Speelman v. Pascal
| Decision Date | 16 November 1961 |
| Citation | 10 N.Y.2d 313,222 N.Y.S.2d 324,178 N.E.2d 723 |
| Parties | , 178 N.E.2d 723, 131 U.S.P.Q. 489 Marianne Z. SPEELMAN, Respondent, v. Valerie PASCAL, as Administratrix with the Will Annexed of the Estate of Gabriel Pascal, Deceased, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Frank Delaney, New York City, for appellant.
Frederick R. Adler, Martin D. Jacobs and Leonard M. Leiman, New York City, for respondent.
Gabriel Pascal, defendant's intestate who died in 1954, had been for many years a theatrical producer. In 1952 an English corporation named Gabriel Pascal Enterprises, Ltd., of whose 100 shares Gabriel Pascal owned 98, made an agreement with the English Public Trustee who represented the estate of George Bernard Shaw. This agreement granted to Gabriel Pascal Enterprises, Ltd., the exclusive world rights to prepare and produce a musical play to be based on Shaw's play 'Pygmalion' and a motion picture version of the musical play. The agreement recited, as was the fact, that the licensee owned a film scenario written by Pascal and based on 'Pygmalion'. In fact Pascal had, some time previously, produced a nonmusical movie version of 'Pygmalion' under rights obtained by Pascal from George Bernard Shaw during the latter's lifetime. The 1952 agreement required the licensee corporation to pay the Shaw estate an initial advance and thereafter to pay the Shaw estate 3% of the gross receipts of the musical play and musical movie with a provision that the license was to terminate if within certain fixed periods the licensee did not arrange with Lerner and Loewe or other similarly well-known composers to write the musical play and arrange to produce it. Before Pascal's death in July, 1954, he had made a number of unsuccessful efforts to get the musical written and produced and it was not until after his death that arrangements were made, through a New York bank as temporary administrator of his estate, for the writing and production of the highly successful 'My Fair Lady'. Meanwhile, on February 22, 1954, at a time when the license from the Shaw estate still had two years to run, Gabriel Pascal, who died four and a half months later, wrote, signed and delivered to plaintiff a document as follows:
'Dear Miss Kingman
'As soon as the contracts are signed, I will send a copy of this letter to my lawyer, Edwin Davies, in London, and he will confirm to you this arrangement in a legal form.
'This participation in my shares of profits is a present to you, in recognition for your loyal work for me as my Executive Secretary.
'Very sincerely yours,
'Gabriel Pascal.'
The question in this lawsuit is: Did the delivery of this paper constitute a valid, complete, present gift to plaintiff by way of assignment of a share in future royalties when and if collected from the exhibition of the musical stage version and film version of 'Pygmalion'? A consideration was, of course, unnecessary (Personal Property Law, Consol.Laws, c. 41, § 33, subd. 4).
In pertinent parts the judgment appealed from declares that plaintiff is entitled to receive the percentages set out in the 1954 agreement, requires defendant to render plaintiff accountings from time to time of all moneys received from the musical play and the firm version, and orders defendant to make the payments required by the agreement. The basic grant from the Shaw estate was to Gabriel Pascal Enterprises, Ltd., a corporation, whereas the document on which plaintiff sues is signed by Gabriel Pascal individually and defendant makes much of this, arguing that Gabriel Pascal, as distinguished from his corporation, owned no rights when he delivered the 1954 document to plaintiff. However, no such point was made in the courts below and no mention of it is made in the motion papers, affidavits, etc., on which plaintiff was granted summary judgment. It is apparent that all concerned in these transactions disregarded any distinction between Pascal's corporation in which he owned practically all the stock, and Pascal individually, as is demonstrated by the agreement between Lerner-Loewe-Levin, writers and producers of 'My Fair Lady', and Gabriel Pascal's estate. Actually, all this makes little difference since what Pascal assigned to plaintiff was a percentage from Pascal's 'shares of profits' and this would cover direct collections or collections through his corporation.
Defendant emphasizes also the use of the word 'profits' in the February, 1954 letter from Pascal to plaintiff, and suggests that this means that plaintiff was not to get a percentage of Pascal's gross royalties but a percentage of some 'profits' remaining after deduction of expenses. Again, the answer is that no such point was made in the proceedings below or in this record and everyone apparently assumed, at least until the case reached this court, that what the defendant Pascal estate will get from the musical play and movie is royalties collectible in full under the agreements pursuant to which 'My Fair Lady' has been and will be produced. In this same connection defendant talks of possible creditors of the Pascal corporation and inquires as to what provision would be made for them if plaintiff were to get her percentages of the full royalties. This, too, is an afterthought and no such matter was litigated below.
The only real question is as to whether the 1954 letter above quoted operated to transfer to plaintiff an enforcible right to the described percentages of the royalties to accrue to Pascal on the production of a stage or film version of a musical play based on 'Pygmalion'. We see no...
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