Orbach v. Paramount Pictures Corp.

Citation233 Mass. 281,123 N.E. 669
PartiesORBACH v. PARAMOUNT PICTURES CORPORATION.
Decision Date25 June 1919
CourtUnited States State Supreme Judicial Court of Massachusetts

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Middlesex County; Loranus E. Hitchcock, Judge.

Action by Sanuel Orbach against the Paramount Pictures Corporation. Verdict for plaintiff, and defendant excepts. Exceptions overruled.Defendant's refused requests for rulings follow:

(1) On all the evidence the defendant is entitled to a verdict.

(2) The plaintiff has not established that a contract had been approved and executed by an authorized officer of the defendant company.

(6) If a contract for the delivery of motion pictures is for a given period but could be canceled at any time, by either party, which cancellation to take effect after the delivery of two pictures, then the value of the contract is limited to two pictures.

(7) If the jury shall find that the contracts between the parties had been completed, they shall find that the same were for the delivery of two pictures under each contract which by their terms contained the option of cancellation by either party after the delivery of two pictures.

(8) If the jury finds that the contracts were executed by the defendant, then notice by the defendant to the plaintiff on June 27, 1917, that his contracts had been rejected for the delivery of pictures must be construed as a limitation of the contracts to the delivery of two pictures only under each contract, and the defendant would be liable only for the nondelivery of two pictures for three days each under each contract.

(9) If the jury shall find that the contracts were executed by the defendant company, then the damages, if any, must be limited to the failure to deliver the pictures of the several stars in the aggregate for 36 days or 6 weeks.

(12) If the jury finds that the contracts had been executed by the defendant, then the fact that the plaintiff brought suit on September 14, 1917, shows an admission on the part of the plaintiff that the defendant had exercised its option to limit its contract to two pictures.

(17) If the jury finds that the contracts had been completed between the parties, then there in no satisfactory basis of comparison on which to reckon the profits, if any, which might have been received by the plaintiff if the defendant had fulfilled the contract.

(18) There are too many elements of uncertainty and conjecture to make it safe to rely on evidence such as the plaintiff offered.

(21) If on all the evidence the jury shall find that there was a contract between the plaintiff and defendant, then the plaintiff is entitled to nominal damages only for the breach of the same.

Qua, Howard & Rogers, Albert S. Howard, and Bennett Silverblatt, all of Lowell, for plaintiff.

Bates, Nay, Abbott & Dane and Max L. Levenson, all of Boston, for defendant.

DE COURCY, J.

The plaintiff, who owned and operated the Owl Theater in Lowell, seeks to recover damages from the defendant, a distributor of motion picture films, for breach of six written contracts. Under these agreements the defendant, during the year beginning September 1, 1917, was to release a certain number of films or plays, in which designated well-known ‘stars' enacted the leading rôle, and to license the plaintiff to exhibit one copy of the films at his theater for three successive days, at a specified price. The defendant now concedes that there was evidence which, if believed, warranted the jury in finding that the alleged contracts were executed and delivered. No films were actually furnished, the defendant contending at the trial that no contract was executed. This disposes of the first and second requests for rulings, dealing with the issue of liability.

While admitting that the plaintiff is entitled to prevail, the defendant strongly urges that the evidence of loss sustained by the plaintiff by reason of the breach of contract was too remote and speculative to sustain a verdict for more than nominal damages. The trial judge in instructing the jury as to the general rule applicable adopted the following language of this court in Lowrie v. Castle, 225 Mass. 37, 51, 113 N. E. 206, 210:

‘Prospective profits may be recovered in an appropriate action when the loss of them appears to have been the direct result of the wrong complained of and when they are capable of proof to a reasonable degree of certainty. They need not be susceptible of calculation with mathematical exactness, provided there is a sufficient foundation for a rational conclusion. * * * But such damages cannot be recovered when they are remote, speculative, hypothetical, and not within the realm of reasonable certainty.’

There was evidence that at the time when the defendant repudiated its contracts and refused to furnish the films which it controlled, and which were of moving picture ‘stars' especially popular with theatrical patrons, it was too late for the plaintiff to secure adequate substitutes for the coming theatrical year, and that as a natural result, and one presumably within the contemplation of the parties, the audiences attracted to the Owl Theater were diminished in number and the income correspondingly reduced. Speaking accurately, such loss would be the ordinary damage consequent on the defendant's failure to furnish the pictures as agreed, rather than a loss of ‘special profits.’

In proving the loss he sustained, the plaintiff offered evidence (1) of the net profits of his theater during the period involved, and (2) of what the net profits probably would have been during that period if the defendant had carried out its contracts. As to (1) he presented a detailed report of the gross receipts from September 1, 1917, until he sold out his theater in March, 1918, and it...

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19 cases
  • Eastern Paper & Box Co. v. Herz Mfg. Corp.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 30, 1948
    ...to the United, an event which did not occur. Revere v. Boston Copper Co., 15 Pick. 351, 361;Orbach v. Paramount Pictures Corporation, 233 Mass. 281, 286, 123 N.E. 669;Vitagraph, Inc., v. Park Theatre Co. of Boston, 249 Mass. 25, 144 N.E. 85; Williston, Contracts, Rev.Ed., § 1027A. Contracts......
  • Schatz v. Abbott Laboratories, Inc.
    • United States
    • United States Appellate Court of Illinois
    • March 5, 1971
    ...shown during the period at issue and to what extent such pictures were patronized in comparable theatres. Orbach v. Paramount Pictures Corporation, 233 Mass. 281, 123 N.E. 669. The record suggests that the trial court questioned the sufficiency of the evidence introduced, and that counsel s......
  • Narragansett Amusement Co. v. Riverside Park Amusement Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 30, 1927
    ...year, so there was a basis of actual experience. Nelson Theatre Co. v. Nelson, 216 Mass. 30, 102 N. E. 926, and Orbach v. Paramount Pictures Corp., 233 Mass. 281, 123 N. E. 669, were cases where damages were allowed for loss of prospective profits in connection with performances in theaters......
  • Hawes Office Systems, Inc. v. Wang Laboratories
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    • February 28, 1984
    ...had there been no breach of contract, e.g., Jacobs v. Cromwell, 216 Mass. 182, 103 N.E. 383, 384 (1913); Orbach v. Paramount Pictures Corp., 233 Mass. 281, 123 N.E. 669, 670-71 (1919); Barry, supra ("The amount of his agent's earnings during nine months under the first contract might well b......
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