which time Herbert notified the organization of his intention to test the validity of the assignment executed by him in favor of Mrs. Herbert in view of Article XX of the constitution and by-laws of ASCAP prohibiting such an assignment and put ASCAP on notice that it would be held responsible for payments made to Mrs. Herbert in the future. Consequently, ASCAP withheld the quarterly payments to Mrs. Herbert and also refused to make these payments to Herbert. This suit followed.

It is Herbert's contention that because of this prohibition against an assignment of royalties in Article XX of the constitution and by-laws of the association, he had a right to revoke the assignment of royalties he had made to his wife, since the articles of the association are the law between him and the association.

It is, on the other hand, claimed by the attorney appointed to represent Mrs. Herbert that she is entitled to the proceeds deposited in the registry of the court under the assignment made to her by her former husband in compliance with his agreement in their property settlement, contending that these rules and by-laws are for the association's benefit and that it waived them by making royalty payments to her under the assignment; further, that Herbert, having made this assignment...