141 F.2d 152 (7th Cir. 1944), 8403, Marcus Loew Booking Agency v. Princess Pat, Limited

• Docket Nº: 8403.
• Citation: 141 F.2d 152
• Party Name: MARCUS LOEW BOOKING AGENCY v. PRINCESS PAT, Limited, et al.
• Case Date: March 03, 1944
• Court: United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 152

141 F.2d 152 (7th Cir. 1944)

MARCUS LOEW BOOKING AGENCY

v.

PRINCESS PAT, Limited, et al.

No. 8403.

United States Court of Appeals, Seventh Circuit.

March 3, 1944

Page 153

Sylvanus George Lee, of Chicago, Ill., for appellants.

Isaac E. Ferguson and Morton Lane, both of Chicago, Ill., for appellee.

Before EVANS and MINTON, Circuit Judges, and LINDLEY, District Judge.

LINDLEY, District Judge.

From separate judgments against them, defendants appeal, urging error in denial of (1) their motion for a directed verdict, (2) defendant Princess Pat's motion for a directed verdict on its counterclaim, and (3) their motions for judgment notwithstanding the verdict. These averments of error question primarily the sufficiency of the evidence to justify submission to the jury or to sustain the verdict and the correctness of certain rulings in the course of the trial.

Defendants' contentions upon the facts center largely upon whether plaintiff failed to perform substantially its contract with defendants or willfully broke it by interjecting into broadcasting periods of advertising Princess Pat's products, announcements of horse racing events. The latter alternative constituted the defense offered to the complaint and the basis for that defendants' counterclaim. There was no controversy as to existence of a valid contract for broadcasting, or as to the fact that, in at least some of the periods, interrupting flash announcements were made. There was, however, a sharp dispute as to whether defendants knew of the breach by plaintiff as early as two days after the contract went into effect, failed to object, permitted the same to proceed without protest and, with knowledge of the fact, paid the bills for broadcasting for the first five weeks as they matured. Plaintiff's evidence supported the affirmative and defendants' the negative.

Where the preponderance lay is not a question for this court. It is too late to make inquiry into sharply controverted matters of fact. Only the jury could determine where the truth lay. It follows that it is unnecessary to consider the legal question of whether certain admitted acts constituted a willful breach of contract for which plaintiff is legally liable, for the verdict effectively established defendants' waiver of any breach urged.

Defendants claimed also defective performance in shortage of time, in unauthorized change of theme songs, manner of broadcasting and various other elements. But whether these events occurred or anything happened of such character as to negative substantial performance were also questions of fact upon which the verdict is conclusive.

Complaint is made of the charge. In one portion, in defining the issue, the court advised the jury that defendants contended that there had been no substantial performance of the contract for the reason

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