*1 respec- and in view of the cumulative effect of the errors the judgments tive of conviction were reversed. reading
A here shows that defendant had a record prejudicial impartial trial, fair claims his error cannot he sustained. judgment denying of conviction the order a new
trial are affirmed.
Gibson, J., Traynor, J., Shenk, Edmonds, J., Carter, J., C. J., Schauer, J., concurred. May 2, A. No. 20897. In Bank.
[L. 1950.] QUADER-KINO (a Corporation), Appellant, A. G. v. Respondents. al.,
SEYMOUR NEBENZAL et *2 Appellant. for Chantry and Mellinkoff & David Herzbrun Respondents. for Fred Horowitz began in a French suit SCHAUER, J. 1946 defendants In exhibiting the French plaintiff from further prevent court to thereupon “Mayerling.” Plaintiff language picture motion with injunction against interference an this suit for instituted the French against prosecution of picture and of the exhibition has judgment from an adverse damages; and suit, and for the decision concluded that appeal. We have taken this jury) (sitting a without trial court 1945, and expired October, picture exhibit the suit, upheld. recovery in this must to no entitled interpretation, upon the controversy turns Resolution entered evidence, of two written contracts parol the aid In in 1944. the discussion parties hereto into between light most favorable is viewed in the evidence follows which required appeal.. as is (respondents), to defendants under the laws Switzer- corporation formed is a Plaintiff Films, Nero Seymour Nebenzal and are Defendants land. a stock- corporation of Nebenzal is Inc., California 289 director, president; unless otherwise indi- holder, a designation will cated, however, the “defendant” hereinafter only. “Mayer- Also, refer to Nebenzal unless otherwise stated language ling” picture will refer French involved litigation. this picture been in the
Nebenzal has motion business in Ger- many, years. for In France and the United States some produced Mayerling 1935 he France Concordia Company, the stock which was owned Emile and Chiel Natan, Weissman. The in the French lan- guage Boyer Darrieux, stars Charles and Danielle and is story Rudolph “the of Crown Prince of Austria in 1889 who approximately per committed suicide.” It is based cent upon public upon historical matter domain and “certain original script expressly features to the pic- written for the ture,” per upon original and 5 cent (hereinafter material material”) “Anet termed the taken from a novel also entitled Mayerling, authored the late Claude Anet. The Anet pursuant material five-year was used to a (hereinafter license rights”), expire “Anet termed the due to in October, 1940, *3 purchased from the author or his picture heirs. The released in 1935 or 1936. disposed
Thereafter Nebenzal of his interest in the Concordia company company, the liquidated, plaintiff became Mayerling. the In owner of 1940 Natan secured an extension rights of the Anet for five-year period expiring October lacking rights 1945; picture those the could not be shown unless material Anet was eliminated. In 1942 Natan trans- rights plaintiff. ferred his Anet America,
In 1943 then in inquired by mail of Gruess, M. William who was attorney-in-fact in York, concerning possible acquisition New rights remake Mayerling. After extended correspondence Gruess wrote January, Nebenzal in 1944, that he was authorized to sell the English language rights remake for $20,000, that the Anet rights were to October, extended plaintiff and that would agree to do its best to secure a further at extension Nebenzal’s expense. March, 1944, In (be- Gruess wrote Nebenzal that war) impossible cause of the it was plaintiff cable in Switzer- land or to have contact heirs, territory as the occupied by enemy. was then the Because of uncertainty the as to “when France would be liberated” and contact estab- lished with the Anet heirs Nebenzal informed Gruess that he rights myself Anet and would from” the “separate
wished to Mayer- remake of from the intended Anet material eliminate securing necessity of thereby freeing from the ling, himself rights picture the in to show Anet order an extension of the picture would be based 1945, and that the new October, after original to the material and on material solely on historical Mayerling. the French script of (hereinafter contracts1 the “main two termed Thereafter contracts, provide material, Main so as here as follows: far 1The Contract: Whereas, use not the the Purchaser does desire to [Nebenzal] . “. . story peculiar but the of the new to the Claude Anet novel base features original script production facts, on features with the on historical may fit to on such new as he deem Picture . . . and features Motion . . . introduce sells, hereby [plaintiff] For Value received the Owner “FIRST: assigns, grants in quitclaims Purchaser all the Owner's the itself, to Motion Picture to the extent that owns those and including thereon, the English right produce based a motion in the make ‘Mayerling’ right use . . but exclud as well as the title . herein, ing rights expressly excepted and/or reserved Provided, those however, name of that the to use the novel Claude Anet or the nothing being is contained thereof transferred. But herein the author prevent using any in said be Purchaser from domain material shall deemed may public . in source . . novel which historical and/or “ agreed exploit picture in THIRD: Central not to the new motion [Nebenzal European years cessation of countries until after the ten three . . . therein.] hostilities original unqualified right “FIFTH: The Owner to ‘Mayer- original language French French under the title version ling' hereby expressly . . . reserved disagree agreed questions arising “ELEVENTH: It is that all on a questions performance ment, including relating construction, all to the thereof, the laws and enforcement shall be determined accordance with of New . State York . .” Option Agreement: option contract, and then the main recites execution of provides that in consideration of Dollar it is that: One future, should, reason the Purchaser In case “FIRST: novel, acquire whatever, the the extent based on the Claude desire option acquire grants those Purchaser to the Owner owns time the Owner them itself and for the owns the Owner Dollars, price Hundred . . of One . for the . . . those option (3) . . three . within Purchaser exercises “Provided, Europe, concluding present how- war in Armistice months after *4 8, by July ever, 1945. at the latest “ option, should the the Purchaser exercise In the event SECOND: Purchaser, express request agrees, upon to be made also the Owner try abilities to obtain an extension of the Owner's to to best expire 8, 1945, five rights for another . . on October which . Anet Claude years, provided . furnishes consideration (5) Purchaser . . that the . paid Anet . . for that extension the heirs Claude be to circumstances, having to make and without Under all “THIRD: paid price . . to to the heirs . for extension be to contribution . . . the exploitation to the entitled use Owner shall be purposes in accordance with the reservations herein for its own dealt simultaneously signed agreement ...” made “option agreement”) July 25, contract” and the dated 1944, 1944, but or September, not delivered effective until when $20,000 paid, plaintiff (acting through the cash price was Gruess) plaintiff’s rights Nebenzal Mayerling, sold to all of to including excepting in English, remake but the Anet excepting plaintiff’s material and to the French granted Mayerling; option purchase and also Nebenzal an prior July 8, 1945, rights, obtaining expense assist Nebenzal at his own an extension rights beyond expiration of the Anet their date of October 1945. differing interpretations These are the two contracts give litigation. of which rise to this seeking who was not rights, then the Anet did request option agreement not presented and when it was personally him July Gruess in New York on £‘ pointed he out to I not interested, Gruess very good reasons, why I them rights] [Anet contract, eliminated from the main willing which he was give me, them to I said I didn’t want them. And he you said £. . . it doesn’t you cost anything, might as well you take them up and if option you want to take can take up; you it you if don’t to, have don’t have I to.’ ... said £. . . I using have no intention of Claude Anet ’ picture. the remake of the insisted, might He however, it useful, signed so I it in view of the it fact was an option, it anything didn't mean to me. I had picking no up intentions of option . . . option, was an which I felt I [A]s could pick up pick up, or not I accepted ...” Nebenzal did not option exercise the request and did plaintiff to secure an extension of the Anet Subsequently Nebenzal con tributed an additional sum of $7500 obtain a release to him self of Mayerling from the United States Prop Officeof Alien erty, agency then claiming picture. title
In September, 1944, one Marcel Heilman, London, who was a friend of Nebenzal and Natan, arrived in York, New where he learned of Nebenzal’s intention Mayer- to remake ling. proceeded Heilman then to Hollywood, where in October, 1944, he and A-net Nebenzal Mayerling discussed and rights. Nebenzal told Heilman of acquisition Nebenzal’s from plaintiff of the remake Mayerling and showed Hell- man certain recitals set forth in the main between plaintiff stating and had been transferred period for the expiring October 8, *5 through negotiated his that he had Heilman stated
