Shribman v. Miller

• Decision Date: 26 February 1960
• Docket Number: No. C--2187,C--2187
• Citation: 158 A.2d 432,60 N.J.Super. 182
• Parties: Charles SHRIBMAN, Individually and as Executor of the Estate of Simon Shribman, Plaintiff, v. Helen D. MILLER, as Executrix of the Estate of Alton Glenn Miller, Deceased, Defendant.
• Court: New Jersey Superior Court

Page 182

60 N.J.Super. 182

158 A.2d 432

Charles SHRIBMAN, Individually and as Executor of the Estate

of Simon Shribman, Plaintiff, v. Helen D. MILLER, as Executrix of the Estate of Alton Glenn

Miller, Deceased, Defendant.

No. C--2187.

Superior Court of New Jersey

Chancery Division.

Decided Feb. 26, 1960.

Bernard Hellring, Newark, for plaintiff.

Lum, Fairlie & Foster, Newark, for defendant.

KILKENNY, J.S.C.

This court is called upon to determine In limine this question:

Must this court stay plaintiff's action pending submission of the matters in dispute between the parties to the International Executive Board of the American Federation of Musicians and the determination thereof by said board?

This court answers that question in the affirmative for the following factual and legal reasons.

In June 1959 plaintiff sued the widow and executrix of the estate of Alton Glenn Miller in this court for an accounting by her of moneys allegedly due plaintiff under a 1939 written contract between plaintiff and his brother Simon, now deceased, on the one hand, and the decedent Alton Glenn Miller, on the other. This 1939 contract was for a term of ten years. Plaintiff's brother Simon died after the making of the contract, and plaintiff succeeded to his rights thereunder. Miller, a popular orchestra leader, who performed professionally under the name of 'Glenn Miller and his Orchestra,' died in 1944.

Miller's will was probated before the Surrogate of Bergen County, in which county he was domiciled at his death. Miller's widow at the time of suit was and is now a resident of California. Jurisdiction by this court over Miller's estate and executrix was effected by service of a copy of the summons and complaint on the Bergen County Surrogate. The executrix answered the complaint and did not question this court's jurisdiction over her in her representative capacity. She did question jurisdiction over her individually by her answer and, subsequently, on her motion, this court ordered service upon her in her individual capacity set aside. No appeal was taken from that order. Hence, the suit remained only against Miller's estate.

Even though Miller has been dead about 16 years and the contract of 1939 would have expired under its ten-year term in 1949, if Miller had lived on, and even though neither Miller nor his estate paid any money to plaintiff or his brother Simon on account of this contract from 1943 to date plaintiff contends, nevertheless, in this suit that Miller's estate owes plaintiff an accounting of moneys received by Miller's estate after his death, but based on Miller's activities between 1939, when the contract was made, and 1944, when Miller died. Thus, for example plaintiff alleges a right to an accounting of any moneys which may have been paid by third persons to Miller's estate on account of recordings made by Miller and his orchestra between 1939 and 1944, even though the recordings might have been dormant and not revived or processed for sale and distribution until long after Miller's death. Likewise, he seeks an accounting of any moneys which may have been realized by Miller's estate, as the result of the filming of the 'Glenn Miller Story,' a movie of Miller's life, made long after his death, but which in its scenes and music may have embraced in part, at least, Miller's orchestral activities between the 1939 contract date and the date of his death in 1944.

The defendant estate's answer admitted the 1939 contract, but denied any and all liability thereunder. It raised, additionally, as affirmative defenses that Miller was released and discharged from the 1939 contract by a later 1943 agreement between the parties; that nothing became due to plaintiff after and by reason of Miller's death in 1944; that plaintiff's claim was barred by the New York six-year statute of limitations as well as by laches; and, more particularly for this decision, that the 1939 contract required the submission of any disputes or controversies thereunder to the International Executive Board of the American Federation of Musicians, by way of arbitration. Hence, defendant contended that plaintiff had no right to proceed with his litigation in this court until after submission to and determination by the Executive Board of the American Federation of Musicians of the matters in dispute.

