Alcazar Amusement Co. v. Mudd & Colley Amusement Co.

• Decision Date: 30 June 1920
• Docket Number: 6 Div. 22
• Citation: 204 Ala. 509,86 So. 209
• Parties: ALCAZAR AMUSEMENT CO. et al. v. MUDD & COLLEY AMUSEMENT CO.
• Court: Alabama Supreme Court

86 So. 209

204 Ala. 509

ALCAZAR AMUSEMENT CO. et al. v. MUDD & COLLEY AMUSEMENT CO.

6 Div. 22

Supreme Court of Alabama

June 30, 1920

Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

Bill for injunction by the Mudd & Colley Amusement Company against the Alcazar Amusement Company and others. From a decree refusing to dissolve the temporary injunction, respondents appeal. Affirmed.

W.T White, of Birmingham, for appellants.

Black Altman & Harris, of Birmingham, for appellee.

McCLELLAN J.

Under the averments of the amended bill and the attached contract (in two writings executed in the same connection), the Select Pictures Corporation invested the amusement company (complainant appellee) with the license or privilege of exhibiting exclusively and as "first run" the films within the contemplation of the contract. If the allegations in the bill otherwise in this respect were ignored, and if the contract included The Isle of Conquest, the averments are sufficient to ingraft upon as a part of the contract an established usage of trade significance, that justified the complainant's allegation that the contract invested it with the exclusive license or privilege of exhibiting the film as a "first run" for the six days prescribed in the instrument. German Ins. Co. v. Commercial Ins Co., 95 Ala. 469, 474, 11 So. 117, 16 L.R.A. 291; 4 Michie's Dig.Ala.Rep. p. 608 et seq., noting earlier decisions of this court; 17 C.J. p. 492 et seq. In order to constitute time the essence of a contract, it must be expressly so made, or that intent must necessarily follow from the circumstances disclosed by the particular engagement. Fulenwider v. Rowan, 136 Ala. 287, 309, 34 So. 975. The writing designated Exhibit B in the pleading provided:

"First. The distributor agrees that it will, during the year commencing on or about the 1st day of September, 1918, release eight photoplays, in which the above-named star shall enact the leading role; and it hereby grants to the exhibitor the license to exhibit one copy of each of said photoplays, at the above-named theater only, for six successive days, and the exhibitor agrees to pay for such license the sum of $300 per picture, such payments to be made at least seven days before the date specified by notice to the exhibitor as hereinafter provided. Such license shall be specifically and solely for the exhibition of such photoplays at the above-named theater on the days specified in said notice to the exhibitor, and for no other purpose."

The writing (advanced payment contract) designated Exhibit A in the pleading provided:

"Whereas, the parties hereto propose to enter into certain contracts under the above date whereby the distributor will grant to the exhibitor the license to exhibit certain series of photoplays at the above theater upon certain days at stated prices; and, whereas, as part of the consideration for the approval and execution of such contracts by the distributor, the exhibitor has agreed to make an advance payment for photoplays deliverable under said contracts: Now, therefore, in consideration of the premises and of the execution by the distributor of the aforesaid contracts with the exhibitor, relating to the series of photoplays respectively known by the following star series titles, Clara Kimball Young series, Norma Talmadge series, Constance Talmadge series, Alice Brady series, the parties hereto do hereby mutually agree as follows: ***

"Third. The exhibitor agrees to play, in the order of delivery for exhibition, at least two of said photoplays during each and every period of one month, commencing with the 1st day of September, 1918, and to play all of said photoplays on or before the expiration of one year from the date of exhibition of the first of said photoplays. *** Either party hereto may, by notice by registered mail given to the other, limit said contracts to two additional photoplays of each series respectively, and upon the delivery for exhibition of said additional photoplays said contracts will terminate with the same effect as if said photoplays were the last of the series respectively deliverable thereunder."

While a period of time, viz., during the year commencing on or about the 1st day of September, 1918, was mentioned in the contract, the writings do not expressly stipulate that time was or should be of the essence of the engagement. It appears very clearly that the paramount intent of the parties was that eight films, starring Norma Talmadge, should be furnished (subject to other stipulations) for exhibition by appellee in Birmingham, six of which had been so furnished by the Select Pictures Corporation at the time (August 16, 1919) that corporation communicated to the appellee its purpose to terminate the contract. Unless excepted by the considerations to be stated, the film called The Isle of Conquest was one of the eight films of the Norma Talmadge series that the Select Pictures Corporation engaged to furnish for exhibition by the appellee; time, one year, not being of the essence of the contract and not operating to define a period beyond which the delivery of the eight films of the Norma Talmadge series should not be effected by the Select Pictures Corporation under the license or privilege assured the appellee by the two writings, Exhibits A and B to the amended bill.

The fourth section of Exhibit A, so far as presently necessary, reads:

"Either party hereto may, by notice by registered mail given to the other, limit said contracts to two additional photoplays of each series respectively, and upon the delivery for exhibition of said additional photoplays said contracts will terminate with the same effect as if said photoplays were the last of the series respectively deliverable thereunder."

There is nothing in the record to indicate that this stipulation of the contract was availed of by either party. On the other hand, the letter to be presently quoted in part excludes the idea that the stipulation just reproduced was invoked by the Select Pictures Corporation.

Section 8 of Exhibit B provided:

"Inasmuch as the distributor is dependent for its ability to perform this contract upon the production of the photoplays above described, which may be prevented by the illness, injury, incapacity, death, or default of the artists, directors, and other persons or corporations engaged in producing the same, and inasmuch as the performance of this agreement on the part of the distributor may be prevented or delayed for various reasons beyond its control, it is recognized by both parties that it is necessary for the distributor to reserve the right of canceling this agreement. It is therefore specifically agreed that the distributor may, upon ten days' notice to the exhibitor, cancel this agreement. In the event of such cancellation both parties shall be relieved of all liability thereafter accruing hereunder."

In their letter of August 16, 1919, to the appellee (exhibitor), the Select Pictures Corporation wrote:

"Exercising the right vested in us by virtue of paragraph 8 in contract No. A-2006, made on the 26th day of July, 1918, entered into between Select Pictures Corporation, a corporation,

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