Montana Amusement Securities Co. v. Goldwyn Distributing Corporation

• Decision Date: 24 June 1919
• Docket Number: 4358.
• Citation: 182 P. 119,56 Mont. 215
• Parties: MONTANA AMUSEMENT SECURITIES CO. et al. v. GOLDWYN DISTRIBUTING CORPORATION et al.
• Court: Montana Supreme Court

182 P. 119

56 Mont. 215

MONTANA AMUSEMENT SECURITIES CO. et al. v. GOLDWYN DISTRIBUTING CORPORATION et al.

No. 4358.

Supreme Court of Montana

June 24, 1919

Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.

Action by the Montana Amusement Securities Company, a corporation and American Theater, against the Goldwyn Distributing Corporation and others. From a judgment and order vacating a temporary injunction, sustaining a demurrer to the complaint and dismissing the action, the first-named plaintiff appeals. Affirmed.

Frank & Gaines, of Butte, for appellant.

Wm Meyer, F. C. Fluent, and Chas. R. Leonard, all of Butte, for respondents.

COOPER J.

Appeals from a judgment dismissing plaintiffs' suit instituted for the purpose of securing an injunction, and from an order dissolving a temporary restraining order issued upon the filing of the complaint.

In brief, the complaint alleges: That the plaintiff Montana Amusement Securities Company, a Montana corporation, "is engaged in operating motion picture theaters in the city of Butte, county of Silver Bow, state of Montana; that the plaintiff American Theater is a theater doing business as a motion picture theater in said city and is one of the theaters owned, controlled, and operated by the plaintiff company;" that the defendant Goldwyn Distributing Corporation, of New York, is engaged in the business of furnishing and distributing to motion picture theaters throughout the country photographic films "whereby are displayed the representations by famous actors of their powers, abilities, and accomplishments" for the purpose of being reproduced by such theaters; that the defendant Ansonia Amusement Company, a Montana corporation, is engaged in operating motion picture theaters in the city of Butte and that the defendant Ansonia Theater is one of the houses owned and operated by it; that on August 24, 1918, the Goldwyn Company entered into a written contract with the plaintiff American Theater by the terms of which such theater was given the right to first display in said city certain films depicting the acting of a certain actress, including one entitled "Hell Cat"; that the films thus contracted for are of special worth, value, and desirability because they are "reproductions of the acting ability and accomplishments of the actress photographed thereon and therein and of their charm and personality, which ability, charm, and personality render said films of especial value, and worth," and "that by reason of the making and execution of the contract plaintiff acquired a valuable and especial property right incapable of duplication"; that on September 2, 1918, the defendants entered into some agreement, "the precise terms whereof are to plaintiffs unknown," but the effect of which was that the Goldwyn Company should refuse to carry out its obligations under the contract with plaintiffs and furnish its codefendants the film reproductions of the acting of the actress mentioned, for exhibition in the city of Butte; that, though advised of the existing contract and warned not to attempt to exhibit said films, the Ansonia Company and Theater have advertised, are exhibiting, and will continue to exhibit the said moving picture known as "Hell Cat" unless restrained; that the acts of defendants are resulting in great and irreparable injury and damage to plaintiffs, etc. The prayer was for a temporary restraining order pending the hearing of an order to show cause why a permanent injunction should not issue and permanent relief after said hearing.

The contract, made a part of the complaint as Exhibit A, shows the parties to it to be the "Goldwyn Distributing Corporation, hereinafter referred to as the 'Exchange,' and American Theater owner, lessee of and operating the American Theater, at No. 666-street, in the city of Butte *** hereinafter referred to as the 'Exhibitor."' It was signed by the New York corporation through its manager, and by the "American Theater, Exhibitor, by F. T. Bailey." The name of the Montana Amusement Securities Company, one of plaintiffs does not anywhere appear in it.

The district court issued a temporary restraining order on December 30, 1918. The defendants, on January 4th following, interposed a demurrer on the grounds that the complaint did not state facts sufficient to constitute a cause of action in favor of the plaintiffs or either of them, and that plaintiff American Theater had no legal capacity to sue, "in that it does not appear that it is a natural or artificial person recognized by the law or a legal entity recognized by the law." It also moved to quash the order to show cause why an injunction should not issue and to dissolve the temporary restraining order for the reason, among others, that the Montana Amusement Securities Company was not a party to the contract, has no interest in the controversy, and therefore no right to maintain the action. On January 28th the demurrer and motion were sustained, and the action was dismissed. Hence the appeals.

The position of counsel for appellant, as disclosed by their brief, is that-

"Exhibit A to the complaint discloses that the paper was signed, 'American Theater, by F. T. Bailey,' and was executed on behalf of respondent Goldwyn Distributing Corporation. The first matter to be determined is whether the writing thus signed became a contract capable of enforcement. If it did, the next question for determination is whether appellant, by its complaint, exhibited a right in itself to enforce the contract. *** That the Montana Amusement Securities Company is not named as a party to the instrument, or as principal for whom Bailey acted, is not fatal, for our statutes clearly recognize that a principal may be bound, though not named and may equally enforce rights under a contract, though not named."

The logic of this contention must be tested by the language of the contract and the averments of the complaint. The legal effect of the instrument clearly is that "the exchange," the Goldwyn Company, and the exhibitor, F. A Bailey, for the American Theater, are mutually bound to the performance of certain acts, the former to furnish, and the latter to produce,...