Rooney v. Weeks

• Decision Date: 28 February 1935
• Citation: 194 N.E. 666,290 Mass. 18
• Parties: ROONEY v. WEEKS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

290 Mass. 18

194 N.E. 666

ROONEY v. WEEKS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1935

Suit in equity by Alfred Rooney against Randall Weeks and others. From an interlocutory decree, modifying and confirming a master's report, and a final decree for plaintiff defendant Weeks appeals.

Affirmed.

Appeal from Superior Court, Suffolk County; Macleod, Judge.

W. E. Weeks, of Everett, for appellant.

J. A Treanor, Jr., of Boston, for appellees.

PIERCE, Justice.

This is a suit in equity whereby the plaintiff seeks an injunction to restrain the defendant Weeks (hereinafter referred to as the defendant) from an alleged violation of the negative stipulation in a contract of personal service made with the plaintiff whereby the defendant agreed to refrain from working for others than the plaintiff during the term of the contract. The bill of complaint as amended also seeks to recover certain sums of money as ‘ damage suffered by the plaintiff by reason of the failure of the defendant to perform his said agreement,’ or as due under the terms of the contract as a percentage of earnings paid to the defendant under contracts with third parties. The answer of the defendant Randall Weeks alleges that the contract is void for want of mutuality; that, assuming it was valid, the contract was broken by the plaintiff and not by the defendant; that no damages have been suffered by the plaintiff, and that no sums of money are due from the defendant to the plaintiff. The case was heard by a master, to some of whose findings the defendant filed exceptions. Upon further hearing upon the report and exceptions thereto an interlocutory decree was entered modifying and confirming the master's report. From this decree the defendant appealed. Thereafter a final decree for the plaintiff was entered and from this decree the defendant appealed to this court.

The master was ordered ‘ to hear the parties, find the facts and report his findings * * * together with such questions of law * * * as either party may request.’

The report, in substance, is as follows: The plaintiff conducted an advertising business, principally radio broadcast advertising. There were in his organization a musical director, a radio director, a copy chief or writer and himself. These four, with other minor employees, constituted a planning board. This board analyze the situation, decide what stratum of society they desire to reach in any particular advertising campaign and what area territorially is to be covered.‘ The actual advertising is done by means of a ‘ broadcast,’ that is, the sending out over the air from a studio a program which has been arranged in advance. This program involves the securing of talent, usually musical, the selection of artists and the music, and the arrangement and timing of the numbers and of the talk by which the advertising is done. The ‘ show,’ as it is called, must be carefully rehearsed and timed, is finally produced in an ‘ audition’ so-called, and after being approved by Mr. Rooney and presumably by the advertiser who pays for it, the program goes into production. An ‘ audition’ is in effect a trial of the program, and is often given also to prospective customers as a means of selling the advertising service which is furnished by the plaintiff and similar concerns, as well as to try out a program which has already been adopted.'

The musical director in this organization was not merely an orchestra leader. His function, as such director, was broad and included the general supervision and control over the whole musical production. The radio director is the connecting link between the advertising company and the musical director; he is directly responsible for the type of program used and passes final judgment on the actual musical numbers to be used. The copy chief or writer takes care of the ‘ continuities,’ so called, which are the spoken words used in a program, and attends also to publicity in newspapers and similar matters.

The defendant was twenty-five years of age. He started in business playing a piano in an orchestra. In October, 1929, he got together a small orchestra and had several engagements in which he sang and also used his orchestra. In September, 1930, he entered into a contract with the plaintiff. October 1, 1931, he executed a second contract with the plaintiff which was modified and superseded by a third contract, that took effect on November 1, 1931, to run until September 1, 1932. The last contract is the one on which this suit is based. The first contract did not mention employment of the defendant as a vocalist, but the later two specified that he was to serve as both director and vocalist.

