Thе suit was for injunction. The Select Pictures Corporation never appeared nor was brought into court as a party defendant. The appeal is from a decree overruling defendant’s motion to dissolve a temporary injunction against Montgomery Enterprises exhibiting the photoplay in question, and for overruling demurrers to the bill; one of the grounds thereof being that Select Pictures Corporation was a necessary party defendant.
“It is a rule that the whole contract should be considered in determining the meaning of any or all its parts.” 2 Parsons on Contr. 13.
“The contrаct should be supported, rather than defeated.” Page 15.
“All the parts of the contract will be construed in such a way as to give force and validity to all of them, and to all of the language used, where that is possible.” Page 16.
“All instruments should be construed contra proferentem; that is, against him who gives, or undertakes, or enters into an obligation.” Page 19.
“Our impression is that your contract with us is to become éffective on or about November 1st. If correct in this surmise, we will appreciate your giving us definite exhibition dates at the earliest possible moment, in order that we mаy give you absolute protection on the new releases,”
—and on December 12, 1918, again wrote:
“Dame Rumor * * * informs me that a report is being circulated to the effect that a local film distributing organization alleges that they have secured the services of Norma Talmadge. I desire to state most emphatically, and I base this statement on authentic advice from an authoritative source, that Select Pictures Corporation contract for Norma Talmadge pictures runs until November, 1919, and that no other distributing organization will distribute or release (new) Norma Talmadge pictures during that period. What may happen after that cannot, affect Norma Talmadge production for practically one year. In view of the fact that Miss Talmadge has released but one of the eight contracted second star series pictures and that the contract held by Select Pictures Corporation is binding in its terms for the faithful performance of all the conditions of contract, it is slightly illogical that any other company could have secured the services of Miss Talmadge until the eight pictures above mentioned shall have been delivered; therefore'we repeat most emphatically that no changes will be, nor can be, made prior to the completion of her contract with Select Pictures Corporation. All contracts writtеn or to be written by Select Pictures Corporation for Norma Talmadge second star series of eight pictures will remain in. force as written and the full contracted quota of pictures will be delivered by Select Pictures Corporation regardless of any rumors or allegations to the contrary.”
The affidavit of Mr. Morris, general manager of the Select Pictures Corporation, showed that the negative of the picture in question, “The Isle of Conquest,” was received by Sélect Pictures Corporation on or about September 20, 1919,- and that picture was released on or about October 20, 1919; that its receipt was (in the opinion of the affiant) “nearly a month after the expiration of the period fixed by the contract as determining what pictures were covered by it and also after the cancellation of the contract.” However, the date of expiration of the contract and of effective cancellation thereof are questions of law for the determination of the court. Of the time of performance it is pertinent to note that paragraph 3 of the one instrument is:
“The exhibitor agrees to play, in the order of delivery for exhibition, at least two of said photoplays during each and every period of one month commencing with the 1st day of November, 1918, and to play all of said photoplays on or before the expiration of one year from *573 the date of exhibition of the first of said photo-plays.”
In the other:
“The distributor agrées that he will, during the year commencing on or about the 1st day of September, 1918, release eight photoplays, in which the above-named star (Norma Talmadge) shall enact the leading role; and it hereby grants to the exhibitor the license to exhibit one copy of each of said photoplays, at the above-named theater only, for two successive days. * * * ”
In view of this apparent conflict of date of beginning of contract, the construction placed thereon by the parties will largely control in the matter.
