Stein v. Cobb

WOOD, J.

Plaintiff commenced this action to recover the sum of $3,750, alleged to be twenty-five per cent of a sum received by defendant from the sale of the motion picture rights of a work of which defendant is the author. At the close of plaintiff’s evidence the trial court rendered a judgment of nonsuit, from which the appeal is taken.

Defendant is the author of a book entitled “Down Yonder With Judge Priest and Irvin S. Cobb’’, containing eleven or twelve stories. On January 15, 1932, defendant entered into

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a contract with a publishing firm doing business under the name of Ray Long & Richard R. Smith, Inc., wherein it is provided that “the author hereby grants, assigns, and transfers to the publisher ’ ’ the work in question. Numerous terms are set forth in the contract, in which the publisher agreed to publish and sell the work, paying the author a certain percentage of the selling price. In the seventh paragraph of the contract it is provided: “This agreement may be assigned by either party as a whole, and the assignee thereof shall have all the rights and remedies of the assignor, but neither party may assign any partial interest herein.” In the fourteenth paragraph of the contract it is provided: ‘ ‘ The copyright and rights herein granted to the Publisher cover the right of dramatization and adaptation for silent and/or talking moving pictures. If the Publisher arranges the sale of any such rights, Seventy-five per cent (75%) of any compensation received shall go to the Author and Twenty-five per cent (25%) to the Publisher.”

According to the allegations of the complaint, defendant on March 6, 1935, sold to Twentieth Century-Fox Film Corporation the motion picture rights of the work which is the subject of the contract for the sum of $15,000. Defendant testified that he had made a contract with Twentieth Century-Fox Film Corporation whereby this company had been given the right to use two of the stories contained in the work in question, together with a story taken from another book written by defendant. In his answer defendant alleged that the contract for the publication of the work had been abandoned by mutual consent.

The corporation which had contracted to publish defendant’s work became bankrupt and the trustees in bankruptcy assigned the contract to a new corporation, which in turn made an assignment to plaintiff in the following words and figures: “For and in consideration of the sum of One ($1.00) Dollar, and other valuable considerations, receipt of which is hereby acknowledged, the undersigned hereby assigns to A. J. Stein, that certain cause of action existing in favor of the undersigned against Irvin S. Cobb, to recover payment of Twenty-five per cent (25%) of all sums realized by said Irvin S. Cobb from the sale of certain literary materials entitled ‘Down Yonder with Judge Priest and Irvin S. Cobb’ to Twentieth Century-Fox Film Corporation, all as provided