The contract dated November 1, 1931, provides that ‘ In consideration of the mutual promises and agreements herein contained, the said Ranny Weeks enters the service of the Alfred Rooney Company under the following terms:-The said Ranny Weeks agrees to work in the capacity of musical director and vocalist for radio broadcasts with the said Alfred Rooney Company exclusively except as released in writing, temporarily, by the said Alfred Rooney Company from November 1, 1931 to September 1, 1932.’ And he agrees to ‘ devote his entire time, skill and attention to the said Alfred Rooney Company during the term of this service, and not to work for anybody else during the said term unless with the written consent of the said Alfred Rooney Company,’ and ‘ to accept no other employment unless mutually agreed upon in writing.’ The Alfred Rooney Company agreed ‘ to pay the said Ranny Weeks for the satisfactory performance of his duties the sum of $75.00 per week for two programs or less per week and $25.00 for each additional broadcast per week, and also 66 2/3% of the net profit from all outside engagements, except as follows: the said Alfred Rooney Company is to allow the said Ranny Weeks 85% of the net profit from the broadcast of the Gold Stripe Hosiery Company if there be only one broadcast per week for the said Gold Stripe Hosiery Company; if however there shall be more than one broadcast per week for the said Gold Stripe Hosiery Company then the said Alfred Rooney Company will pay the said Ranny Weeks 66 2/3% of the net profit of any except the first broadcast.’ It is also agreed ‘ that the said Alfred Rooney Company shall have an option to renew this contract on its expiration on the following terms; $100.00 per week for two broadcasts or less and $25.00 for each additional broadcast per week, other conditions to remain the same, provided said Alfred Rooney Company shall give notice to the said Ranny Weeks of its desire to exercise said option prior to October 1, 1932.’ This agreement was signed, sealed and witnessed.

When the defendant, in 1930, commenced work with the plaintiff he was first used as a musical director, he also led the orchestra on several programs put on by the plaintiff, and in one broadcast he sang. On his first program he got together an orchestra, using such musicians as he wished, as this orchestra was to be larger than the one he had been leading. On this first program the defendant sang about two weeks when ‘ he was taken off as a vocalist because his work in that capacity was not satisfactory to the plaintiff,’ but ‘ he continued on the broadcast as musical director and orchestra leader.’ From September 11 until the summer of 1931 ‘ the orchestra, led by the defendant, had a number of outside engagements, and during this period there were many auditions on which the defendant was used as a vocalist. During this period also a broadcast was then in operation for the Fox Fur Company, which continued until after difficulties arose between the parties in the spring of 1932. On this also the defendant acted as musical conductor and orchestra leader until March 5, 1932, when he ceased to conduct the orchestra.’

From the date of the present contract, November 1, 1931, the plaintiff has had only one contract for broadcasting an advertising program, to wit, the one with the Fox Fur Company. On this program the defendant has never appeared as a vocalist, two other persons being used in that capacity. The defendant has at all times been anxious to sing and has requested the plaintiff to use him as a vocalist, but auditions in which he sang were not productive of business for the plaintiff. Meanwhile, the defendant procured work for himself as a vocalist on three programs which commenced early in 1932, and also similar work at the Metropolitan Theatre, all with the consent of the plaintiff, as is provided in the contract. The defendant's work as a vocalist had improved meantime, due to study, music lessons, and his opportunity to observe the work of others and his experience generally. During this period the defendant received some publicity through the newspapers, particularly as the result of his work with the Metropolitan Theatre, and in the three broadcasts referred to which he procured for himself.

The outside engagements of the defendant conflicted with his work as orchestra leader on the Fox Fur Company program, and as the result of a conference on March 5, 1932, it was agreed that the defendant would relinquish his position as an orchestra leader, and one Rakov, a violinist in the orchestra, was appointed to take his place. Notice of this change was given Rakov by the defendant personally. It was further agreed at this conference that Rakov should be given full control of the orchestra, with power to hire and discharge members. Thereafter Rakov ‘ hired and fired’ the musicians, rehearsed the orchestra and vocalists and directed the orchestra in the performance of the Fox program. The defendant was not released from his contract but was requested to listen to the Fox programs...