Touhy v. Twentieth Century-Fox Film Corp.
Decision Date | 05 March 1979 |
Docket Number | No. 78-1078,CENTURY-FOX,78-1078 |
Citation | 69 Ill.App.3d 508,387 N.E.2d 862,26 Ill.Dec. 32 |
Court | United States Appellate Court of Illinois |
Parties | , 26 Ill.Dec. 32 Roger TOUHY, Individually and d/b/a Administrator of the Estate of Roger Touhy, Deceased, Plaintiff-Appellant, v. TWENTIETHFILM CORPORATION and Balaban & Katz Corporation, Defendants-Appellees. |
Daniel P. Nagle, Chicago, for plaintiff-appellant.
Bergstrom, Davis & Teeple, Chicago, for defendant-appellee Twentieth Century-Fox Film Corp.
Plaintiff, Roger Touhy, individually and as Administrator of the Estate of Roger Touhy, deceased, brought an action against Twentieth Century-Fox Film Corporation and Balaban & Katz Corporation, for breach of contract based on a 1949 release and covenant not to sue executed by the late Roger Touhy. The trial court granted defendants' motion to strike and dismiss plaintiff's complaint and entered judgment for defendants. Plaintiff appeals from this order only with reference to Twentieth Century-Fox Film Corporation (defendant).
The issues presented on appeal are: (1) whether the 1949 release contains a covenant or promise on the part of defendant that it will not sell or distribute the film "Roger Touhy, Gangster" in the continental United States; (2) whether defendant is bound by a release that it did not sign; (3) whether this action is barred by the Statute of Frauds; and (4) whether this action is barred by res judicata or collateral estoppel.
In 1944, plaintiff's father (also named Roger Touhy) filed an action in the United States District Court entitled Roger Touhy v. Twentieth Century-Fox Film Corporation, N.D.Ill. No. 44C 942. Touhy alleged that he was defamed by the film "Roger Touhy, Gangster". That case was settled by payment of $15,000 to plaintiff's father by the defendant and a codefendant, and the execution by plaintiff's father of a release which provided:
On November 1, 1949, the district court entered its order which disposed of that case in this language:
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the court that the amended complaint herein be, and the same is hereby dismissed without costs, the matter thereof having been fully released and discharged."
Plaintiff's father, Roger Touhy, died in 1959. In July of 1974, plaintiff filed suit in the United States District Court for the Northern District of Illinois against Columbia Broadcasting System. He alleged that under the provisions of the settlement agreement of 1949, Twentieth Century-Fox (defendant) had agreed that the film was never to be shown but was to be destroyed. Plaintiff prayed injunctional and other relief. In those proceedings, plaintiff made it clear that he was suing Columbia Broadcasting System as a distributee or licensee of Twentieth Century-Fox (defendant here) and that he sought to enforce the release as an affirmative contractual obligation of said defendant and hence derivatively of CBS. The district court denied the plaintiff's motion for an injunction on the ground that plaintiff had failed to demonstrate any irreparable injury which would overcome the right of CBS to freedom of expression under the first amendment. The court then also suggested that it would retain the matter and set a briefing schedule on the issue of damages. Plaintiff rejected the court's proposal...
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