Shubert Theatrical Co. v. Rath

• Decision Date: 16 February 1921
• Docket Number: 170.
• Citation: 271 F. 827
• Parties: SHUBERT THEATRICAL CO. v. RATH et al.
• Court: U.S. Court of Appeals — Second Circuit

271 F. 827

SHUBERT THEATRICAL CO. v. RATH et al.

No. 170.

United States Court of Appeals, Second Circuit.

February 16, 1921

Nathan Burkan, of New York City, for appellants.

William Klein, of New York City (Charles H. Tuttle and William Klein both of New York City, of counsel), for appellee.

Before WARD, ROGERS, and HOUGH, Circuit Judges.

ROGERS Circuit Judge.

The plaintiff corporation is organized under the laws of the state of New York, is in business as a theatrical manager and producer of plays, and for a number of years last past was and still is engaged in producing plays and attractions at various theaters in the city of New York. It likewise presents plays on the road in a tour of the United States and Canada, and among the plays so produced is one known as 'The Passing Show of 1919,' in which the defendants appear.

The plaintiff on July 8, 1919, entered into a written agreement with the defendants by the terms of which the plaintiff engaged them to render their exclusive services to it for a period of one year commencing from September 1, 1919. It was agreed therein that the defendants should appear at all times as directed by the plaintiff during the year, and it was guaranteed that they should be employed for 20 weeks in the minimum, and their salary was fixed at the sum of $250 per week while appearing in the city of New York and $275 per week while on the road. It was further provided that the plaintiff had an option on the services of the defendants for the theatrical year beginning September 1, 1920, and ending September 1, 1921, provided plaintiff gave notice of its desire to exercise such option prior to July 1, 1920. If the plaintiff exercised the option reserved to it, the agreement provided that the guaranty of 20 weeks should again apply for the period, but that the salary should be $300 per week while appearing in the city of New York and $325 per week while appearing on the road. On June 7, 1920, the plaintiff pursuant to its option employed the defendants for the year beginning on September 1, 1920. Notwithstanding this, the defendants advised the plaintiff that they refused to perform according to their agreement and it appears that they have contracted with a rival manager to appear in a production to be presented in a rival theater in the city of New York.

An injunction is asked to restrain the defendants from performing for any managers other than the plaintiff, or from performing in any other theater or place of public amusement or in any other company, except that of the plaintiff, until the expiration of the term mentioned in the agreement made between the plaintiff and the defendants. The court below granted the injunction as prayed.

The contract is found in a letter addressed by the plaintiff to the defendants and signed 'Shubert Theatrical Company, by J. J. Shubert. ' Then follows:

'We have read the foregoing. The same contains our full understanding, and with our signatures at the bottom hereof, let this be deemed a contract between us.

Geo. & Dick Rath, 'By Geo. H. Rath.'

The letter (contract) contains the following:

'You (the defendants) agree throughout the term hereof that you shall not render your services, nor will you appear publicly for any other firm or corporation, whether moving pictures or otherwise, without our written consent first had and obtained, and shall you attempt to appear for any other management or in moving pictures, we shall have the right to apply to any court having competent jurisdiction for an injunction restraining your appearance, and you agree, for the purpose of such lawsuit, that your services are extraordinary and unique, and you cannot be replaced, except for Morris Gest.'

The performances which the defendants contracted to give are acrobatic in character. The testimony shows that their feats are unique and extraordinary. A prominent theatrical manager and producer of wide experience, and not associated with the plaintiff, testified. One of the feats of the defendants' performances, as he described it, is that one of the defendants with one hand raises the other defendant, a full-grown man, from the floor, his body being stretched at full length upon the floor. The witness, in describing it, said this was done without apparent effort, 'just as easy as you would lift a straw. ' In reply to a question by the court, he declared:

'It is a fact that it is the most marvelous thing that has ever been before.'

