Vitagraph, Inc. v. American Theatre Co.

• Decision Date: 19 September 1930
• Docket Number: 4924
• Citation: 291 P. 303,77 Utah 71
• Court: Utah Supreme Court
• Parties: VITAGRAPH, INC., v. AMERICAN THEATRE CO

291 P. 303

77 Utah 71

VITAGRAPH, INC., v. AMERICAN THEATRE CO

No. 4924

Supreme Court of Utah

September 19, 1930

Appeal from District Court, Third District, Salt Lake County; Chris Mathison, Judge.

Action by Vitagraph, Incorporated, against the American Theatre Company and another. Judgment for plaintiff, and the named defendant appeals.

AFFIRMED.

Allen T. Sanford, of Salt Lake City, for appellant.

J. M Carlson, of Salt Lake City, for respondent.

ELIAS HANSEN, J. CHERRY, C. J., and STRAUP, EPHRAIM HANSON, and FOLLAND, JJ., concur.

OPINION

ELIAS HANSEN, J.

The American Theatre Company prosecutes this appeal from a money judgment rendered against it and the Theatres Operating Company in favor of the plaintiff. The evidence is not brought here for review. The appeal is on the judgment roll. The defendant the Theatres Operating Company was served with summons. It did not answer the complaint or otherwise plead thereto and it does not appeal. By its assignments of error the appellant assails the complaint upon the ground that it does not state facts sufficient to constitute a cause of action. Appellant also assails the findings of fact upon the ground that they do not support the judgment. The findings of fact are substantially in the same language as the allegations of the complaint. The facts alleged in the complaint and found by the trial court in its written findings of fact so far as material to the determination of the questions here presented for review are these: On July 21, 1927, the appellant and respondent entered into a written contract by the terms of which the respondent leased to the appellant a picture film known as "When a man loves." On September 9, 1927, an amended written contract of lease of the picture film was entered into between appellant and respondent. By the terms of the amended contract of lease the appellant agreed to pay to the respondent "a sum equal to fifty per cent of the gross box-office receipts without any deductions whatsoever." On September 20, 1929, the appellant assigned its contract with the respondent for the lease of the picture film to the Theatres Operating Company. The respondent was a party to the contract of assignment. The contract of assignment reads as follows:

"Assignment of Contract.

Date Sept. 20, 1927.

"(Theatre) American

"(Street Address)

"(City and State) Salt Lake City Utah

"For value received, (hereinafter described as the Exhibitor) hereby assigns to Theatres Operating Company, a corporation (hereinafter described as the Purchaser) all the right, title and interest of the said Exhibitor in and to the contracts now in force between said Exhibitor and Vitagraph, Inc., for the exhibition of pictures described below at the theatre specified above, and all the right, title and interest of said Exhibitor in and to any deposit heretofore paid on account of the rental of the said pictures, and said Exhibitor hereby releases Vitagraph, Inc. from all further obligation to perform its said contracts with said Exhibitor.

"The Purchaser hereby assumes and agrees from the date hereof with Vitagraph, Inc. to perform each and all of the terms and provisions of said agreements above described, therein agreed to be performed by said Exhibitor.

"Vitagraph, Inc. consents to the foregoing assignment, and so long as the said Purchaser perform each and all of the terms and provisions of said agreement therein agreed to be performed by said Exhibitor in accord with the terms thereof, Vitagraph, Inc. agrees to perform the terms and conditions of said agreements therein agreed to be performed by it.

"It is mutually agreed that if the Purchaser shall fail or neglect to perform or shall breach any of the terms and provisions of any of said contracts hereby agreed to be performed by said Purchaser, the said Exhibitor as well as the said Purchaser shall be liable jointly and severally to Vitagraph, Inc. or its assigns for any loss occasioned thereby.

"List of Contracts

Date

Subject

Amount Date Subject Amount

When a Man Loves

As per amended contract dated

September 9, 1927 whereby the exhibitor

pays to the distributor fifty

percent (50%) of the gross boxoffice

receipts.

"Whereas, the Exhibitor herein has heretofore entered into a leasehold contract and supplemental agreement, in writing, with one P. O. Silvagni, said contract and supplemental agreement covering the American Theatre at Salt Lake City, Utah, and, whereas, the aforementioned leasehold contract and supplemental agreement, provides, among other things, that the said P. O. Silvagni, may, at his option, organize and create a corporation for the purpose of taking over and assuming the said P. O. Silvagni's rights, duties and obligations thereunder, and which leasehold contract and supplemental agreement further provides that the said Corporation (so organized) may, at the option of its Board of Directors, at any time within six months from the date of commencement of said leasehold contract and supplemental agreement, turn back the American Theatre to the Exhibitor herein and surrender to the Exhibitor herein its lease and the within film contracts, and whereas, the said P. O. Silvagni has, in fact, organized and created under the laws of the State of Utah a Corporation entitled Theatres Operating Company, and has in fact subrogated the said Corporation to all of his rights, duties, and obligations under the aforementioned leasehold contract and supplemental agreement, now, therefore, it is mutually understood and agreed by and between the Exhibitor herein, Theatres Operating Company and the Distributor herein, as follows, to-wit:

"1. In the event Theatres Operating Company herein shall exercise its option to and in fact surrender its lease to and terminate said leasehold contract and supplemental agreement with the Exhibitor herein, then and in such event, Theatres Operating Company herein shall be automatically relieved from any and all liability and obligations under the within contracts accruing from and after the date of such leasehold surrender, and it is further mutually understood and agreed by each and all of the Parties herein that, in such event, the primary liability of the Exhibitor herein, under the within contract, shall continue as heretofore.

"2. It is further mutually understood and agreed by each and all of the parties herein, that either, until such time as Theatres Operating Company exercises its option to and does in fact surrender its leasehold contract and supplemental agreement, or, in the event Theatres Operating Company shall not exercise its option as hereinabove stated, the Exhibitor herein shall assume the status of guarantor to Vitagraph, Incorporated, conditioned upon the proper, faithful, and complete fulfillment of each and all of the conditions of the within Film contracts.

"American Theatre Co.

"Fred Dahnken

"D. E. Schayer

[Signed] "F. C. Dahnken.

(Exhibitor)

"Theatres Operating Co., a Corporation

(Purchaser)

[Signed] "By P. O. Silvagni,

"Its President

"Vitagraph, Inc.

"By Thos. J. Christy

"(West Coast Sales Mgr.)"

The respondent furnished the film and fully performed its part of the contract. The film was exhibited by the Theatres Operating Company at the American Theatre in Salt Lake City, Utah, from the 26th day of October, 1927, to the 3d day of November, 1927, both dates inclusive. The Theatres Operating Company surrendered its lease of the American Theatre, after the picture had been exhibited. No payments have been made to the respondent on the contract whereby it leased the picture film.

The appellant contends that the complaint is fatally defective in the following particulars: That the original contract for the lease of the picture film is not sufficiently pleaded; that the amended contract for the lease of the picture film is not sufficiently pleaded; that by the terms of the contract of assignment it affirmatively appears that the appellant became a mere guarantor for the faithful performance by the Theatres Operating Company of the contract of lease of the picture film; and that the facts alleged in the complaint are not sufficient to hold appellant as such guarantor liable for the amount owing by the Theatres Operating Company to the respondent. As to the original contract between appellant and respondent for the lease of the picture film, the complaint alleges:

"That on or about the 21st day of July, 1927, the defendant American Theatre Company made and entered into an agreement with the plaintiff by which it was agreed that the plaintiff should furnish, let and lease to said defendant a certain...