In Friedberg v. McClary,
“We are aware that in Chambers v. Baldwin,91 Ky. 121 , 11 L. R. A. 545,34 Am. St. Rep. 165 ,15 S. W. 57 , and other cases cited on the brief of defendants’ counsel, it was held that one party to a contract cannot maintain an action against a third person' who even málieiously advised and procured the other party to the contract to violate it, unless such person, by coercion or deception, caused the violation of the contract by the other contracting party against his will or contrary to his purpose. But in that case the action was brought, not, as here, to prevent the violation of the contract induced by a third party, but to recover of the latter damages for his malicious interference with the contract. In the instant case no damages are sought against Buckner or Gaston, Williams, and Wigmore; it is merely sought to enjoin them from interfering with the contract between plaintiff and the defendant MeClary, upon the ground that such interference was malicious, or at least in bad faith, doné with full knowledge of the plaintiff’s rights under the contract; and that damages that might be recovered by the latter of MeClary in an action at law because of his insolvency would not afford an adequate remedy. In such state of ease relief by injunction has been allowed in other jurisdictions. Beekman v. Marsters,195 Mass. 205 , 11 L. R. A. (N. S.) 201,122 Am. St. Rep. 232 ,80 N. E. 817 , 11 Ann. Cas. 332; American Law Book Co. v. Edward Thompson Co.,41 Misc. 396 ,84 N. Y. Supp. 225 ; Flaccus v. Smith,199 Pa. 133 , 54 L. R. A. 640,85 Am. St. Rep. 779 ,48 Atl. 894 ; Newport v. Newport Light Co.,84 Ky. 166 ; Wilkins v. Somerville,80 Vt. 48 , 11 L. R. A. (N. S.) 1183,130 Am. St. Rep. 906 ,66 Atl. 893 ; New England Phonograph Co. v. Edison (C. C.)110 Fed. 26 . The doctrine was also recognized in this jurisdiction in Turner v. Hampton, supra, wherein it was held that not only was injunction the proper remedy to prevent the violation by the trustees of a school district of a contract whereby they had emрloyed the plaintiff to teach the school therein, but also to restrain another from teaching it under a later contract with the trustees.”
In Int. News Service v. Associated Press,
^The fault in the reasoning lies in applying as a test the right of the complainant as against the public, instead of considering the rights of complainant and defendant, competitors in business, as between themselves. The right of a purchaser of a single newspaper to spread knowledge of its contents gratuitously, for any legitimate purpose not unreasonably interfering with complainant’s right to make merchandise of it, may be admitted; but to transmit that news for commercial use, in competition with complainant — which ig,what defendant has done and seeks to justify — is a very different matter. In doing this defendant, by its very act, admits that it is taking materiаl that has been acquired by complainant as the result of organization and the expenditure of labor, skill, and money, and which is salable by complainant for money, and that defendant in appropriating it and selling it as its own is endeavoring to reap where it has not sown, and by disposing of it to newspapers that are competitors of complainant’s members is appropriating to itself the harvest of those who have sown. Stripped of all disguises, the process amounts to an unauthorized interference with the normal operation of complainant’s legitimate business precisely at 4he point where the profit is to be reaped, in order to divеrt a material portion of the profit from those who have earned it to those who have not [italics supplied], with special advantage to defendant in the competition because of the fact that it is not burdened with any part of the expense of gathering the news. The transaction speaks for itself, and a court of equity • ought not to hesitate long in characterizing it as unfair competition in business. The underlying principle is much the same as that which lies at the base' of the equitable theory of consideration in the law of trusts — that he who has fairly paid the price should have the beneficial usd of the property. Pom. Eq. Jur. § 981.”
The rule is stated in Citizens’, etc., Co. v. Montgomery L. & W. P. Co. (C. C.)
“While the law allows a trader, by mere solicitation, to persuade customers to change their business relations, without actionable liability therefor, though a broken contract is the result, it does not permit such a solicitor, even in the interests of competition, to go further, intervening actively between the contracting parties, as a dominant agency in producing a breach, by promise of indemnity to one of them to induce the brеach. When the solicitor knowingly and intentionally goes beyond mere solicitation, to induce another man’s customer to do business with him, and promises to hold that other man’s customer harmless for the breach of a contract with him, he transcends the rights of the law of competition, has no ‘sufficient justification,’ and thereby becomes liable to him whose customer is taken over. Such conduct is an unlawful interference with another man’s rights, for which he may maintain an action and recover nominal damages, although the contract be not actually breached in consequence of the solicitation.” (Italics supplied.)
“If the specific thing contracted for is desired by plaintiff, if it cannot be duplicated, and if his reason for desiring it or the other circumstances of the case are such that money damages would not be an adequate compensation to him for its loss, equity will decree its delivery to him. The jurisdiction for this purpose is an outgrowth of, and closely connected with, the remedy for the delivery up of chattels of this special nature tortiously withheld from their owners. In such cases the legal remedies of replevin and detinue are subject to defects of procedure which prevent the successful plaintiff from invariably recovering possession of the chattel.”