1945; and acquire pic- motion option to himself lawyer for an in Paris year for a five or seven term Anet material rights in the ture Mayerling; remake October, 1945, as he also intended to beyond option had no connection with the Anet proposed Heilman’s October, expired formerly Natan, which in held Angeles promised in Los he was still 1945. While Heilman profit himself, (i.e., Heilman assign without to Nebenzal $1,000 $2,000), and price of between at Heilman’s cost rights beyond October, 1945, but stated license for Anet money pay an additional sum of there- he Nebenzal to wanted wars”; after coming back from the Natan, who “was for to pay costs Nebenzal Heilman’s further discussion Subsequently, while in New York give $2,000. Natan and to lawyer to London, Heilman Nebenzal’s promised en route to assignment Anet to Nebenzal “without make the of his Heilman reached profit” or to Heilman as soon as benefit the documents.” London and “received Europe, learned that the Anet heirs Heilman returned to grant option sought he but instead wished had declined to outright to sell a license to use the Anet material for a fixed purchased in thereupon term. He and Natan Heilman’s $3,000, name, heirs, $1,500 for and from the Anet between years period (to ten license to use the Anet material for a (in 1945) 1955), March, October and about decided to ask $10,000 delay objections Nebenzal therefor. After some price paid attorney in $10,000 Nebenzal to Heilman’s 31, 1945, assignment New York and or about October (dated July 9, 1945) of the Anet from Heilman to Nebenzal, Nebenzal was consummated. who had believed that acquired he had in from Heilman the fall of plaintiff’s agent had informed the fact as he Gruess of early spring believed it in the of 1945. Mayerling “heard” 1946 defendants spring of
In the fall Alsace-Lorraine, France or and in the being shown stop in France to exhibition they instituted suit year of that theory that inasmuch as Anet picture, on all Anet to use such ma- expired and that license 10-year picture period had been motion terial in by defendants, plaintiff acquired could no independently language Mayerling. “exploit” French longer exhibit suit, purpose plaintiffs filed this of which July, 1947, In hereinabove, enjoin defendants from interfer- is, as stated the French and from further ing exhibition of damages. France, and to prosecuting the suit recover provisions paragraph under the Plaintiff contends that agreement numbered numbered Fifth of the main and that against option right, as in the it had Third Mayerling. Plaintiff asserts exploiting to continue “the option agreement this describes connection that the acquire might manner which the defendant alleges agents, his rights,” “and that Nebenzal maliciously fraud- servants, employees secretly, . . . *6 ulently” acquired telling plaintiff, the Anet license without thereby plaintiff for to impossible and rendered secure “it provided” option an in extension Anet as “ ’’ agreement argues, effect, or at all. Plaintiff in that further ostensibly option agreement runs in of Neben- which favor places upon greater obliga- zal burden or reality in Nebenzal a tion upon i.e., plaintiff required only, upon than plaintiff; request “try of of” Nebenzal, to to the best its “abilities” to rights beyond secure of extension the Anet October absolutely obligated, whereas Nebenzal was if his own enterprise expense acquired at his license, and own he an Anet permission to license, operate deliver such to it, under to plaintiff. however, allegations
The court, contrary found to of secrecy, fraud, malice and and further found that neither any person acting Nebenzal nor anything for him “did to impossible plaintiff render it for to an secure extension rights,” plaintiff Anet and “the 8,1945, that since October right has exploit Mayerling no distribute or . or exhibit . . ” anywhere in the world. In an oral decision delivered at the the trial, judge conclusion of the trial declared view of his the evidence parties, contracts between the as By plaintiff follows: the main contract “reserved itself right original Mayerling, French version say while it not so, does it must be construed be to the plaintiff extent that owned or continued to own those “Now it is conceded all concerned that exploit, exhibit or as term throughout is the here, used a picture, any country motion ends in with the termination of the contractual between producer the author and which, ease, in this was October 1945 .. . ... Now all . option . . agreement] amounted to giving him [the option an their [plaintiff’s] Anet [Nebenzal] if 