GORLITZ V. KUBELIK.

Evening Star, Issue 14164, 14 September 1909, Page 4

GORLITZ V. KUBELIK.

BIG 5 DAMAGES CLAIMED. In'the Supreme Court, before Mr Justice Williams and a special jury of twelve (Mr J. Mokmey foreman), the hearing of the case in which Hugo Goriitz, manager of the Dresden Piano Company’s Timaru business, is suing Jan Kubelik, the violin virtuoso, for £3,000 damages, was begun this morning.

Mr W. C. MacGregor and Mr J, B. Chilian, jun., appeared for plaintiff, and Mr S. Solomon, K. 0., and Mr A. S. Adams for defendant.

The statement of claim sets forth that between 1901 and 1906 plaintiff acted as musical agent for Kubelik in six concert tours of Britain and tho United States, and during one of these tours plaintiff entered into a, contract with defendant, on 20th February, 1906, at Chicago, to undertake a concert tour of Australia and New Zealand. Under this contract not less than forty concerts were to be given, beginning in September, 1906, and ending in the following December. Kubelik was to receive 60 per cent, of the gross takings from all concerts given in Melbourne and Sydney, 55 per cent, of tho gross Bikings in other centres in respect of tho first concert, and 60 per cent, in respect of any subsequent concert there. Kubelik also was to" take 80 per cent, of tho gross receipts from Philharmonic or Symphony Society Concerts where a fixed price was arranged with such society, and 85 per cent, of the fee for “At homes” not arranged by any other musical agent than plaintiff. Goriitz was to bo entitled to the balance of the gross receipts, he undertaking to pay all other expenses in connection with the tour except tho accompanist’s salary. Kubelik undertook to pay his own travelling and hotel expenses, and those of his suite and accompanist, also the expenses of an orchestra, should he desire tho support of one at any of his concerts. The receipts wore to be under the control of Karl Junkermann (Kubelik’s secretary), to whom a statement of them was to be handed. The payments due to Kubelik were to be made weekly, and it was provided that they should never be more than three_ concerts in arrear. Goriitz was to submit all preliminary arrangements in connection with tho concerts for Herr Junkermann’s approval. On tho day that this contract was entered into, plaintiff, at Kubelik’s request, cabled to his (Gorlitz's) representative in London as follows :- “ Ask Murjphy cable Australia tour positively settled open Melbourne beginning September also inform English Press tell Madame proposing Louis advance agent leaving for ’Frisco to-night.” On completion of their American tour plaintiff and-' defendant arrived at Liverpool on 27th May, 1906, when Kubelik refused to carry out tho above-mentioned contract. Plaintiff claims that by reason of this breach bo was put to much loss and expense, and lost- profits he would otherwise have made had defendant performed his part of the contract. Plaintiff accordingly claimed to recover £5,000 damages. In the statement of defence it is admitted that Kubelik made several tours of Britain and America with plaintiff as his agent. It is also admitted that' plaintiff and defendant met at Chicago on the date alleged, but defendant denies that he entered info the contract mentioned in the statement of claim, or, in fact, into any contract for a tour of Australia and New Zealand. Defendant denies that, either at his request or otherwise, plaintiff sent the cable message above quoted. Defendant admits that on or about 27th May, 1905, he reuised to enter into a contract with Goriitz for a tour of Australia and New Zealand.

Mr MacGregor, in opening the case for (lie plaintiff, said that plaintiff was a musical agent or impresario, and defendant uas a celebrated violinist. Several tours had been made by the two in company the last, an American tour in 1905-06, not being so successful as some of the earlier ones. At its conclusion plaintiff and defendant fell out, and defendant refused to carry out the contract plaintiff alleged he had made for another American tour, to bo followed by an Australasian four 1 he business part of an artist’s life bad to bo very carefully managed. Negotiations for a tour had to be made a long way in advance. The Press had to bo approached, and the tour had to bo boomed. Plaintiff said that ho had actually arranged with defendant the terms tor the Australasian tour, but defendant denied Unit any binding bargain bad been made. Iho evidence of defendant Kubelik and ] ns secretary Junkermann had been taken on commission in London, and the jury would have to decide between it and iff n b ia ton i dc, ;o ( ! on behalf tho plaintiff. Gorhtz had been ready and willing to carry out his part of the contract. Kubelik. Junkermann, a,nd his other business fneuds were all Continental people;' none of them had been in Australasia until they fame in 1908, while, on the other hand Gorhtz had been here thirty years ago having been married thirty years ago m Dunedin to Miss Amy Sherwi'n, known as the Australian nightingale. Gorlitz had returned to London, but had kept in touch with Australasia. Early i n 1905 vubelik had signed an agreement stating i 'finn/t ° Ut t0 -Australia before the end 0f_1906 he must go out under Goriuz s auspices. Mr Solomon : Do you relv on that? You rely on the bargain made in America’ His Honor said that it was relevant only m showing which of the parties was telling the truth about the contract in dispute, to which it might have led up It was not very material, ns Kubelik did not come out in 1906.

