Goldkette v. Daniel

McCOMB, J.

From a judgment in favor of defendants predicated upon the granting of their motion for a judgment on the pleadings, in an action for declaratory relief and accounting between the parties, plaintiff appeals.

So far as material the facts alleged in the complaint are:

On March 6, 1935, plaintiff and defendants entered into a written contract providing that defendants should render services as professional entertainers and that plaintiff should act as their business manager. The agreement provided that the proceeds of the enterprise should be divided equally among the six parties.

On July 3, 1942, the original contract was modified by another agreement in writing which was executed by all parties excepting defendant Daniel. However, though defendant Daniel did not execute the second agreement he conducted himself as though he were a formal party to the contract, rendering his services in the same manner as the other professional parties and sharing compensation on an equal basis with them. Just prior to the first of June, 1943, defendants Daniel and Williams refused, in the absence of an increase in their compensation, to participate in the presentation of a performance which plaintiff as their manager had arranged. In order that the performance should take place as scheduled, all parties signed an agreement May 31, 1943, which reads in part as follows:

[98]

“The Manager [plaintiff], Wilfred Williams and Howard Daniel, agree that in the event the controversy between them cannot be settled amicably on or before June 15, 1943, the entire matter will be submitted to Arbitration under the rules of the American Arbitration Association under the supervision of the Actors’ Equity Association, the American Federation of Radio Artists or any other branch of the Four A’s that might be affected. ’ ’

The dispute between plaintiff and defendants Williams and Daniel was not amicably adjusted and pursuant to the provision quoted in the agreement of May 31, 1943, the controversy was submitted to the American Arbitration Association which made its award reading in part as follows:

“1. That complainant Jean Goldkette, and respondents Wilfred Williams and Howard Daniel were, prior to May 30, 1943, members of a partnership which partnership consisted of said persons together with Ira Williams, Edward Jacksqn, and James Sherman.