8,1945, purchase October he desired to they them, him get an extension for without efforts to use their best following excepting put the cost were they cost additional anything in They bind themselves to do didn’t that date. regard excepting to use their in best offices. particular that this, Court, of all it seems to the is that the effect “Now during period, this difficult war that Quader-Kino expected, readily they of hostilities would be able to at the conclusion rights from get of these Anet the heirs Claude an extension apparently, anyone They contemplate, did Anet. not they might negotiate them, or, they did, if were else option agreement under in event this to deliver bound contingency. they anything additional such Had desired particular they sought Nebenzal in the in which have to bind documents, they these should have included their to construe entirely provision to the effect that he contract some would look rights extension, to no one else for to them and any right might he he waived have to such subse- excepting through quent 8, 1945, them . . . to October [T]he been Court finds that there has no fraud established this of the defendants . . . And . . finds that case on . option requirement . . . . . under the . there is no whereby . pre- the defendant to . . refrain from reserved venting securing from the extension of taking rights, steps or that inhibited the defendant from ’’ he did this case. *7 apparent It is that the evidence hereinabove sum supports findings the court’s marized decision and the written As in (1948), based thereon. declared Edwards v. Billow 31 (see 359 P.2d therein), Cal.2d also cases cited [188 748] circumstances “Under such this court will adhere to the in by terpretation placed writings the trial court on the e s parti conduct of the . Plaintiff that urges, however, law, under New York agreement (see was to control construction of main para- the graph imposed number that either Eleventh), duty “express permit plaintiff Nebenzal an to continue the ‘Mayerling’ beyond exhibition of 8, 1945,” October or else by “implied bound Nebenzal an covenant” not to interfere acquisition plaintiff’s of an and extension of Anet acquired independently not to use his own Anet license to prevent plaintiff exploiting Mayerling. from point On this plaintiff relies first on a statement in La Co. v. Kirke Shelle Armstrong (1933), 163], Paul Co. 263 87 N.E. N.Y. [188 anlysis “In only apply that the last those eases the principle
295 implied that is an covenant every in contract there that the effect of anything which will have party shall do neither injuring right party of other receive destroying the every contract contract, which means that fruits of good fair deal implied of faith and there exists an covenant ’’ effect ing, other cases to the upon statements from contracting good dealing required and honest are between faith parties. Here, plaintiff party who was however, as selling Mayerling fruits of remake received “the $20,000 paid Nebenzal; form by contract” in the so obligations far are con plaintiff as Nebenzal’s contractual by performed his payment cerned Nebenzal such of nothing the contract and further remained to done. More by over, court, as found the trial there is no evidence dealing Certainly part. but fair and honest on his he had no obligation option agree under main contract—or under the for that either, idly by nothing ment matter—to do sit when he acquired was told the fall of 1944 that Heilman had the license or rights beyond “extension” of Anet October 1945. He as free as other purchaser would-be negotiate those with Heilman to them. More secure by over, as found trial by court as shown the evidence, plaintiff’s he agent informed early as spring Gruess as the 1945 acquiring that he was the so-called “extension” or new license which Heilman had secured. Underhill v. Schenck (1924), N.Y. 7 N.E. 773, 303], upon by
A.L.R. also relied plaintiff, involves facts and differing materially contracts from those ease, in this consequently persuasive plaintiff’s view. Suffice it say that that action was between a a licensee, licensor and who jointly profits were to share stage production, in the of a and did outright not involve an cash sale such as that from plaintiff to Nebenzal. urges admittedly
Plaintiff further attempts made by subsequent execution of the two contracts here involved, purchase plaintiff from all of its the French Mayerling, to a practical amounted construction parties the contracts and a concession Nebenzal possess still continued to even after expired Octo- *8 ber, However, 1945. Nebenzal testified that in his efforts this direction, which failed of lack because on price paid, to be were purpose for the of acquiring the French negative prints removing and of “from circulation en- Mary my negotiations with Mayerling ... In
