Douglas MacLean Productions v. Warner Bros. Pictures, Inc.

NOURSE, P. J.

Plaintiff sued on a written contract. The cause was tried before the court sitting without a jury and the plaintiff had judgment for $5,000, from which the defendant appeals on typewritten transcripts.

Both parties to the agreement were motion picture producers. In the summer of 1929 negotiations were had concerning the purchase by the defendant of certain literary rights of the plaintiff. On October 31st of that year plaintiff made a written offer to defendant, which was duly accepted by the' latter and which reads: “FOR AND IN CONSIDERATION of the sum of Five Thousand ($5,000) Dollars to be paid to Douglas MaeLean Productions on or before February 15, 1930, by Warner Bros. Pictures, Inc., the said Douglas MacLean Productions, a corporation organized and existing under and pursuant to the laws of the State of California, hereby assigns all of its right, title and interest in and to that certain contract dated December 21, 1923, by and between Shubert Theatrical Company and Douglas MacLean Productions for the purchase of that certain original play entitled ‘ NEVER^SAY-DIE ’, a copy of which agreement is hereto attached.

“SUBJECT TO the rights of Pathe, Inc., as distributor of said motion picture, which rights the said Douglas Mae-Lean Productions is exerting its greatest efforts'to secure;

“In the event said rights are not secured on or before the 15th day of February, 1930, this assignment shall be of no further force and effect unless the time in which to secure them is mutually extended by the parties hereto.

“ (Seal) Douglas MacLean Productions

“By Walter E. Burke

“Vice President”

[623]

Conformably to the terms of its agreement the plaintiff procured a release of all the distributor’s rights of Pathe, Inc., subject, however, to outstanding foreign rights. On February 10, 1930, plaintiff notified defendant that “everything has been cleared”, but that if anything further was required by the defendant to be done the plaintiff stood ready to supply any document or perform any act necessary to carry out the full and complete terms of the agreement. Nothing further was requested by the defendant and no indication was given that it deemed plaintiff’s performance incomplete but, after the payment became due, the defendant sought relief from its obligation on the asserted ground that plaintiff had failed in complete performance in that the release of the distributor’s rights for Pathe, Inc., was not in writing, that it did not include the rights of foreign distributors and that plaintiff had failed to deliver negatives of the picture.