Broadway Photoplay Co. v. World Film Corp.

• Decision Date: 07 January 1919
• Citation: 121 N.E. 756,225 N.Y. 104
• Parties: BROADWAY PHOTOPLAY CO. v. WORLD FILM CORPORATION.
• Court: New York Court of Appeals Court of Appeals

225 N.Y. 104

121 N.E. 756

BROADWAY PHOTOPLAY CO.

v.WORLD FILM CORPORATION.

Court of Appeals of New York.

Jan. 7, 1919.

Appeal from Supreme Court, Appellate Division, First Department.

Action by the Broadway Photoplay Company against the World Film Corporation. From a judgment of the Appellate Division of the Supreme Court for the First Department (175 App. Div. 980,162 N. Y. Supp. 1112), affirming the judgment of the Trial Term entered on the verdict of a jury in favor of plaintiff, defendant appeals. Reversed, and new trial granted.

I.

Maurice Wormser, of New York City, for appellant.

S. C. Sugarman, for New York City, for respondent.

CARDOZO, J.

The action is for breach of contract. For a valuable consideration, the defendant undertook to supply the plaintiff with motion picture films one day in each week for 52 weeks beginning October 1, 1914. The pictures were to be exhibited at the plaintiff's theater. They were to be of the order known as ‘feature’ pictures. The line of division between feature pictures and others may not be easy to define, yet in practice those engaged in the business seem to have little difficulty in drawing it. But the plaintiff was not only to have feature pictures. It was to have the first run of them. This means that the pictures must not have been exhibited before in the immediate locality. The locality is described as the neighborhood of Broadway from Ninety-Sixth street to One Hundred and Eighth street in the city of New York. The contract was made in September, 1914. It was no sooner made than broken. The defendant found in one of the plaintiff's competitors a more profitable exhibitor. It refused to supply the plaintiff with first-run pictures. If offered to supply feature pictures, but they were of the second and later runs. They had already been exhibited at other theaters in the neighborhood. The plaintiff attempted to procure first-run pictures elsewhere, but with slight success. It has sued to recover profits alleged to have been lost, and a verdict for $4,500 has been unanimously affirmed.

We think there was error fatal to the judgment in rulings upon evidence received as proof of damage.

[1] The plaintiff was permitted to prove its receipts from other pictures, supplied by other producers, before the breach and after. This evidence was received under objection and exception, but subject to motion to strike out. The motion was later made, with adequate statement of the grounds, and an exception was noted to the denial. The point is fairly raised, and we must determine whether it was error to permit the evidence to stand. The plaintiff's theory is that a jury, analyzing its receipts, would discover uniformities and averages from which the profits of first-run pictures might be approximately measured. Little depends, it is said, upon the ultimate popularity of the pictures as disclosed by later runs. The bait of novelty suffices at the outset. Later runs may involve appeals to experience, but first runs are appeals to faith. The public accepts the offering upon the credit of the producer. Herein, it is argued, is the distinction between the moving picture and the drama. No one can compute in advance the earnings of unknown plays. Bernstein v. Meech, 130 N. Y. 354, 29 N. E. 255. But the argument is that the good will built up by a producer will give to the first productions of his pictures a uniform return. The certainty or uncertainty of the damages must vary, it is said, with the proved conditions of the business.

It is true, of course, that the conditions of a business affect the possibilities of proof and thus the measure of recovery. No formula can be framed, regardless of experience, to tell us in advance when approximate certainty may be attained. The rule of damages must give true expression to the realities of life. We do not need to determine what the plaintiff's rights would be if it were able to establish the uniformities which it asserts. The sufficient answer is that it has failed utterly to establish them. It did succeed in showing that ‘feature’ pictures were more profitable than others. That is, indeed, the proposition to which the bulk of its evidence was directed. The difference, however, was not constant or even approximately constant. It was subject to the widest fluctuation. Quality counts, it seems, with pictures as with plays. But the plaintiff did not prove its damages by proving the superiority of feature pictures. The defendant was ready to supply feature pictures. They could have been obtained also, for all the evidence shows, from others. The comparison must be between feature pictures of the first run and feature pictures of later runs. The jury were so charged. They were charged that the plaintiff was ‘limited to the difference in value between first-run...