Goodwin v. Cabot Amusement Co.

• Decision Date: 15 March 1930
• Citation: 149 A. 574
• Court: Maine Supreme Court
• Parties: GOODWIN v. CABOT AMUSEMENT CO.

149 A. 574

GOODWIN

v. CABOT AMUSEMENT CO.

Supreme Judicial Court of Maine.

March 15, 1930.

Report from Supreme Judicial Court, Cumberland County.

Action by Joseph M. Goodwin, executor of the estate of Harry C. Gustin, deceased, against the Cabot Amusement Company. On report.

Judgment for plaintiff.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, and FARRINGTON, JJ.

Ellis E. Aldrich, of Brunswick, for plaintiff.

Berman & Berman, of Portland, for defendant.

FARRINGTON, J.

The case comes up on report The declaration is in covenant. The facts are as follows:

The defendant corporation was in control under lease of two theaters at Brunswick, Me., known as the Pastime Theater and Cumberland Theater. On June 13, 1917, it entered into a written agreement under seal with one Andrew P. Bibber, under the terms of which Bibber was to manage and operate the theaters for and during the remainder of the time mentioned in the respective leases, and for compensation he was to receive onehalf the net profits, and was also to share one-half the net losses. The profit, or loss, was to be paid on the first day of each month.

On June 10, 1918, Bibber, having in the meantime managed the theaters as provided in the agreement, and having been paid according to the terms thereof, assigned, under seal, with the consent and approval of the defendant, his rights in the agreement to one Maxcy Hill, who in turn assigned, under seal, his rights in the agreement to Harry E. Gustin, the decedent, whose estate brings this action. The assignment to Gustin was also made with the consent and approval of the defendant. Gustin thereafter managed the two theaters in accordance with the provisions of the agreement of June 13, 1917, from June 2, 1919, until November 22, 1920, when he died. From June 2, 1919, to November 22, 1926, the defendant paid Gustin on or about the first of each month one-half of the net profits under the agreement of June 13, 1917.

Prior to his death, Gustin, on May 18, 1926, took in his own name a lease of the Pastime Theater heretofore mentioned, the lease giving consent that the lessee might assign or sublet to Cabot Amusement Company, or Maine & New Hampshire Theaters Company. Under its terms this lease, dated May 18, 1926, was for a term of ten years from May 1, 1927.

On June 9, 1926, what is styled an "Additional Agreement to the agreement of June 13, 1927, * * *" was entered into, under seal, between Gustin and the defendant, under the terms of which the agreement of June 13, 1917, was "confirmed in the terms thereof," subject to the following modifications or additions:

"The said Harry E. Gustin is to manage, for a period of ten years from May 1, 1927, the theatres mentioned in the said agreement above referred to, or any other theater or theaters which the party of the first part, its successors or assigns, may build, lease or operate during said period, in Brunswick, upon the same terms and conditions, as to compensation and method of paying the same, and under the general direction of William P. Gray, representing the party of the first part, as set forth in the said agreement of June 13, 1917, herein mentioned.

"In the event that the party of the second part should die before the expiration of the period herein provided for, it is agreed by the parties hereto that the estate of the party of the second part shall receive from the party of the first part a sum equal to twenty-five per cent (25%) of the profits from said theaters for each month from the date of the death of the said party of the second part to the date of the expiration of the period covered by this agreement.

"If the party of the second part should, during the term of this agreement, become incapacitated, he shall receive the same payment as is provided for above in the event of his death.

"Any manager who may be employed by the party of the first part to take charge of the theaters herein mentioned, in the event of the death of the party of the second part or of his becoming incapacitated, shall not receive a salary in excess of Fifty Dollars ($50) per week without the consent of both of the parties hereto or their representatives."

On June 12, 1926, Gustin assigned, under seal, the lease of May 18, 1926, to Cabot Amusement Company.

Gustin died November 22, 1926, and his will was admitted to probate on January 4, 1927, and letters testamentary were duly issued at the February term of the probate court for Cumberland county to Joseph M. Goodwin, executor named therein, and plaintiff in this case.

From December 1, 1926, to November 1, 1927, on or about the first of each month Goodwin, as executor of the estate of Harry E. Gustin, received 25 per cent. of the monthly net profits of the two theaters.