Mr MacGregor: that is our complaint he took very good care not to come out in 1906. Counsel continued that Kubelik knew that Gorlitz was familiar with Australasia, and well known there. Mereover, Gorlitz was a British subject, which Kubelik and Junkermann were not. Counsel went on to give details of negotiations. Mr MacGregor put in a letter from Junkermann from Canton, asking the plaintiff to move in the matter of the Australian, tour. When the plaintiff was in New York Junkermann gave him instructions to open any telegrams for him. Ho opened one from his (Gorlitz.’s) clerk named Buckingham, in London, in which he wanted to know when he would bo wanted for the Australian tour, showing that Junkermann wanted to undermine Gorlitz to get the Australian tour in his hands, and to get Buckingham to carry it out. That brought them up to January, 1906. Gorlitz met Kubelik in Chicago on the 20th of Febniary. and talked of the Australian tour. The plaintiff would say that one reason why Kubelik was anxious to got dates fixed and the matter settled and communicated to the newspapers was that ho had heard that a young and rising violinist named Mischa Elman was booked for Australia, and lie was anxious to get ahead of him. Accordingly the cable mentioned in the statement of claim was sent to Miss Murphy, in Loudon, and it would be shown that in the Dunedin papers and the Melbourne ‘Age’ and ‘Argus’ of February 22 appeared a cable message announcing" the forthcoming tour of Kubelik. After" leaving Chicago the parties did not meet until their arrival in San Francisco, two months later. The tour was again discussed, and iu San Francisco they met several Australians—Mr O’Connor (Postmaster-General) and the Musgrcves (who were then touring America). In the end of April Gorlitz was in Chicago, and he wired Junkermann asking if the Australian contract should be made out in German or English. . The plaintiff then proceeded to New York, where he received a reply to his telegram. Junkermann wrote that it was all the same whether.it was made out in German or English, but that ho thought it would) be belter in English, showing clearly that a bargain had been made. The'plaintiff then ordered printing for the Australian tour, which came to close on £IOO, which he hail to pay* out of his own pocket. Altogether ho had paid out about £lB7 up to this time out of his own pocket. On the 14th of May the parlies met again at Montreal. A day or two later at Quebec Junkermann said that Kubelik wanted the 920d0l owin'* to him on the eighty concerts in America” Gorlitz said that ho had not got it—that ho. had lost money. It was then said it would bo all right if he paid half, and he borrowed 500dol, which he paid over to Junkermann, who then asked if ho could get a fresh contract of the Australian tour.

