Famous Players Film Co. of New England v. Salomon

• Decision Date: 03 December 1918
• Citation: 106 A. 282
• Parties: FAMOUS PLAYERS FILM CO. OF NEW ENGLAND v. SALOMON.
• Court: New Hampshire Supreme Court

106 A. 282

FAMOUS PLAYERS FILM CO. OF NEW ENGLAND

v. SALOMON.

Supreme Court of New Hampshire. Coos.

Dec. 3, 1918.

Transferred from Superior Court, Coos County; Sawyer, Judge.

Action by the Famous Players Film Company of New England against Jacob M. Salomon. On denial of plaintiff's motions for directed verdict, it excepted. Transferred from the superior court. Exceptions overruled.

Plea of law to recover $750 for a moving picture film. Trial by jury and verdict for the defendant. The plaintiff made a contract with the defendant to furnish him moving picture films. The fourth clause of the contract, the only part material to this action, was as follows:

"It is understood that no title or ownership to any of the films, reels, or personal property of any description shall pass under this agreement, but shall remain unaffected thereby, and that the exhibitor shall receive hereunder only the rights of exhibiting the same in the theater or place, and on the day or days specified in the application, and not otherwise, and shall have no other rights therein whatever; and all property furnished hereunder shall be returned in the same condition as received by the exhibitor, who shall be liable for any and all damage to any property referred to, except for necessary wear. In the event that the films are injured in any way the exhibitor agrees to pay promptly fifteen cents for each and every linear foot of said motion picture film which may be required to restore production to as good condition as before."

A film was shipped by the plaintiff and received by the defendant under this eontract. While the film was being used by the defendant in his theater, it caught fire and? was totally destroyed. At the close of the plaintiff's evidence, and again at the close of all the evidence, the plaintiff moved for a directed verdict for $750. The motions were denied, and the plaintiff excepted.

Subject to exception the defendant introduced a bill which the plaintiff had rendered the defendant for $400 for the film that was destroyed. An exception was taken to the charge of the court relating to damages.

E. M. Bowker, of Whitefield, and William C. Eaton, of Portland, Me., for plaintiff.

Drew, Shurtleff, Morris & Oakes, of Lancaster, and Arthur C. Aldrich, of Groveton, for defendant.

PLUMMER, J. The plaintiff's motion for a directed verdict at the close of its evidence was based upon the ground that the defendant's liability was absolute under clause 4 of the contract; it having been established that the film had bean destroyed while it was in the defendant's possession. The motion for a directed verdict at the conclusion of all the evidence was based upon the same ground; also that the evidence did not warrant a verdict for the defendant. These motions raise the question whether the defendant under his contract with the plaintiff can make any defense to this action to recover the price stipulated in the...