Following November 1, 1927, payment was not made by the defendant to the Gustin estate of the 25 per cent of the net profits earned in the two theaters for November, 1927, December, 1927, and January and February, 1928, and suit was brought by the executor, declaring in covenant, to recover the payments due for those months. By agreement of parties the hearing was before a single justice without a jury at the September, 1928, term of the Supreme Judicial Court in Androscoggin county. The only question raised was that of alleged overpayments sufficient to more than cover the sum claimed in the writ. The net profits for the four months sued for, November, December, January, and February, were $7,436.17 of which one-quarter, or $1,859.04, was claimed to be due the estate. The sitting justice in his finding said: "No evidence controverting any of these matters of fact was offered by the defendant who agreed that, for the purposes of this case only, the validity of the contracts set up by the plaintiff and their binding effect on defendant, might be assumed. In view of this stipulation and in the light of the evidence offered, I find the plaintiff is entitled to judgment for the amount claimed with interest from the date of his writ."

The judgment was paid to Goodwin as executor of the Gustin estate and was fully satisfied. This covered everything up to March 1, 1928.

Following March 1, 1928, the defendant although continuing to operate the theaters, and although receiving profits, and although sending to the Gustin estate monthly reports of the business and earnings of the two theaters from the date of Gustin's death to the time of the hearing on the first case in September, 1928, made no further payments of one-fourth of the net profits to the Gustin estate, on the first day of each month or at any other time, and by writ dated December 5, 1928, the present suit declaring in covenant was brought to recover payments claimed to be due from the defendant to the Gustin estate for the months of March, April, May, June, July, August, September, October, and November, 1928. The writ was returnable in Cumberland county and by agreement the case comes up on report.

As a part of the stipulations it is agreed that the total net profits for the monthly periods covered by the writ were $12,864.96, one-quarter of which, $3,216.24, being the amount for which plaintiff is entitled to judgment, if recovery can be had under this action.

The defendant maintains, in effect, that the plaintiff cannot recover for any breach (1) because the additional agreement between Gustin and the defendant was without sufficient legal consideration; (2) that if there were sufficient consideration at the time of the execution of the additional agreement, the defendant is relieved from liability because of a total failure of consideration; and (3) that the plaintiff, having brought an action prior to the present suit, and having recovered a judgment which has been fully satisfied, is now barred from further recovery because the matter is res adjudicata.

Taking in order the claims' of the defendant, the court is of the opinion, as to 1, that the mutual obligations assumed by the parties at the time of the making of the additional agreement on June 9, 1926, which modified the agreement of June 13, 1917, constituted sufficient legal consideration. Oscar Schlegel Mfg. Co. v. Peter Cooper's Glue Factory, 231 N. Y. 459, 132 N. E. 148, 24 A. L. R. 1348. It must also be borne in mind that the agreement was under seal, and therefore consideration is presumed. Tucker v. Smith, 4 Me. (4 Greenl.) 419; Neil v. Tenney, 42 Me. 324; Wing v. Chase, 35 Me. 265; Augusta Bank v. Hamblet, 35 Me. p. 495; Roth v. Adams, 185 Mass. 341, 70 N. E. 445; Fletcher v. Fletcher, 191 Mass. 211, 77 N. E. 758; Childs v. Barnum, 11 Barb. (N. Y.) 14; Barrett v. Carden, 65 Vt 431, 26 A. 530, 36 Am. St Rep. 876.

In absence of any evidence or of any attempt to produce evidence to overcome this presumption, it seems unnecessary to give further consideration to this point. The fact that it was under seal leaves nothing further to be said.

Point 2 as claimed by defendant is that if there were sufficient consideration at the time of the execution of the additional agreement of June 9, 1926, the defendant is relieved of liability because of a total failure of consideration due to the death of Harry E. Gustin, which occurred before Gustin was to begin, on May 1, 1927, the time the new lease came into force, his duties under the additional agreement.

At this point again it must be remembered that the agreement was under seal. A claim of failure of consideration is no more potent than a claim of no consideration in removing the legal effect of the presence of the seals on the agreement. We therefore find that the two agreements constituted one valid agreement.

No question is raised in this case, nor could there be, but that two parties can make a valid contract or agreement like the one before this court. The presence of the seal makes unnecessary any inquiry into what may have been the impelling reason or consideration which resulted in a contract providing for payments of money at stated...