M. H. Hoffman, Inc. v. Bernstein Film Productions

BRITTAIN, J.

The defendant appeals from a judgment for six thousand five hundred dollars, with interest and costs, rendered on the common count for money had and received. On behalf of the appellant it is contended that the findings are not supported by the evidence, and that recovery on the common count could not be had under the facts disclosed.

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The defendant, a producer of motion pictures, in April, 1917, had in course of production a picture play entitled “Who Knows. ’’ It had in contemplation the production of a series of other motion-picture plays. On April 6, 1917, the defendant contracted with one Zierler to deliver to him for exclusive distribution in the states of New York, New Jersey, and Connecticut the film of “Who Knows,” and to give him the option on later plays for distribution in those states. The contract price of “Who Knows” for the three states was six thousand five hundred dollars, of which Zierler paid one thousand dollars on the signing of the contract and promised to pay the remaining five thousand five hundred dollars on delivery of the film. The film was shipped to Zierler after May 1, 1917, and he paid to the defendant on its delivery the five thousand five hundred dollars. The suit is to recover these two sums claimed by the plaintiff to be due to it by reason of dealings between the parties to the action subsequent in date to the Zierler contract.

On April 24, 1917, the defendant entered into a written contract with the plaintiff, under which, for the period of five years, the defendant agreed to produce and deliver to the plaintiff, for exclusive distribution throughout the world, all its picture plays, under an arrangement by which they were to share in net profits. The cost of production was to be paid by the distributor to the producer, but until September 1, 1917, one-half of this cost was to be paid on delivery of the negative to the distributor and the remaining half out of the first receipts of the distributor as each film was delivered and marketed. At that time the play “Who Knows” had not been completed. In the contract with the plaintiff the Zierler contract was briefly described and the fact that he had already paid one thousand dollars was recited. The particular clause of the contract then continued: “With this understanding, it is understood by the producer and the distributor that this agreement is made subject to said contract with said Zierler, which contract the distributor agrees to assume, and the contents of which he is familiar.”