tirely old after that negotiations before that and my Pickford, . . . I that it was most desirable others, found with Selznick fact, is, in and that negative prints, and old old have the an old remake of when a customary industry, in the that not like to major studios do contemplated, that the picture is if it can around negatives picture of the former prints or see every in extent that customary such an This is be avoided. buyer a limited a you grant a license to contract when sales whereby paragraph always included a there is period of time you prints which obliged is to return the license holder Also period. license expiration of the holding, at the he is negatives.” original dupe any, negatives if he should have in point resolved on this Any in evidence conflict in court, whose determination favor the trial defendant’s appeal. conclusive on respect this is that de finding by the trial court Plaintiff attacks a defendant ego of Inc., not the alter Films, Nero is fendant that concedes in its brief However, plaintiff Nebenzal. ego alter arises the doctrine of court so found “Since trial court felt there injustice, and the prevent fraud or finding plaintiff had that Inasmuch as the court’s neither.” by the evi injustice supported is fraud or failed to establish by the find prejudiced plaintiff is not dence, it is obvious that ing complains. which it as finding urges a next
Plaintiff Mayerling remake Films, Inc., Nero signed to defendant reassigned to Films, Inc. Nero rights, and that In view of the supported the evidence. Nebenzal, is not it is injustice Nebenzal’s against fraud and finding plain finding prejudicial likewise is not apparent that this documentary However, the record reveals both oral tiff. it. There support unnecessary relate here which evidence (No. XI), finding another an clerical error in is obvious the de had advised “which the phrase which the defendant Heilman had advised read “which fendant” was meant to ground for reversal. defendant,” but it furnishes no in in the court erred Finally, plaintiff contends that since Octo “That ever cluding judgment a statement Quader-Kino A.G., corporation, 8, 1945, plaintiff, ber distribute, any right to have and does not now did not have anywhere Mayerling exploit or exhibit the motion alleged complaint Plaintiff its the world.” defend- rights Mayerling, and of the world-wide” “owner *9 allegation. completely order to determine In ants denied the correctly judgment rights parties the court its the rights findings. (See according defined to the O’Melia those 298].) Cal.App.2d 143, 148 (1946), 73 P.2d v. Adkins judgment is affirmed. J., J., J., Gibson, Shenk, J., Edmonds, Carter, C. Spence, J., concurred. Dissenting. agree
TRAYNOR, J., I cannot that the con- Quader-Kino give Quader- tracts between and Nebenzal do not enjoin right Kino the to Nebenzal’s interference with the ex- ploitation picture. of their motion acquired by right
Defendant Nebenzal purchase pro- the English. plaintiff’s “Mayerling” get a duce remake To right pay $20,000 agree that Nebenzal not plaintiff unqualified right” retained “the its original “Mayerling” French version of without restriction time, as to but also that Nebenzal’s compete remake would not with the French version in years certain countries until three after cessation the of hostilities. These in plain conditions language right assured the exploita- continue the “Mayerling” tion of without interference from Nebenzal. attempts prevent Nebenzal now exploitation not- withstanding promise that his not to interfere therewith was of the consideration rights. sale of the remake justify seeks to Defendant his action on ground he rights the Anet on which 5 per now owns “Mayer- cent of ling” that, is based since the Anet heirs or third per- rights acquiring prevent son could exhibition picture long incorporates as it so material, the Anet Nebenzal prevent may also its exhibition. far as So Nebenzal is con- however, cerned, his ownership rights of the Anet imma- “unqualified terial. The reservation of the right” to which not qualification does admit Quader- “if acquires an Kino extension of the Anet before Nebenzal to it.” As beats them between Nebenzal and Quader-Kino, reserved “unqualified,” latter’s as the contract stated. granting
