Arliss v. Herbert Brenon Film Corp.

• Decision Date: 01 March 1921
• Parties: ARLISS v. HERBERT BRENON FILM CORPORATION.
• Court: New York Court of Appeals Court of Appeals

230 N.Y. 390

130 N.E. 587

ARLISS

v.HERBERT BRENON FILM CORPORATION.

Court of Appeals of New York.

March 1, 1921.

Action by George Arliss against the Herbert Brenon Film Corporation. From judgment of the Appellate Division of the Supreme Court (188, App. Div. 887, 175 N. Y. Supp. 893) affirming by a nonunanimous decision a judgment entered on verdict in favor of plaintiff, defendant appeals.

Judgments of the Appellate Division and Trial Term reversed, and new trial granted.

Appeal from Supreme Court, Appellate Division, First Department.

George Gordon Battle and Lanman Crosby, both of New York City, for appellant.

Milton S. Cohn and Max D. Steuer, both of New York City, for respondent.

HOGAN, J.

Plaintiff is prominent actor. Defendant is a Virginia corporation engaged in the production of film dramas. During the transactions which culminated in the present action one Herbert Brenon was president of the defendant corporation. He also held the position of director and producer of pictures. The plaintiff asserts that the defendant corporation entered into a contract with him to render his services for defendant to take the leading part in a film production of Faust; that the compensation for his services was agreed upon; that defendant defaulted in its agreement, and, notwithstanding that the plaintiff was ready and willing to perform and tendered his services, defendant refused to acknowledge said contract. Plaintiff seeks in this action to recover damages for a breach of said alleged contract to the amount of the agreed compensation.

Defendant interposed two defenses: First, that the minds of the parties never met; that any negotiations between them were merely preliminary and did not result in a contract; second, that Mr. Brenon was not authorized by the defendant corporation to enter into a contract with plaintiff, and that, when the proposed arrangement was brought to the attention of the controlling interests in said corporation, the latter not only refused to ratify the alleged contract, but expressly disaffirmed all action of Brenon relating to negotiations with plaintiff.

The issues were submitted to a jury at Trial Term, and a judgment thereafter entered on the verdict of the jury, which was in favor of plaintiff, for the full amount demanded in the complaint. Upon appeal to the Appellate Division, the judgment was affirmed, one justice dissenting therefrom. Defendant appeals to this court.

The fundamental question to be determined upon this appeal is as to whether or not a valid contract was entered into by the parties. Concededly, the negotiations between plaintiff and Brenon were carried on through one Miss Jacobs, an employee of a theatrical booking agency in the city of New York. The evidence discloses that, as the result of an interview with defendant's president, Mr. Brenon, Miss Jacobs, at his request, called upon Mr. Arliss, and had various conversations and correspondence with both defendant's president and plaintiff relating to the engagement of Mr. Arliss in a film drama to be produced by defendant.

The plaintiff asserts that as a result of such interviews in connection with interviews between defendant's president and plaintiff, arranged for by Miss Jacobs, and correspondence, that a complete and enforceable agreement was entered into.

To set forth more than a synopsis of the correspondence and interviews as have important bearing upon the question as to the existence of a contract would serve no useful purpose. The testimony of Miss Jacobs was in effect that at the solicitation of Mr. Brenon she called on plaintiff September 25, 1916, and told him that Mr. Brenon was desirous of securing his services. Plaintiff informed her, though he had several offers, he had never gone into the business of pictures, and ‘if I went into pictures I would want to do more than one,’ and finally gave her his terms for two pictures. He also assured her he would not deal with others until he had heard from her. That interview was reported by Miss Jacobs to Mr. Brenon the following day, and the latter told her that the figure of plaintiff was too high and to go back and make him a stated offer for the first picture and secure from him an option on plaintiff's services for a second picture. The next day Miss Jacobs made such offer to the plaintiff, which proposition plaintiff stated he would not consider; ‘it was not worth his while.’ Miss Jacobs thereupon notified Mr. Brenon of such rejection of his proposition by plaintiff. The following evening, September 28th, Miss Jacobs introduced plaintiff to Mr. Brenon and they had an interview. Plaintiff, in response to a request by Mr. Brenon to suggest the character of a picture to be produced, stated that he thought ‘Faust’ would be a good subject. Mr. Brenon replied, ‘We will do Faust, we will get together on the terms, * * * but that is the first thing we will decide on here and now, to do Faust.’ The same parties met again October 29th and ths Sunday following. Plaintiff inquired as to the time necessary to make a picture and was informed by Mr. Brenon that about four weeks', not over five weeks', time would be required. Mr. Brenon also informed plaintiff that he would want to make the picture while the plaintiff was in New York. The time necessary for plaintiff to devote to the work was discussed, due to the fact that while plaintiff was in New York he would be obliged to act at performances in that city. The plaintiff stated that he expected to be in New York about November 27th, to which Mr. Brenon replied that time would be all right or a little later. At that interview the only reference to compensation of plaintiff or the number of pictures in which he should appear was made by Brenon, who stated, ‘I am sure we will get together.’

November 2d Miss Jacobs wrote plaintiff in substance that she had again talked with Mr. Brenon and his directors, and renewed the offer of Mr. Brenon as to the price that had theretofore been rejected by plaintiff, to which letter plaintiff on November 4th replied that he had met Mr. Brenon's directors more than halfway, and expressed regret ‘that the thing has to fall through.’ The letter was forwarded by Miss Jacobs to Mr. Brenon. On November 11th Miss Jacobs addressed a further letter to plaintiff at Boston where he was then engaged in which she stated she had succeeded in getting Mr. Brenon to increase his former offer for one picture and urged plaintiff to accept, stating:

‘If during your stay in New York you could fix this up I will go on to Boston to see you and close the matter.’

November 13th the plaintiff replied to the letter of Miss Jacobs of November 11th, and therein stated:

‘Provided that minor conditions are agreed upon between us-in that I think there will be no difficulty-I agree to the figure mentioned in your letter * * * for one picture. According to my present arrangement I open in New York on the 27th of this month. I see no reason why I should not make an early start with Mr. Brenon. I do not know how these contracts are made. I suppose you send me an agreement which I go through with my lawyer. In that case you had better delay your visit to Boston until after you have sent me the contract. * * *’

On November 14th Miss Jacobs in writing to the plaintiff, and speaking of Mr. Brenon, among other subjects, said:

‘I will see him during the day and will give him your letter so that the necessary papers can be sent you.’

The letter of plaintiff was transmitted to Mr. Brenon, and on November 21st Mr. Brenon addressed a letter to plaintiff, in which after acknowledging the letter to Miss Jacobs and the decision of the plaintiff to accept the offer, stated:

‘A great deal depends naturally on the scenario which we shall produce, so I think it is best for us to wait until you come to New York before drawing up any contracts. We will then go into all details as to opening date, etc. Will you notify me when you expect to be in New York, and I will call upon you as soon as possible after your arrival.’

The plaintiff did not return to New York until February 27th following, and he did not thereafter meet Mr. Brenon. Upon the trial,...