Aumont v. Nebenzal

McCOMB, J. From a judgment in favor of plaintiff after trial before the court without a jury in an action to recover damages for breach of a warranty agreement, defendant appeals.

Viewing the evidence in the light most favorable to plaintiff (respondent) and pursuant to the rules set forth in Davis v. Stulman, 72 Cal.App.2d 255, 262 [2] [164 P.2d 787] (Fox, J.), the record discloses the following facts:

Plaintiff’s decedent, hereinafter referred to as the “actress” on October 2, 1946, entered into a contract with the Atlantic Production Company, hereinafter called the “corporation,” of which defendant, hereinafter called the “producer,” was the president and a large stockholder. The agreement employed the actress to perform in a motion picture sometimes entitled “Atlantis,” and hereinafter called the “picture,” at a salary of $100,000, of which $50,000 was to be payable during the period of service, and $50,000 payable (1) within nine months after completion of the picture, or (2) at such time as the corporation had recouped 90 per cent of the cost of its production, whichever should occur first.

On February 24, 1947, the actress at the request of the producer, in order to enable him to obtain certain financing, [279]executed a subordination agreement whereby she agreed not to stand on her right to request the corporation to pay her deferred compensation of $50,000 as provided in her contract, but to postpone such request until the picture was in “general release.” In consideration of the actress’s promise the producer agreed on February 28, 1947, that if the picture went into general release later than October 15, 1947, he personally would pay her deferred compensation of $50,000 at the time called for by the employment agreement.

On December 2,1947, the picture was not in general release and the actress executed an extension agreement extending the condition upon which the guaranty agreement of the producer would become effective to March, 1948.

The trial court found: (1) The actress had performed her employment agreement; (2) There was no general release of the picture by March, 1948. Thereupon judgment was rendered in favor of plaintiff for the sum of $32,916, which constituted the unpaid balance of the $50,000 which the actress was to receive when the picture was generally released.

The producer (defendant) appeals, contending that there was not any substantial evidence to sustain the following findings of the trial court: