Vitagraph v. Theatre Realty Co., 15712.

• Decision Date: 28 April 1931
• Docket Number: No. 15712.,15712.
• Citation: 50 F.2d 907
• Parties: VITAGRAPH, Inc., v. THEATRE REALTY CO., Inc.
• Court: U.S. District Court — Western District of Pennsylvania

50 F.2d 907 (1931)

VITAGRAPH, Inc., v. THEATRE REALTY CO., Inc.

No. 15712.

District Court, E. D. Pennsylvania.

April 28, 1931.

Cohen, Schweidel & Krekstein, of Philadelphia, Pa., for plaintiff.

George P. Aarons, of Philadelphia, Pa., for defendant.

DICKINSON, J.

The general fact situation is that the plaintiff is what is known as a distributor of motion picture films, and the defendant is an exhibitor of such pictures. The parties entered into a contract, the one to supply films and the other to pay for them. It is out of this contract that the questions to be now ruled arise. The question raised by the statutory demurrer is the very broad one of whether or not the contracts sued upon are void as against public policy, in that they are condemned by the act of Congress known as the Sherman Act (15 USCA § 1 et seq.). A primary question is suggested of whether the case is ripe for an adjudication upon the above question of whether the contracts are enforceable. This primary question is not whether the contracts will be found to be unenforceable when the facts upon which this judgment is based are developed, but the other question of whether we can assume the facts upon which a condemning judgment of the law would be based. This brings the primary question down to that of whether the demurrer is a speaking demurrer. The underlying question is, however, one which must be met and can be met as well now as at the trial of the case. We will, in consequence, assume a submission of the question by the parties upon the facts.

The plaintiff concedes that the contract is unenforceable in some of its features, but asserts that, notwithstanding this, the plaintiff may recover the contract price of the films which were supplied and accepted and used by the defendant. The fact appears on the face of the pleadings in their present state that films were thus supplied by the plaintiff, were accepted, and were used by the defendant. If this were the sole fact, the plaintiff would have a right of action on an implied assumpsit to pay the fair value of what was thus furnished and accepted. It would thus seem to follow that the only function of the contract is to change the cause of action from a quantum meruit to a contract price basis of recovery.

The experienced counsel for the plaintiff, starting with the admission that the contract in some of its features is inimical to the law and therefore void, urges that the "entire contract is not thereby void so as to preclude a recovery for a breach of its other provisions." Several cases are cited in support of this distinction. The distinction as such is undoubtedly sound, but it does not reach the real issue here. The contract calls upon the defendant, not merely to pay for the films, but to pay for them at the contract price. Had the defendant agreed to pay that...