aa he had destroyed the other. Gorlitz gave him one, and altogether had forwarded him-three contracts, none of which 'ho had oeen eince. Then/ the party embarked for Liverpool. The relations were friendly on the voyage. Knbeiik used to walk arm and arm with Gorlitz, and play chess with him. They met Sir James and I«dy Mills, who were travelling by the same steamer. Lady Mills talked about the Austral lan tour, and promised in Kubelik’s presence to arrange a reception for him when he came to Xhmedizu Junkermann still had possession of the three contracts. Gorlitz was anxkms about getting the contracts signed. He know his signature was on them, and he wanted the other man’s. On their arrival at Invorpool Kubelik told a Pressman who met the .party of his forthcoming tour to Australasia at the end of the year under Gorlitz’s management. On the ioumoy from Liverpool to London Gorlitz asked Junkennann to get tho Australian contract signed before Kubelik went home to tho Continent. Junkermann returned with Kubelik’s answer that ho would not deal with Gorlitz until the latter paid 400dol he owed. Gorlitz replied that Kubelik owed him a lot of money for advertising. However, an appointment was made tor the Hyde Park Hotel next morning to discuss the matter. Gorlitz tip-nod up odly to find that Kubelik had not been near the hotel, but had caught the night boat for the Continent, Gorlitz wrote thrice to Kubelik asking him to keep to his engagement. In the last letter Gorlitz expressed his intention of claiming £3,000 unless he did so. This letter was written in 1906, and it also threatened steps to prevent Junkermann vilifying Gorlitz. A’ reply was received from Junkennann in July of that year in which Junkemann said he had at last had enough of Gorlitz’s unodhthness, and would thenceforth treat Gorlitz as his biggest enemy and would fight him openly. Counsel suggested that previously Junkermann had posed as Gorlitz’s friend, while all tho time Junkennann had been undermining Gorlitz with Kubelik, and this letter was a throwing off of all disguise. Kubelik and Junkennann remained on tho Continent, so that Gorlitz would not proceed against them in the English courts. Kubelik lived in Bohemia, and took very good care to remain there so long ;us Gorlitz was in England. Gorlitz left lor Australia to prepare a tour for his wife, Amy Sherwm, in 1906. That tour was not a success owing to the singer’s health breaking down in Sydney. Gorlitz had been in New Zealand for- two years in the employ of tie Dresden Company, but was shortly going Home to pick up the threads of the English business in which he had engaged previous to going on tour with Paderewski and Kubelik. When Kubelik came out to New- Zealand ho probably did not' know where Gorlitz was, but Gorlitz served him with a writ for damages, and did his best to get Kubelik to stay in New Zealand and fight the case out, but unsuccessfully. As to the damages claimed, the defendant said that the gross the Australasian tour had been £9.618, and the expenses £3,847, se that plaintiff’s 40 per cent, of the gross takings would have all been swallowed up in expenses, and that plaintiff was therefore entitled to no damages. But ho (counsel) contended that ibis was a grossly fallacious statement. There were discrepances in the accounts. On those gross takings the tour should have shown a. surplus of £2,000 to the impresario. But the true test would not bo tho actual profits from the tour as carried out in 1908, but the probable profits from a tour such as that mapped out for The gross takings would have been nearer £15,000 than £IO,OOO. Gorlitz’s 40 per cent' would have been £5,000, and as the expenses of such a tour should not exceed ren -k > < ‘ r £3,000, that would leave ±.5.000 as Gorlilz’s profit, which was precisely the sum Gorlitz claimed for as far back as 1905.

Hayjy Musgrove, manager of the Nellie tstewart Company, and brother of Mr Gwrge Musgrove, said he know the plaintiff. Witness was in the States in the early part of 1906. His company were in i. an Francisco and Denver the same time as the Kubelik party. Ho remembered meeting the plaintiff in both these towns Ho had conversations with tho plaintiff both at San iraneisco and Denver.

ihc plaintiff, who gave his age a.s fiftyfive, said ho had been a naturalised British subject since 1895. Ho had managed concerts tor the defendant for five or bjx years. Before that he was nine years manager for Paderewski. Wien managing for Kubelik lie had a contract in writing as a rule Hie letter produced and dated January 21, 1905, was m his bandwriting. It was'lhen mat tuc Australian tour was discussed It cropped up through Mr John N. Tait tryto Kubelik for an Australian tour. Witness had a short four with Kubelik in the English provinces, ending in Dover on the 24th of June, 1905. The contract for the American tour was then signed. The Australian tour was also discussed, hut they could not fix any date owing to the state of Madame Kubelik’s health. Dates were put down in pencil, and were merely suggestions at that time. Witness went to the United States to enter upon the arrangements for the American tonr. He returned to England in August, and went on tour with Kubelik through the English provinces. He loft for the States again in October, and Kubelik and party arrived in Kew York in December. Negotiations were renewed in New York for the Australian tour. The first letter on the subject was written on the 11th of January. 1906, when Junkermann wrote from Canton stating tliat Kubelik was going to Australia without fail. The words “without fail” wore underlined. Then ho received a telegram on January 15 asking him to answer about Australia. Witness in New York opened a cable from Buckingham to Junkermann wanting to know when ih© latter wanted liim for Australia. He thought after that that some underhand work was going on. Buckingham was in his (witness’s) employ, and so was Junkermann at one time. It was necessary to advertise the tour in Australia at least six months ahead. He next met the party in Chicago on February 20. Kubelik Junkermann, and Schw'abe (the accompanist) were present at the time, and after talking .over the concert the night before, Kubelik showed him a notice of Mischa Elman’s projected tour of Australia. He said : “ We must anticipate him.” Witness replied: “There is nothing to prevent it." He then agreed fo go to Australia in September, under his (witness’s) management, on the same terms as the general contract They thereupon shook hands. Kubelik said that no written contract was necessary, and witness said : “ I am quite agreeable! I never had a, written contract with Paderewski for the nine years I was with him.” In his own wav Mischa Elman was as big an artist as Kubelik, Ho was much younger than Kubelik, who, ho would say, was about twenty-eight. Elman was about eighteen now. Kubelik suggested that they should lot it bo known immediately that the tour had been decided upon. Witness then sent a cable to Miss Murphy iu London advising of the tour. The' instructions from Junkermann, sent by cable, were to open in Melbourne in Septembeig and to inform the English Press' of the fact. Cable notices from London appeared in the Australasian papers on February 22, stating that Kubelik opened his Australian lour in September. Witness then detailed other discussions between the parties as to the tour, as explained by learned course! in his opening statement. Witness consulted with Mr Harry Musgrove at Denver before mapping out the lour. On resuming after lunch witness exhibited samples of posters he had had prepared in America for the Australian tour. Witness made out the contract for that tour in New York, having throe typed copies, two of which he signed and posted to Chicago addressed to Junkermann. He met the party again at Montreal, where he was cordially received by them. He mentioned to them at Montreal some details of his preparations for the Australian tour. At Quebec, just before sailing for England, •Junkermann came to witness and said : “Kubelik wants that 920d01, or ho will not continue with you.” Witness replied : “I have not got the money, as I have lost such a lot lately.” Junkermann went away, and on coming back said that if witness paid half the money it would be all right. Witness went and borrowed 500dol. and paid Junkermann, who said : “ I have mislaid those two contracts you