Upon the remake to Nebenzal the plaintiff’s exploitation most serious threat of its competition was that or interference from It Nebenzal. therefore demanded received from Nebenzal contractual that he not assurances would interfere with the exhibition of compete “Mayerling” at time and would with it in not rely It on those assurances. countries. was entitled to certain confronting plaintiff possibility was the of its Another risk securing War conditions an extension of extension at the time impossible made it to secure that justifiably executed, Quader-Kino but con- contracts were secure the extension when communication vinced that could occupied Europe was reestablished. The were grant cov- of the remake but were excluded from agreement. simultaneously supplemental executed ered acquire given option Nebenzal was “those [Quader-Kino] them itself” and it extent owns Owner *10 option Quader-Kino agreed if he exercised the would that supplemental The use best efforts secure their extension. its § agreement plain the Anet purchased makes it that if Nebenzal if rights owner them himself” or “to the extent the owns rights plaintiff acquired an extension of the all they be held for their mutual benefit. “Under were to having circumstances, and without to make contribution of Anet for the price paid to be to the heirs Claude rights, [Quader-Kino] of the shall be entitled extension rights herein for exploitation of the dealt with use its reservations made purposes own accordance signed simultaneously, reservations and those agreement.” hereby It is expressly made of this are rights agree purchase did not not that Nebenzal true knew, however, He that the Anet would independently. unqualified expire and that reservation soon limitation the exhibi- English be un- remake would valueless to tion of Anet extension of the was obtained. less an negotiations were for the sale the remake The European had been dented begun when Hitler’s fortress remote. at the cessation of hostilities seemed Salerno executed the Allied armies were still the contracts were When Cherbourg penetrated had not in the Peninsula and contained It at that Lo. would have been absurd farther east than St. carefully expire rights that would about time to contract so expiration. have no before their shortly and would value only 14 to run. rights at that time had months The Anet Europe before “Mayerling” in continental exhibition of The hardly con- 8, 1945, virtually impossible. It is October reserving rights plaintiff would have insisted on ceivable have virtually The useless to it. contracts that would be
299 meaning only they providing if are construed as for the acquisition Quader- for the mutual benefit of Kino and Nebenzal. supplemental agreement was based on the understand
ing Quader-Kino eventually would secure an extension given opportunity Nebenzal was rights by paying share in those Quader-Kino the costs that acquisition. would incur in their Nebenzal in turn all circumstances, having “Under and without to make price paid contribution to be to the heirs of Claude rights,” Quader-Kino Anet for the extension of the would be entitled to their use. obligations concurrent These mutual are express (Atwater clear even without promise. words of & Co., Co. v. Panama R. R. 519, 246 524 N.Y. N.E. 418].) [159 Although it is true that Nebenzal did expressly agree not purchase independently and use them prevent plaintiff’s exploitation think picture, its “we . . . that promise fairly implied. such a to be The law outgrown has primitive stage its of formalism precise when the word was sovereign talisman, every slip was fatal. It takes a today. broader view promise may A lacking, yet be writing may whole obligation’ ‘instinct with an imperfectly expressed.” (Cardozo, J., in Wood Lucy, Lady v. Duff-Gor 222 don, 88, N.Y. 91 N.E. 214]; Moran [118 v. Standard Oil York, Co. New N.Y. 197-198 217]; N.E. Murphy v. North Light American & Co., Power F.2d 80-81; Coghlan Stetson, v. 19 F. 730; De Cesare v. Occhi *11 uto, 675, 64 677; N.Y.S.2d McCall Co. v. Wright, 133 App.Div. 62, 775].) 68 N.Y.S. carry The [117 contracts the inescapable implication parties that the contemplated that the extension of the Anet would be secured for their mutual benefit. New law, York eases, implies such in the contract a “cove good nant of faith and fair shall dealing,” that party neither may destroy take action that impair right of the party other anticipated receive the fruits the contract. (Kirke La Shelle Co. Armstrong v. Paul Co., 263 79, N.Y. 87 ; N.E. Underhill Schenck, v. 238 7, [188 163] N.Y. 15 [143 773, N.E. 33 303]; A.L.R. Spielman Price v. Motor Co., Sales App.Div. 261 626 836, N.Y.S.2d 839]; Genet v. [26 Delaware & Hudson Co., Canal 136 593, N.Y. 608, 611-612 N.E. [32 1078, 127]; Uproar 19 L.R.A. v.Co. National Broadcasting Co., 81 373, 377; F.2d Frohman Fitch, v. App.Div. 164 231 633, 634]; Goldberg, N.Y.S. Corp. 168-05 Levy, [149 v. 170 Misc. 292 304, N.Y.S.2d 306]; Corp. [9 Guardino Tank Proc.
