155 N.Y.S. 597 | N.Y. Sup. Ct. | 1915
Plaintiff sues for the specific performance of an alleged contract for certain motion picture rights, and has obtained an order restraining the defendants from disposing of the exhibition or producing rights to the film known as “ The Birth of a Nation ” in seventeen states. This is a motion to have the injunction continued pendente lite, which would, in effect, amount to compelling the specific performance sought in the final judgment. Plaintiff is a theatrical manager residing at San Francisco, Cal. He there
“ June 24, 1915.
‘ ‘ H. E. Aitken, Masonic Temple Building, 23rd & Sixth Ave., New York, N. Y.:
“ George H. Davis, an associate of Belasco at Alcazar Theatre, offers ninety thousand dollars for the States of Oregon, Nevada, Arizona, Utah, Idaho, Montana., Washington, Wyoming, Colorado, New Mexico, Kansas, Nebraska, Iowa, North Dakota, South Dakota, Minnesota. This includes Washington after the present engagement of eight weeks, for which you have already received payment, are through. This also includes ten prints of the picture. Twenty thousand dollars upon signing the contracts, balance within thirty days. Davis is experienced and capable man. If these terms are acceptable, he will come to New York immediately to make final arrangements. This is outright sale and company has no share in profits. If Brennan has not closed, wire me answer Alexandra Hotel, Los Angeles.
“ D. W. Griffith.”
“ Jme 25, 1915,
*634 “ George H. Davis, Alcazar Theatre, San Francisco, Calif.:
“ Offer to Griffith accepted for Oregon, Nevada, Arizona, Utah, Idaho, North Dakota, South Dakota, Minnesota, Iowa, Montana, Washington, Wyoming, Colorado, New Mexico, Kansas, Nebraska, excluding eight weeks’ present engagement in Washington; includes ten prints, terms twenty thousand cash, seventy thousand thirty days. Wire when you expect to arrive in New York.
“ Epoch Producing Corporation,
“ Longacre Building.”
Plaintiff telegraphed, in reply:
“ June 25, 1915.
“ Will leave next Wednesday for New York, bringing required cash with me. Will require four or five days at theatre here to arrange matters so I can remain away length of time needed to consummate deal. Will see you immediately upon arrival.
“ Geo. H. Davis.”
When plaintiff arrived in New York he found that the defendant corporation had, regardless of its acceptance of his offer, disposed of the purchasing rights of the film for the city of Portland, Oreg. Plaintiff was willing and anxious, nevertheless, to obtain a contract for the balance of the territory covered by the telegrams, but demanded an abatement in price because Portland was excluded. Although the defendant corporation had secured $8,000 for Portland, it flatly refused to abate the price. Plaintiff tendered his cash payment of $20,000, which was refused, and then commenced this action. That plaintiff has been unfairly dealt with and that the equities are strongly in his favor is beyond doubt and, if the law permitted, an injunction should issue. The matter must be deter
Ordered accordingly.