The case was pretried and trial was set for January 27, 1960. Defendant's motion to stay this action pending submission to arbitration as aforesaid was denied by this court on December 5, 1959, because the limited affidavits and written proofs then submitted to the court left doubt in the court's mind as to the applicability of the arbitration provision.

On the premise that 'to doubt is to deny' injunctive relief, the stay of the action pending arbitration was then denied.

The 1939 contract did not contain an Express provision for the arbitration of disputes, in so many words, but did provide, Inter alia, as follows:

'5. The parties hereto will comply with and be bound by the laws, rules, regulations and orders of the American Federation of Musicians, and of any Local thereof having jurisdiction, anything herein contained to the contrary, notwithstanding, and said Miller and the members of his orchestra are at all times to be members in good standing in said Federation.'

The by-laws, rules, regulations and orders of the American Federation of Musicians required persons licensed by the American Federation of Musicians to act 'as agent, manager, or representative' for members of the Federation to sign a form of 'License Agreement.'

Plaintiff and his brother Simon were admittedly licensees of the American Federation of Musicians, and Miller was admittedly a member thereof in 1939, when they made their contract.

The license agreement form contained, Inter alia, these pertinent provisions:

'14th: The provisions hereof shall be deemed included in, and part of, any and all agreements between the licensee and Federation members; and acceptance of this license shall constitute a modification of all existing agreements between the licensee and such members to accord with the terms hereof.

'16th: Any default, dispute, controversy or difference arising between the licensee and the Federation, any local or any member or members of the Federation, shall be submitted to, and determined by the International Executive Board of the Federation, and the determination of said Board concerning the matters enumerated above shall be conclusive, final and binding on all connected therewith '17th: In the event of any violation of the terms hereof by the licensee, and the Federation shall have determined that such violation occurred, each and every member of the Federation shall thereby and thereupon be deemed released and discharged of and from any and all engagements and contracts with the licensee, and of and from any and all claims, of every kind and nature, by the licensee, against any member of the Federation.'

Plaintiff's attorney argued, however, that while plaintiff and his brother had been admittedly Miller's managers, booking agents, and representatives under an earlier 1938 agreement, which provided a 25% Commission on Miller's net earnings, after certain specified deductions, this 1938 agreement had been mutually rescinded and the 1939 contract had been entered into, providing for a lower commission of 16 2/3%, and with lesser duties to be performed by plaintiff and his brother. Thus, plaintiff contended that the terms of the license agreement were not applicable to their relationship under the 1939 contract.

Thereafter, defendant's attorney moved to reargue the denial of the stay pending arbitration and submitted additional proofs, allegedly discovered after the denial on December 5, 1959 of defendant's motion. When the motion for reargument was presented on January 15, 1960, the court reserved decision, because the trial was scheduled for January 27, and it was agreed between the court and counsel for both parties that the trial on January 27 would be limited on that day solely to the issue of whether the contract between the parties required arbitration of disputes thereunder, so as to warrant a stay of the action in this court until after arbitration.

As the result of a full day of trial of that initial issue only, at which both sides submitted their witnesses and proofs, this court has concluded that the services to be performed by plaintiff and his brother under the 1939 contract were some of the duties required of an 'agent, manager, or representative,' and hence subject to the terms included in the form of license agreement provided for by the rules and regulations of the American Federation of Musicians. The court finds that the parties themselves regarded plaintiff and his brother as 'managers' of Miller under the 1939 contract to some extent and acknowledged their contract to be a 'management agreement.' Thus, in the annual statements of account between the parties for the years 1940 and 1941, the amounts payable by Miller to plaintiff and his brother were designated 'management fees.' Also, in an agreement between the parties made in 1943 resolving the matter of fees payable by Miller to plaintiff and his brother for the year 1943, Inter alia, the parties referred several times therein to their 1939 contract as a 'management agreement.' While it is true that the substance of an agreement, or any object, will not be changed by a misnomer or incorrect designation thereof, when, as here, there is a dispute as to whether a contract was, in fact, a management arrangement between the parties, their own mutual designation thereof as a 'management agreement' is entitled to great weight and deserving of serious consideration by the court, especially since they were experts in the field to which the question relates. Furthermore, a comparison of the 1938 contract, in which plaintiff and his brother were obviously and admittedly managers...