Hopkins v. Woodward

WASTE, C. J.

Plaintiff appeals from a judgment dissolving a preliminary injunction and refusing to perpetually enjoin the defendants from asserting any right under a certain contract.

It appears that plaintiff, as the owner of the dramatic rights in a certain play entitled “Holiday”, had by written agreement with the defendant Woodward licensed the latter to produce and stage said play in the cities of San Francisco and Los Angeles on or before May 1, 1929. As the result of negotiations between the parties, the date of the opening performance was extended, by mutual consent, to August 5, 1929. There are provisions in the contract looking to the termination of defendant Woodward’s rights thereunder in the event of his failure fully to comply with its terms. This action was instituted to terminate such rights and to perpetually enjoin Woodward, and those claiming under him, from producing or publicly presenting the designated play or from interfering with plaintiff’s production thereof through any other licensee. Plaintiff based his prayer for such relief on three alleged violations of the contract by the defendant Woodward, viz., his alleged breach of the provision’ requiring the staging of the play in San Francisco or Los Angeles on or before August 5, 1929; his alleged breach of the provision against assignment resulting from an asserted transfer to the defendant Holt of a portion of his interest under the contract; and a further alleged breach of the provision against assignment resulting from the filing by the defendant Woodward of a voluntary petition in bankruptcy.

Upon the conclusion of the trial of the cause, the court below found against the plaintiff on all of the issues raised by the complaint and the answers thereto. Judgment was accordingly entered dissolving the preliminary injunction theretofore issued, and dismissing the defendants with their costs. This appeal followed.

[621]

Plaintiff has apparently abandoned his contention based upon the two asserted breaches of the provision against assignment, for upon this appeal he confines his argument principally to the proposition that the defendant Woodward has lost all rights under the contract by failing to stage the play in San Francisco or Los Angeles on or before August 5, 1929. Upon this issue the trial court found, in substance, that the defendant did not produce the play in San Francisco or Los Angeles, or elsewhere, on August 5, 1929; that defendant’s failure to so produce the play was attributable to circumstances wholly beyond his control; that production was not commenced on August 5, 1929, because of certain serious injuries incurred in an automobile accident by one Richardson, who had been selected to play the leading male character in the play; that though Richardson’s injuries prevented defendant from producing the play on August 5, 1929, as agreed, defendant was nevertheless ready and able to produce the play on August 12, 1929, had he not been restrained by order of court in this action; that prior to the filing of this action the defendant informed plaintiff of his willingness and ability to reimburse plaintiff for any damage suffered by reason of the delay of one week; that such delay of one week did not cause irreparable loss to the plaintiff; and that such loss, if any, might be compensated for in damages.