Mission Film Corp. v. Chadwick Pictures Corp.

[388]

WASTE, C. J.

Judgment went for the plaintiff in this action to enforce the collection of moneys claimed to be due under a contract, and the defendant has appealed. The appeal was submitted upon an order to show cause, no brief for respondent being presented or on file.

The respondent entered into a contract with the appellant, by the terms of which the former was to produce a motion picture which the appellant undertook to sell and distribute. Certain sums of money were to be advanced by the appellant distributor during the filming of the picture, and, upon delivery to it of the master print and two negatives in salable condition, the distributor agreed to advance to the producer, in cash, one-half of the balance of the actual negative cost, not to exceed $30,000. The distributor further agreed to pay to the producer one-half of the proceeds derived from the sale, exhibition and distribution of the picture, guaranteeing, in any event, the entire negative cost up to $30,000 within six months after date of the delivery of the master print and negatives. Payments were made up to the one required upon delivery of the print and negatives, and plaintiff brought this action to recover the balance due under the contract. Defendant denied the delivery of the negatives in accordance with the contract. The court found that the negatives and print were delivered, and that defendant had collected large sums of money from the sale and exhibition of the picture. It therefore gave judgment in favor of plaintiff as prayed for.

When the cause came on for trial, counsel for the defendant moved for a continuance on the ground that it was essential to have the testimony of the president of the defendant corporation, who was practically the sole stockholder, and who had conducted all the negotiations with reference to the contract; that he was at that time detained in New York by reason of pending business, and that counsel were not possessed of sufficient facts to enable them to properly defend the action. The motion was denied on the ground that a similar motion, based on the same affidavit, had been previously made that morning before the judge of another department of the court, and by him denied.

Appellant first contends that the court erred in denying the motion for a continuance, and that such denial was an