This is an action on an assigned claim of one Kurt M. Hageman for compensation for services under a written contract of employment executed by the defendant with him on the 18th day of September, 1911, by which he was employed to perform “such duties pertaining to the exhibition of the game of base ball ” as defendant might require of him during the American League season for the year 1912, which embraced the period of six months from April 15, 1912, to October 15, 1912, and for which it agreed to pay him $400 per month. The defendant paid this compensation to Hageman for the first month; and then, by its direction, he reported to and played with the Jersey City club until the twenty-third day of June, and was paid by that club at the same rate for that period. Hageman was required to and did sign a contract with the Jersey City club; and the nonsuit was granted on the theory that the defendant thereupon was released from all liability under its contract with him. The action is brought to recover the compensation provided by the contract for the period from June 23 to October 15, 1912.
Hageman contracted with the Denver club of the Western League as a pitcher for the base ball season of 1911. The Denver club belonged to a minor league known as a Class “A” league of the National Association of Professional Base Ball Leagues. The National League and American Association of Professional Base Ball Clubs and the American League of Professional Base Ball Clubs were major leagues of the same class; and each of them was composed of several clubs, each having a professional base ball team. . There was a formal agreement in writing between the two major leagues and the National Association of Professional Base Ball Leagues, and it will be referred to as the national agreement. The parts of that agreement deemed by counsel material to the issues were offered and received in evidence and are printed in
By the contract the plaintiff’s assignor became obligated to report for practice and to participate in exhibition games as might be required for a period of thirty days prior to the 15th of April, 1912, at such place as defendant might designate, and pursuant to its direction he reported at Cincinnati in the fore part of March and performed such duties there and at Hot Springs, where the club went for practice, as were required of him. He then accompanied the team to Boston and remained with it until'May fifteenth, and in the meantime participated in two official league games as a pitcher. On the morning of that day, while the club was practicing at Boston, Mr. McAleer, the president of the defendant, said to Hageman, “I want you to go to Jersey City, they want a pitcher over there, and Mr. Breen is here, and I want you to go back with him,” to which Hageman replied, “Mr. McAleer, I would rather stay here. It is every ball player’s ambition to get to the city here at the big games,” whereupon McAleer said, “We want you to go over there for a" short period ” and “ then you will come back here. * * * Every one that works for me must pitch and I want you to go over there and pitch.” Hageman then went to Mr. Stahl, who was the manager of the team, and
Denver as I have turned you over to them.” Hageman then went to Boston and called on McAleer and said, “I do not like the idéa of going to Denver, because it is a lower league,” and that the terms were unreasonable and that he would not go unless his contract with respect to salary was kept and the defendant made up the difference, which McAleer refused to do, and that he then informed McAleer that there was a manager in the International League who would pay him the salary he was receiving from the defendant and had authorized him to say to McAleer that he would also pay as much or more than the defendant was to receive from the Denver club, and that McAleer replied, “ I do not care, that is the hard luck of base ball, you must go to Denver, or wherever I send you, * * * you have to go where we send you. * * * I won’t make up the difference in salary, you will have to go just the same.” McAleer informed Hageman that the Denver club was giving $500 for his optional release, but that the defendant would release him to another club if he could find some manager who would pay $1,000 more than the Denver club was giving. Hageman says that he found such a manager who would pay him the same salary as he was receiving from the defendant, and would give the defendant $1,500 for his release, and so
After the defendant undertook to transfer Hageman to the Denver club, Hageman communicated by telegram with the national commission with a view to obtaining redress, but neither the date nor the contents of his telegram were shown. The chairman of the commission—whether in reply to his telegram or acting on other information does not appear—wired Hageman under date of July ninth, addressed to him care of “Boston Bed Sox”—by which name defendant’s team was known — as follows: “ Boston Bed Sox purchased your release they could not turn you over to Denver unless all major league clubs waived claim they have acted within their rights the Denver club has a right to regulate your salary, you cannot expect a major league salary in class A co. ” Hageman then wrote the national commission under date of July 15, 1912, setting forth his claims in full and in substance as herein recited, and appealed to the commission to protect him against what appeared to him to be a conspiracy to prevent his obtaining the salary to which he was entitled nnder his contract with the defendant, and which other clubs were willing to pay. He received a letter from the national commission under date of July nineteenth, which is not in the record, to which he replied at length on July twenty-ninth, emphasizing the injustice to which he was being subjected, and in that letter he alluded to a claim, evidently made by the chairman of the national commission, that the waivers required had been obtained by defendant; but he did not admit the correctness of the claim, and it does not appear that he had any information on the subject other than that communicated by the letter to which his was a reply and the telegram already quoted. On August thirteenth he received another telegram from the chairman of the commission as follows: “My letter to you under date of July nineteenth relative to matter you have pending before com
It was expressly provided by rule 34, forming part of the national agreement, that a player purchased by a major league club from a minor league club could not be transferred to any minor league during the year following such purchase, “unless all Major League Clubs in both the National and American League shall have waived claim to his services and if such waiver cannot be secured then the player shall either remain with the club having purchased him or be transferred to the club refusing to waive claim to him by sale to such club; and in such instances, the purchase price shall be the same as is now fixed by the National and American Leagues in like cases, to wit, $1,500.” This provision applied to the case at bar, for Hageman had been purchased by defendant from a minor league club the year before. There is no evidence that the defendant obtained waivers from any or all of the clubs from which it was required to obtain them before it could transfer Hageman to a minor league club. Of course the statement in the telegram from the chairman of the commission to the effect that the defendant was acting within its rights is not proof of the fact that it had obtained waivers.
According to the testimony in this record, during all the negotiations, the claim upon which the plaintiff was nonsuited and upon which the respondent attempts to sustain the judgment, namely, that the defendant was released by Hageman’s signing the contract with the Jersey City club, was never suggested. It is manifest that that claim is untenable. The defendant assumed to reclaim Hageman from the Jersey City club, or to accept him back, and recognized that its contract with him continued in force, and assumed to dispose of his services by virtue of its rights, erroneously asserted under said contract, to the Denver club. There is no presumption that the defendant obtained waivers from all of the clubs from which it was required to obtain them as a condition precedent to its right to transfer Hageman to a minor league club, and the burden was upon the defendant of showing that it had duly complied with the rule, if it claims that as a defense to the action for Hageman’s services.
It was contended on the trial and is suggested here, but not urged, that the assignment to the plaintiff was void. The plaintiff is a membership corporation composed of base ball players, and it was organized to protect their interests and further the interests of organized base ball. The claim has been assigned in writing in due form, and there can be no question but that the defendant will be protected by any recovery in this action. There is, therefore, no merit in the point.
It follows that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.
Hotchkiss, J., concurred; McLaughlin and Dowling, JJ., dissented.