We now; come to the question: Had the lower court jurisdiction to enjoin the exhibition of the picture by defendant Montgomery Enterprises Corporation? Of jurisdiction, pertinent provisions of our statute are:
“Courts of chancery must take cognizance of cases in equity. * * * Against nonresidents, when the object of the suit cоncerns an estate of, lien, or charge upon, lands, or the disposition thereof, or any interest in, title to, or incumbrance on personal property within this state, or -where the cause of action arose, or the act on which the suit is founded, was to have been performed, in this state.” Code, § 3054; Moore v. Alton,192 Ala. 261 , 264,68 South. 326 ; Treadaway v. Stansell,203 Ala. 52 ,82 South. 12 .
In Iron Age Pub. Co. v. W. U. Tel. Co.,
“The jurisdiction, as thus conferred, is plainly statutory and limited; and the general rule being that a foreign corporation cannot be sued unless it voluntarily appears to defend, it being impossible for the court to extend the arm of its process into.a foreign state or territory for the purpose of reaching it, it follows that the bill cannot be retained, unless the case made by it falls within the statute, or else it is made to appear that this objection has been obviated by an actual appearance of the defendant, so as to confer jurisdiction of its person. Sayre v. Elyton Land Co.,73 Ala. 85 ; Galpin v. Page,18 Wall. 350 ; Field on Corporations (Wood’s Ed.) § 329, note 3; Camden, etc., Co. v. Swede Iron Co., 32 N. J. L. 15; Freeman on Judg. (3d Ed.) §§ 567, 568. The present case concerns neither land nor personal property, but a contract for personal services. As we have above said, the bill fails to aver with sufficient certainty that the contract arose in this ■ state, or was to be performed within its jurisdiction.”
The subject of that controversy was news dispatches to be delivered from time to time by the Associated Press, in the future, to the Western Union Telegraph Company at a point, without the state and by it delivered to resident publishing companies. The purpose of that bill was not to enjoin the publication of press dispatches then in the possession of the publishing companies within the jurisdiction of the Alabama courts. In discussing- the sufficiency of averments of the bill in the Iron Age Case, Mr. Justice Somerville points to indefiniteness with respect to when the contract was made, or where it was entered into, or where to be performed, whether in or out of the state, and says that the bill does not with sufficient particularity aver that the telegraph dispatches were, under the contract, to be delivered to the complainant by the New York Associated Press at Birmingham through the agency of the telegraph company, or only to the latter company in New York, to be transmitted to complainant’s agent without further liability on the part of the Associated Press. It was upon such vague and indefinite allegations as to the place of execution of the contract- by the Associated Press that the court held that such defendant was not brought “within the class specified by the statute, and therefore shows no jurisdiction in chancery.” That this is the crux of that decision is shown by the further statement of facts reciting that the bill prayed an injunction “to enjoin and restrain said Western Associated Press and New York Associated Press from selling, transmitting, or furnishing and said Western Union Telegraph Company from delivering the ‘Associated Press dispatches’ to said News Publishing Company, said Herald Publishing Company, or to any one for them.” From such averments it was not shown that an interest in, title to, or incumbrance on personal^ property within the state and its use or the act on which the suit was founded was performed within the state of Alabama, as required by statute. Thus is the decision of Iron Age Pub. Co. v. W. U. Tel. Co., supra, distinguished from the averred facts in instant case showing jurisdiction within the purview of the statute. In instant case the photoplay film in question had been furnished by Select Pictures Corporation to thé defendant Montgomery Enterprises, in disregard of its contract with cоmplainant, and the aver
*576
ments of the pleading were that said personal property (the photoplay film in question) was within the state at the time the bill was filed, in the city where complainant and the defendant competitor both conducted
moving
picture businesses, and was being exhibited by one of respondents. , The object of the present suit concerns an interest in or title to the specific personal property within the state and its exhibition by the Montgomery Enterprises within the state and county where the bill was filed, in disregard of complainant’s superior contract rights and to its irreparable injury. Woodstock Opr. Corp. v. Quinn,
The cases by our court relied on by appellant are not to a contrary effect. In Rucker v. Morgan,
“Service of its process is limited and confined to the territorial boundary of the state, and in the absence of a voluntary appearance and submission to its jurisdiction by a nonresident defendant, it can acquire no jurisdiction as to such a person, except in cases provided for in the .above statute, and then not of the nonresident personally, but in the language of the statute, ‘against nonresidents,’ and to the extent and purposе of dealing with his interest in the subject-matter of the suit, and over which the court has rightfully acquired jurisdiction. The cases mentioned in the statute are stated with sufficient clearness not to admit of a misunderstanding. The jurisdiction of the chancery court as to nonresidents being, therefore, purely statutory, must, as to such jurisdiction, be held strictly within the provisions of the statute.”
