Lord v. Pathe News

• Decision Date: 13 June 1938
• Docket Number: No. 250.,250.
• Citation: 97 F.2d 508
• Parties: LORD v. PATHE NEWS, Inc.
• Court: U.S. Court of Appeals — Second Circuit

97 F.2d 508 (1938)

LORD v. PATHE NEWS, Inc.

No. 250.

Circuit Court of Appeals, Second Circuit.

June 13, 1938.

Phillips & Nizer, of New York City (Louis Nizer, Arthur B. Krim, Seymour M. Peyser, and Sidney Freidberg, all of New York City, of counsel), for appellant.

Cravath, de Gersdorff, Swaine & Wood, of New York City (Wm. D. Whitney and Harold R. Medina, Jr., both of New York City, of counsel), for appellee.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

SWAN, Circuit Judge.

This action, begun in a state court, was removed to the district court on the ground of diverse citizenship. It seeks to recover damages for non-performance by Pathe News, Inc., of a contract with the plaintiff. Before the plaintiff had completed his proof the trial judge suggested that the defendant's counsel move for a dismissal. Such a motion was then made and granted. The trial judge thought that the contract was too indefinite to be enforceable. The correctness of this ruling is the first question to be considered.

The plaintiff is a radio and motion picture actor who was widely known in 1932 for his radio characterization of the role of "Seth Parker." In September of that year he purchased the four-masted schooner "Georgette" and set about preparing it for a cruise around the world. He conceived the plan of keeping himself before his radio and motion picture admirers by broadcasting from strange and interesting places and by sending back motion pictures for exhibition during the progress of the cruise; and the cost of the cruise was to be diminished by soliciting supplies and equipment from manufacturers in exchange for the privilege of advertising that their products had been used exclusively on the expedition. In the summer of 1933 he discussed the plan with Mr. Courtland Smith, the president of Pathe News, and a written agreement,¹ drawn up by Mr. Smith, was executed by the parties. Thereafter Mr. Lord completed reconstruction of the vessel, obtained the installation of a short wave broadcasting equipment, successfully solicited nearly $100,000 worth of merchandise, and arranged to publicize the expedition by a cruise along the Atlantic Coast, with broadcasts sponsored by the Frigidaire Corporation, and with stops at various ports, where thousands of persons visited the vessel and public dinners and honors were tendered to Mr. Lord. With an incredible amount of ballyhoo the expedition thus got under way. When the vessel reached New York in December of 1933, Mr. Lord requested that the motion picture equipment, which Pathe had agreed to provide, be put aboard and that the three men to be furnished by Pathe prepare to join the schooner. By letter dated January 4, 1934, Pathe refused to perform its part of the contract because of Lord's alleged failure to start the cruise during the month of September, 1933. Mr. Lord then employed three other men to take the pictures. The pictures they took were a complete failure and were never exhibited. The damages sued for include the expenses incurred by the plaintiff in supplying motion picture equipment and film and in employing a supervisor of production, a camera man and a sound engineer in lieu of those agreed to be furnished by the defendant.

We think the written agreement of July 26, 1933 sets forth the obligations of the parties with sufficient definiteness to be a valid contract. The plaintiff was to provide quarters, rations and free transportation for three men on a cruise of approximately eighteen months, one of the men to be in charge of making motion pictures, one a camera man, and one a sound engineer. The defendant was to supply these men, that is, pay their wages, and to furnish equipment and film for making pictures. It was agreed that expenses incurred on land in making pictures should be divided equally, and any profits from showing them be similarly shared. As to the amount of expenses to be incurred on land in making pictures, both parties were content to put themselves into the hands of the defendant's employee, Begg. He was to "have charge of the making of the motion pictures." This gave him discretion as to what to photograph and how much to spend upon a picture, but he was bound to use his judgment in good faith to advance the common business. In this respect the contract was at least as definite as the familiar "satisfaction" contract. See Am.Law Inst., Contracts, sec. 265. Nor was Begg's discretion left wholly without bounds; the "addition" provision specified a minimum of thirteen shorts and one feature picture, and the general character of the pictures to be taken was restricted by the very nature of the contemplated expedition to strange and out-of-the-way places. In Anderson v. Blair, 202 Ala. 209, at page 213, 80 So. 31, at page 35, the court said: "It may be said, no doubt, of the great majority of contracts of joint adventure and...