Kahn v. Brown

McWilliams, J., delivered the opinion of the Court. Show business is the backdrop in this appeal. The appellee (Brown) is an idol 1 of the aficionados of “soul” music. Kahn 2 sought to assume the role of impresario but, as will be seen, he outsmarted himself and his efforts came to naught.

In 1964 Brown performed on two occasions in the Baltimore Civic Center. In June 1966 a promoter tried to “book” him into the Civic Center for another performance but the application was denied because of the “incidents of poor behavior attendant to the two previous shows” and because “there had been problems in other communities” during and after Brown’s performances. In December 1966, Kahn sought to rent the Civic Center auditorium for a performance to be held on 25 March 1967. He was told that the Bullets (the Baltimore professional basketball team) would have first call on the facilities if they reached the play-off for the championship, but that it was unlikely they would get that far.

To the dismay of their supporters it turned out that they had no need for the Center on 25 March. Kahn did not disclose to what use he proposed to put the auditorium. He was told, however, according to Harold Jennifer, the acting director, that there “were several acts” that would not be booked and that Brown was one of them. Kahn denied that any such statement was made to him.

Early in January Kahn went to New York to arrange for Brown’s appearance in the Civic Center on 25 March. He said he “spoke with Mr. Allen [Brown’s agent] concerning the James Brown show, and he [Allen] told * * * [Kahn] that there had been difficulties in trying ⁶⁵⁴ to book him [Brown] into Baltimore, that he had tried * * * to book James Brown in, and had been unsuccessful.” Allen also told him “before the contract was signed, * * * of their difficulties in trying to get [Brown] back into the Civic Center, since that period in 1964.” Nevertheless Kahn signed a contract, dated 10 January 1967, agreeing to pay Brown $15,000, plus 55% of the net receipts over $40,000, for one performance at the Civic Center on 25 March 1967. Kahn, as required by the contract, made an immediate payment of $7,500 on account; he agreed to pay the balance during the intermission on 25 March. A copy of the contract, executed by Brown, was sent by Allen to Kahn on 13 January.

On. 4 February 1967, the collapse of the Bullets having become mathematically certain, Jennifer sent a telegram to Kahn, whose address at the time was the “Pink Pussycat,” stating that the auditorium was “ready to rent * * * for [an] appropriate show” and asking for confirmation or release within 48 hours. When Jennifer discovered that Kahn had James Brown under contract to perform in the Civic Center on 25 March, he wrote the following letter to Kahn’s attorney: “February 6, 1967 “Mr. Paul A. Dorf Equitable Building Baltimore, Maryland 21202 Dear Mr. Dorf: “This letter will confirm my statements to you by way of telephone today relative to the booking of March 25, 1967, by Edward J. Kahn Associates. Because of incidents, which are a matter of record, occurring previously during appearances of the James Brown Show at the Baltimore Civic Center and because of the Baltimore Civic Center Commission’s policy of not booking acts where problems or situations not in the best interests of the public have occurred, the Baltimore Civic Center Commission has de ⁶⁵⁵ cided that it would be inappropriate to book the James Brown Show at this time. “We hope you will appreciate that the booking of Rock and Roll Shows here has brought about a very sensitive situation and the Commission is determined to be as careful as possible. These facts have been explained to Mr. Edward J. Kahn on several occasions when we have made known very clearly the Commission’s wishes in regard to Rock and Roll bookings.

It was on all of these occasions made very clear that we did not have the authority to book the James Brown Show. “We have set a deadline of Wednesday at 5 p.m. for Mr. Kahn to confirm the booking of an acceptable presentation or to release his hold on Saturday, March 25, 1967. Sincerely yours, Harold J. Jennifer, Jr. Executive Director Civic Center Commission” On 8 February Kahn filed a petition in the Baltimore City Court seeking a writ of mandamus to compel the Civic Center Commission to rent the auditorium to him on 25 March. He alleged, among other things, that he had been required to make a “cash deposit, non-refundable,” of $7,500 to Brown. (Emphasis added.) The petition was denied on 15 February.

Kahn went back to New York and discussed the situation with Brown’s agent. He was told that Brown would play for him in any auditorium that would hold at least 8,000 people. He tried to obtain the Lyric Theatre, the Coliseum, the Laurel Race Track and the Municipal Stadium; he was rebuffed by all for substantially the same reasons. Early in March he rented an open field in Baltimore County intending to stage the show in a huge tent.

The zoning commissioner approved his application subject to approval by the Fire and Police De ⁶⁵⁶ partments. The Police Department declined to give its approval. And so 25 March came and went without a performance by Brown and his Famous Flames either in Maryland or elsewhere. Soon after 25 March, Kahn went again to New York to see about getting back his $7,500.

The reaction to this was very cool indeed but Brown’s manager told him Brown would “play for * * * [him] anywhere in the State, whenever * * * [he] could get up a show, to do * * * [him] a favor” but first he had “to make sure that the land, or wherever