He added that it had never before been done with a grown-up man in the history of this country. Another theatrical manager, of whom defendants' counsel said, 'I will concede that he is a great manager and producer, and cannot be equaled in the theatrical business,' and who was asked by the court whether the performances of the defendants were unique and unusual, answered, 'Absolutely.' He added that he did not know of any imitator in the world. Another theatrical producer, having an experience of nearly 30 years and who is widely known, testified that their performance was 'absolutely unique and extraordinary.' This is an excerpt from his testimony:

'One of the moves they make is taking a man underneath his body, and raising him right over his shoulder, and standing him up straight on his hands, something that has never been done, as long as my experience has been in the show business. I have never seen anything like it.

'Q. Are you an athlete yourself? A. I am.

'Q. And do these features impress you as being peculiarly difficult? A. It has never been done as long as I remember seeing anything in the show business.

'Q. Yes. Do you know from your experience whether it would be possible to replace that act by other people? A. Absolutely impossible.'

The finding of the trial court that the performances of the defendants are unique and unusual is amply justified by the testimony. The services of the defendants are extraordinary, unique and cannot be replaced.

These services were to be given to the plaintiffs exclusively, and the contract contains an express negative covenant that they would not be given under any other management during the period named. By a negative covenant the covenantor promises that something shall not be done. The relief appropriate to a breach of such a contract is an injunction. The leading authority, as respects covenants for personal service, is the well-known case of Lumley v. Wagner, 1 De G., M. & G. 604. In that case a famous singer agreed to sing in the opera house of the complainant for a certain time, and not to sing for any one else during that time. The opinion in that case reviews the authorities and contains what is regarded as a very able and convincing discussion of the principle applicable in such cases. As the services contracted for were those of a person possessing special and extraordinary qualifications, Lord Chancellor St. Leonards granted an injunction restraining the defendant from singing at any other theater than that belonging to the plaintiff. It was held that the fact that the court would have been unable to enforce specifically the defendant's affirmative covenant to sing at the plaintiff's theater did not affect the complainant's right to an injunction to restrain a violation of the negative covenant not to sing elsewhere.

In McCaull v. Braham (C.C.) 16 F. 37, Judge Addison Brown continued an injunction restraining Lillian Russell from the breach of a negative covenant not to sing in comic opera during the season at any other than the plaintiff's theater. In addition to the negative covenant, the contract contained an affirmative covenant to sing in the employment of the plaintiff whenever required. In the course of his opinion Judge Brown said:

'Contracts for the services of artists or authors of special merit are personal and peculiar; and when they contain negative covenants which are essential parts of the agreement, as in this case, that the artists will not perform elsewhere, and the damages, in case of violation, are incapable of definite measurement, they are such as ought to be observed in good faith and specifically enforced in equity. That violation of such covenants will be restrained by injunction is now the settled law of England.'

In Cincinnati Exhibition Co. v. Marsans, 216 F. (D.C.) 269, the complainant had employed defendant as a ball player for a certain specified period, and defendant had covenanted not to render similar service to others during the continuance of the contract. An injunction issued to prevent the breach of the negative covenant. The court, by Judge Sanborn, said:

'It is a settled rule of law that where a person agrees to render services that are unique and extraordinary, and which may not be rendered by another, and has made a negative covenant in his agreement whereby he promises not to render such service to others, the court may issue an injunction to prevent him from violating the negative covenant in order to induce him to perform his contract. The facts of this case seem to me to bring it under this rule.'

In Philadelphia Ball Club, Ltd., v. Lajoie, 202 Pa. 210, 51 A. 973, 58 L.R.A. 227, 90 Am.St.Rep. 627, it was held that, where a baseball player had contracted to play with a particular club for a certain term, he would be enjoined from playing with another club during the continuance of the term, where the evidence showed that he was an expert player in any position, and had a great reputation among the patrons of the sport for his ability and skill.

In Pomeroy on Specific Performance, p. 31, the principle is stated as follows:

'Where one person agrees to render personal services to another which require and presuppose a special knowledge, skill and ability in the employee, so that in case of a...