The statute was also considered in Tigrett v. Taylor,
“Whether there can or should be any proceeding as against the land in Alabama, taking the averments of the bill as true, is contingent upon and merely incidental to the accounting and settlement of the trust. As there can be no discovery, accounting, or settlement of the trust, it cannot be known that complainant has any estate in, lien or charge upon, the lands in Alabama. The only interest Tigrett is shown to have in the lands is that of mortgagee; if the mortgagor should pay off the mortgage debt or redeem, then neither Tigrett nor complainant, would have any possible interest therein. So the intеrest in the lands is wholly contingent upon the main equities of the bill, and is merely incidental to the relief sought.”
Adverting to the Iron Age Case, where, speaking of the statute (Code, § 3054), the important distinction is made as to the ju< risdiction of a court of equity under the statute, it is said:
*577 "The present case concerns neither land nor personal property, but a contract for personal' services.”
The instant case is not a contract for personal services, hut for the delivery of specific personal property of unique and artistic value, controlled exclusively by Select Pictures Corporation, and which personal property was at the time of filing the bill within thе jurisdiction of the court, and was then being used by complainant’s competitor in business in disregard of its contract rights with respect to such personal property. The right of injunction has been decreed and enforced as to contracts for such personal property. In Sou. Iron & Equip. Co. v. Vaughan,
“The general rules obtaining for specific performance are that: ‘Equity will not, in general, decree the specific performance of contracts concerning chattels, because their money value recovered as damages will enable the party to imrchase others in the market of like kind and quality. Where, however, particular chattels have some special value to the owner, over and above any pecuniary estimate — pretium affectionis — and where they are unique, rare, and incapable of being reproduced by money damages, equity will decree a specific delivery of them to their owner, and the specific performance of contracts concerning them.’ ”
See 11 Michie’s Dig. p. 983, 984, §§ 47, 48; 5 Pom. Eq. Rem. (2d Ed.) 2170, 2171; 36 Cyc. 557, 559, and notes.
The fact that Select Pictures Corporation was not a party by appearance or service of process is important only as affecting the scope of the decree entered on February 2, 1920, which is as follows;
“* * * The said Montgomery Enterрrises, a corporation, Select Pictures Corporation, and R. B. Wilby are hereby enjoined from exhibiting or otherwise displaying the moving picture known as ‘The Isle of Conquest,’ in which Norma Talmadge performed as a star, at the Strand Theater or any other theater in the city of Montgomery, Ala., until the Empire Theater Company shall have had the first run” of said motion picture at said Empire Theater.
The time and place of complainant’s exclusive right to exhibit the personal property being acquired and fixed, and the contract being interpreted by the parties of its ambiguous provision as to when tfie year of its operation began, the use by another рerson with knowledge or notice of said personal property contrary to contract, within the jurisdiction of the court, may be enjoined in cases provided by tlie statute. Code, § 3054. This extraordinary relief may be granted in a proper case, as provided by statute, where the personal property, the object of the contract and its use, is within the jurisdiction of the court, though specific performance may not bo enforced against its-nonresident owner and offending party to the contract who has not been subjected to or submitted to the jurisdiction of the state court.
The decree for temporary injunction was sufficient to prevent Montgomery Enterprises and its agent, Wilby, from exhibiting at Montgomery at the time indicated the personal property in-question of Select Pictures Corporation contrary to complainant’s contract rights with the latter corporation and to its irreparable injury. The demurrer to the bill was properly overruled.
The decree of the circuit court, in equity, is affirmed.
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