ACTION FOR DAMAGES

Otago Witness, Issue 4028, 26 May 1931, Page 32

ACTION FOR DAMAGES

ALLEGED FILM CONTRACT “ EA’ANGELINE ” AND “ VENUS.” AVELLINGTON, Alay 19. Two sound synchronised motion pictures, “Evangeline” and “Venus,” were the subject of an action for damages taken in the Supreme Court to-day before the Chief Justice (Mr Justice- Myers). It was claimed by the United Artists (Australasia), Ltd., that an agreement was entered into with the Fuller-Hay- . . Theatre Corporation, Ltd., for exhibition by the Fuller-Hayward firm of the two pictures—“ Evangeline ”in AVellington and “Venus” in Dunedin—and that neither was shown. United Artists, Ltd., claimed for this alleged breach of contract £450 damages in respect of “ Evangeline ” and £4OO damages in respect to “ Venus.” Mr H. F. O’Leary with Air H. E. Evans appeared for the plaintiff, and Air A. Gray K.C., with Mr A. T. Young for the defendant. The statement of claim alleged that on July 25, 1929, the defendant entered into an agreement whereby the defendant agreed to exhibit the picture “ Evangeline ” at one or other of two of the AVellington theatres named before December 31, 1929. It was claimed that the agreement contained a clause providing that should the defendant fail to exhibit the picture in accordance with the terms the defendant should pay to the distributor as liquidated damages for breach of agreement the sum of £l5O. The picture was not exhibited or advertised by the defendant, and on Alarch 24, 1930, the defendant notified the plaintiff in writing that the defendant wished to cancel the agreement together with other agreements of the same nature in regard to the picture “ A r enus.” It was urged by the plaintiff that an agreement was entered into with the defendant for its exhibition in Dunedin. That picture also had not been exhibited by the defendant, and loss had been suffered by the plaintiff. The agreements and their terms advanced by the plaintiff were denied by the defendant in the statement of defence. It was contended further, that if it could be proved that the defendant made the agreements alleged, such agreements were indefinite, void, and unenforceable, inasmuch as no dates were fixed for the exhibition of the two pictures. Alternatively it was claimed that if the documents referred to constituted valid enforceable contracts, which was denied, the plaintiff was not entitled to the relief claimed. Air O’Leary dealt at length with the correspondence between the parties and referred to the terms of one of the alleged contracts. In July, 1929, Air Doyle, general manager for Australia and New Zealand of the plaintiff company, was in New Zealand, and in conjunction with Air Allen, New Zealand manager of the company, negotiated with Air Hayward and Air Quinn, representing the defendant company. Counsel contended that an agreement was made for the exhibition of a number of pictures, including the two which were the subject of the action. The film business at that time was in a transition stage. Sound synchronised and talking films were being introduced, and there was a certain amount of uncertainty as to how the new type of pictures would “ take on ” with the public. It was clear, it was submitted, that the two pictures were to be exhibited by the exhibitor before December 31, 1929. Air O’Leary then called evidence, the first witness being Bernard Charles Allen, New Zealand manager of the plaintiff company. AVitness said that sound synchronised pictures here were drawing good houses.

Air A. Gray, K.C. (for the defence) said the date fixed by plaintiff for the exhibition was long after the agreements expired and constituted the waiving of the right. Plaintiff did not deliver the film for exhibition and there could be no exhibition in the circumstances as the exhibitor was not allowed to fix the date. The “talkies” were so popular and synchronised films were not in public favour, that therefore little damage was suffered by the non-performance. It would have been useless to put sound pictures against the “ talkies.”

COURT RESERVES DECISION. AVELLINGTON, Alay 20. The action was continued to-day. The Chief Justice (Air Justice Myers) reserved his judgment. The first claim was for £450 damages for not exhibiting the film “ Evangeline ” at AVellington in accordance with an agreement and the second claim was for £4OO in respect of the film “ Venus,” to be exhibited at Dunedin and not exhibited. Air Young, for the defence, contended that no date had been arranged for exhibition within the period of the agreement and as damages could only be assessed subject to a date having been fixed no damages were recoverable. Air O’Leary replied to the contention that the plaintiff company had waived performance by not fixing the date for exhibition until after the agreement had expired by saying that that was forbearance and not abandonment of rights. There was not the disparity between sound synchronised films and “ talkies ” in 1929 that there was to-day, and the claim for damages was reasonable.