300 696-697; Bennett v. Olsson, Vansyckel, v. N.Y.S.2d implied (N.Y.) 462, 472.) 4 Nebenzal breached that Duer pur for his own purchased when he used covenant parties given concurrent rights both were poses interest. “plaintiff . . . received majority opinion states that $20,000 paid in the form of the
‘the fruits of the contract’ obligations far Nebenzal’s contractual Nebenzal; so as per payment are concerned Nebenzal such nothing further remained part formed of the contract and his reser overlooks the fact that the to be done.” That statement right” to continue the Quader-Kino’s “unqualified vation of consideration in exploitation of its rights. grant the remake $20,000 paid for the addition to of the con Moreover, the York courts include as “fruits New expects party that either to derive from tract” benefit expectation appears subject contract when that of license Eights from reserved under a contract its terms. rights ini are as much the fruits of that contract as or sale 252 (Manners Morosco, v. U.S. tially created thereunder. ; Klaw, v. Harper 64 Bros. 317, 327 S.Ct. L.Ed. 590] Broadcasting Uproar Co., National 609, 613; 232 F. Co. v. Thus, plaintiff fruits of its 373, 377.) reserved as F.2d unqualified right to continue the contract with Nebenzal exploitation “Mayerling” and the to use impliedly covenanted not purpose. Nebenzal anything impair value of those He breached to do purchased the Anet but covenant, not when he rights to restrain exhibition when he used those picture. motion its analogous v. case are to those of Bennett
The facts of this therein as (N.Y.) Defendant Vansyckel, supra, Duer 462. years plaintiff. At its signed a for a term of lease obtained a new lease from the lessor expiration, defendant defend assignee. The court decreed that exclusion of his the bene as a constructive trustee for ant held the new lease ground that defendant breached plaintiff, fit of the adversely dealing by acting of fair implied his covenant obtain a renewal of the plaintiff’s expectation that he would By reasoning, same for his own benefit. lease implied not to secure and use clearly his covenant breached contemplated adversely parties that both plaintiff, attempt for their mutual benefit. plaintiff would to secure
301 justified by “as the New York cases is not its statement that court, there is no evidence of but fair found trial dealing part.” If in fact a con and honest on [Nebenzal’s] good or his breached, tract has been faith of defendant legal The belief in the rectitude of his action is immaterial. requirement speci dealing, of fair as the New York court has fically held, dependent upon presence is not or absence gravamen of cause intentional bad faith. The of a expectations of action is the fact that its contractual have destroyed, been and not the intention with defendant destroyed (N.Y.) (Bennett has them. v. 4 Duer Vansyckel, 462, 472; Armstrong Co., Kirke La 263 N.Y. Shelle Co. v. Paul 79, Harper 613; 89 232 ; Klaw, 609, N.E. Bros. v. F. [188 163] Ward v. 8 Whitney, 442, 446.) N.Y. The converse result majority opinion supported only reached can be if applicable disregarded; New York law is that cannot done express provision view of the that New York law should govern questions relating “all to the construction, enforce performance” ment and (Boole contracts. v. Union Co., Cal.App. 207, Marine 52 416]; Ins. 209 Mutual P. [198 Cohen, 262, Ins. Co.v. 179 106, U.S. 267 S.Ct. 45 L.Ed. [21 Ufe 181]; Pennsylvania-Central v. Corp., Duskin Airlines 167 F.2d 727, 730; Hurwitz, App.Div. Hurwitz v. 216 362 N.Y.S. [215 184, 189].) majority opinion The justify interpretation seeks to its of “ ground
the contract on the
‘this court will adhere to the
interpretation placed by
writings
trial
court on the
’ ”
parties.
interpretation
conduct
The
con
of a
tract or other written instrument, however, if
is no
there
extrinsic evidence thereon or if the evidence is without con
susceptible
flict
conflicting
question
of
inferences, is a
finding
law,
of the trial court thereon is not con
appeal. (Estate
clusive
21
Platt,
343,
Cal.2d
352 [131
; Jones
Pollock,
P.2d
v.
34
;
Cal.2d 863
P.2d
825]
[215
733]
Mining
Western Coal &
Co. v. Jones,
819,
27 Cal.2d
826-827
719,
;
P.2d
164 A.L.R.
Sugar
Union Oil Co. v. Union
[167
685]
Co.,
31 Cal.2d
306
470];
P.2d
Trubowitch River
v.
[188
Canning Co.,
bank
30 Cal.2d
182];
339
P.2d
Brant
[182
Dairies, Inc.,
v.
4
;
Cal.2d
133
P.2d
[48
13]
California
Norris,
Cal.App.2d 152,
Estate
78
;
159
P.2d 299]
[177
O’Brien,
Estate
Cal.App.2d 405,
;
P.2d
407 [168
432]
Savings
First Trust
Bank Costa,
&
v.