Yaguda v. Motion Picture Publications, Inc.

ARCHBALD, J., pro tem. For approximately one year prior to April 7, 1929, plaintiff had been selling subscriptions to two publications issued by defendant, paying particular attention to subscriptions obtained on club rates offered newspapers. No salary was paid him, although a purely fictitious salary was fixed in order, apparently, to conform to certain requirements of the audit bureau of circulations which called for payment by a subscriber of a minimum percentage of the published price of the publication. In other words, plaintiff sent his check to defendant for such aggregate mim'-mum, $1.25, on each subscription reported, and the exact amount so remitted was returned to him, $1 of same being charged to expenses and 25 cents to salary. Plaintiff retained the entire amount of subscriptions collected, which in the club rates given newspapers was a minimum of 25 cents for each annual subscription, and this [197]was Ms only recompense. The business produced by plaintiff was so gratifying that on April 7, 1929, a letter was written him by defendant’s vice-president and general manager, Duncan A. Dobie, reading as follows: “Confirming the points discussed in our conference this morning, we hereby extend to you.National Exclusive rights to sell subscriptions for our publications Motion Picture Magazine and Motion Picture Classic, through newspapers, for a period of two years from date. It is understood that our arrangements with other production sources of this character are to continue until the expiration of present agreements. Terms to be the same as those now in force, and of course, all production is to be in accordance with the requirements of the Audit Bureau of Circulations.”

Plaintiff extended his operations under such letter and continued to sell such subscriptions until March 26, 1930, at which time by agreement he relinquished his rights on the territory east of the Bocky mountains, but kept the Pacific coast territory' and operated there until July 17, 1930, when defendant, by letter, terminated the relationship theretofore existing, but gave plaintiff until October 1, 1930, to “work out problems with whatever newspapers you have tie-ups, and after that date we definitely part company in a business sense”. Apparently the only newspaper with which plaintiff then had a “tie-up” was the “Evening Express” of Los Angeles. On July 5, 1929, plaintiff had written said newspaper giving it the exclusive use of the magazines named for clubbing purposes at 30 cents per year in certain counties of Southern California, in consideration of the agreement of said paper to use the two publications in the solicitation of new subscriptions, “as well as your agreement to put on drives from time to time using these magazines for clubbing offers to tie up your present subscriptions”. Because of such cancellation plaintiff was unable to carry out his agreement with the “Evening Express”, and later filed his complaint for damages alleged to have resulted from the breach of his agreement with defendant.