sent me; have you got anothert” Witness handed Junkermaim his third copy, which was unsigned. Sir James Mills was subpoenaed to give evidence at the trial, which was to have commenced three weeks ago, but ho was now on liis way to Melbourne. In the railway between Liverpool and London Junkermaim told witness ; “ Kubelik won’t go to Australis with you unless yon pay the 4a0d01.” Witness‘re- ?- v v * iavo no * J K, and, besides, Kubelik owes me a good deal more than that for special advertising.” Kubelik owed witness about 980dol for that. They went and saw Kubelik, and witness said that for a paltry 420d01, after witness’s , uil . d aftßr paying Kubelik 70,000d01, Kubelik should carry out his contract. Kubelik replied-. “Let Junkcrinaiui attend to that.” Witness asked for a chance to talk it over the next day. and Kubelik said: “ Como to Hvde Park Hotel to-morrow morning.” At Huston station toey shook hands, and Kubelik said: Until to-morrow.” The next morning witness went to the hotel. Kubelik had not been there, having gone straight through to the Continent by the previous night s train. Witness had not seen Kubelik since then until in New Zealand at the beginning of last year: The last letter lie !™ te Kubelik was on the 25th of July. 1906, and in it claimed £3,000 damage's! In the latter part of the letter he wrote: Junkermaim says I have been dismissed for bemg short in my accounts.” Witness asked Kubelik to get his secretary to withdraw this, or he would take proceedings for defamation of character. Kubelik made porcply letter. The result of Kubelikb failure to carry -out the contract was that when witness arrived in London he found that his business had gone. Ito had to give up his home; ho was virtually ruined.

Mr Solomon; He had boon with Kubelik for years, and had been paid for his services.

Mr MacGregor explained that it was tho business of pOoting Kubelik through Australia and New Zealand that had gone. Witness then came to Australia in advance of his wife, Amy f?herwin, whom ho married in Dunedin in 1876. His wife followed a month later, and was touring m Australia when witness came on to New Zealand os advance agent. The tour came to a sudden termination. Her voice gave way, and she had to return to London, where she was now teaching music. Witness was in low water himself financially, »nd took a position with tho Dresden Pianoforte Company, first at Ashburton and then at Timaru. Bo resigned from the company a few weeks ago, with a view of returning to London to join his wife and daughter. Mr MacGregor said Kubelik’s and Junnermann's evidence had been taken in London. Bo would ask a few questions with regard to the same. Kubelik says : ‘I was not satisfied with plaintiff’s conduct before tho commencement of tho American tour, and the grounds of my dissatisfaction were—first, that plaintiff had been drinking; secondly, that ho had treated people roughly as manager; and, thirdly, that ho aid not properly settle his accounts with mo. It was not very pleasant to be travelling with a. man who has to bo carried to his bed drunk.” Witness said those statements were untrue.

(Left sitting.)