That adverse decision and judgment were based on a technicality,—on a point of law, not on a point of fact. The learned Justice who rendered decision and pronounced judgment did not find that Belasco had failed to prove his contention that, actually, he was in partnership with Klaw & Erlanger, not with Brooks, in presentation of “The Auctioneer.” He found that “parol evidence” could not be held to alter the effect of a written and sealed instrument of engagement. “The rule,” he declared, “allowing parol proof of an undisclosed principal is limited to simple contracts, for if the agreement be a sealed one, only the parties thereto subscribing can be held bound.” The question of prime public interest in this case (and it is of prime public interest, because the veracity, reputation and standing of one of the most eminent and influential men in our Theatre are affected by it) is not whether Belasco could, in law, under a strict rule of evidence, enforce against Klaw & Erlanger the contract actually signed by Brooks: the question is whether or not that contract was, in fact, signed by Brooks as “a man of straw” for Klaw & Erlanger, and by Belasco under duress. I cannot conceive that any intelligent and judicious person could read the testimony adduced and reach any other conclusion but that Belasco had proved his allegations as to fact. And it seems clear to me that the learned Justice must have felt satisfied that Belasco had proved his case, as to fact,—otherwise he would not have been at such pains to argue in extenso the incompetency of such proof under the rule.
A FAITHFUL FRIEND:—WARFIELD FOR BELASCO. THE END OF “THE AUCTIONEER.”
Warfield’s second season in “The Auctioneer” began, September 8, 1902, at the Hollis Street Theatre, Boston, and lasted for 39 weeks,—closing at the Victoria Theatre, New York, May 30, 1903. 315 performances were given and the net profits were $70,000. His third season began at the Harlem Opera House, New York, September 28. It was in December, 1903, that Brooks applied to Judge David Leventritt for a receiver for “The Auctioneer.” Warfield, then acting in New Orleans, being apprised of this application, declared that he would “not play under the management of Klaw & Erlanger’s representative, a receiver, or any one but David Belasco.” That declaration, being published in the newspaper press, was construed by Judge Leventritt as an attempt on the part of Warfield to coerce the court in the matter of appointing a receiver and,—remarking that if it had not been for what he deemed to be an attempt at coercion he would have been inclined to appoint Belasco as the receiver,—he named W. M. K. Olcott. Warfield thereupon refused to continue acting, his tour was summarily closed, January 10, 1904,—two weeks’ salary being paid by Belasco to the members of the company, in lieu of notice,—and Warfield returned to New York. Before leaving New Orleans he published this statement:
“When I stated I would not play under the management of any one but Mr. Belasco, I meant just what I said. It was not a threat—simply expression of my honest conviction as to what was just and due to the man who has made me a successful star. ‘The Auctioneer’ was Mr. Belasco’s own investment, every penny of it. It was he who conceived the idea of starring me in a play of this character. From this man Brooks I have received nothing, nor have I from Klaw & Erlanger, who are Mr. Belasco’s partners in ‘The Auctioneer.’ The manner in which they became partners will be shown and proved when this case comes into court for trial. They refused to give Mr. Belasco bookings until he had surrendered 50 per cent. of the concern. I was an unmade star then, and Mr. Belasco was not in the position of power which he holds to-day. We had to divide. But of the profits which Klaw & Erlanger have made from the managers with whom they have booked the attraction, neither Mr. Belasco nor I have received one penny from our partners. As for Brooks, he has never had even carfare, unless Klaw & Erlanger have been more liberal to him than to us.
“The trouble and annoyance which this whole affair has caused me have made me ill. But, sick or well, I absolutely refuse to play in ‘The Auctioneer’ for any one but my own manager, Mr. David Belasco. I defy Mr. Erlanger to deny that he and Mr. Klaw, and not Mr. Brooks, are the real partners of Mr. Belasco in my tour. He told me so with his own lips, when the New Amsterdam Theatre was building last summer. He asked me to come and see how the foundations were getting on. And when I funked, before crossing a rather rickety looking plank, he said ‘I won’t let you get hurt, old man. Remember, I own 50 per cent. of you.’ When Klaw & Erlanger hand over our share of the profits they have made on the side, through booking my play, I will go on with the tour, if my health permits.”
After his arrival in New York, having read the remarks of the judge in appointing a receiver, Warfield made this further statement:
DAVID WARFIELD
Photograph by White.
Belasco’s Collection.