
    Wid Gunning Inc. vs Josiah Pierce and Sons,Appellants.
    No.8921
    Charles F.Claiborne,Judge.
    April 2nd 1923
    
      
    
   Wid Gunning Inc vs Josiah Pearce and Sons,Appellants

No.8921

Charles F.Claiborne,Judge.

This is a suit for rental of a film

that entitled the * Girl from God's Country " to "be exhibited by the defendant at hiB theatre for a period of seven days beginning May 12th 1922 for the price of ‡300,in accordance with a written contract which provides on the back thereof as follows; " Clause 5 - The Exhibitor agrees to pay to the Distributor, not later than seven full days in advance of the first play date of each picture,the full amount of the rental stipulated in this contract.The provisions hereof relating to the time of payment,shall be deemed as or the essence of the agreement."

Tne plaintiff further alleges that it tendered the film to defendant m time for exhibition on May 12th and that defendant failed to pay for and receive the same.

Defendant admitted the contract but denied the other allegations.He alleged that the above clause 3 of the contract was modified by the following words printed across the face of the contract,as follows;* To be played and paid on dates Stipulated in the contract" : and that the meaning oi those words is that the film should be delivered ( h 1922 in time to be exhibited on said date,and to be 'eepi-é for on me date and at the time of saia delivery;* that plaintiff well knew that said film was to be exhibited at defendant's theatre at ton -O'clock A-.M, Friday May 12th and that plaintiff shipped said film to defendant by express C.0.D.,and that the Express Co. did not tender said .film to defendant until Saturdav May 18th ah 9 A. .M. ,and that defendant refused the same as time was of the essence of the contract.The defendant further alleged that the contract was null” for the reason that It lacks mutuality in that it is not bixa-ceral in its provisions and character".

There was judgment in favor of plaintiff and defendant has appealed.

We fail to perceive any force in the plea of want of mutuality.

Clause 1 upon the hack of the contract provides:

"Clause I-The Distributor agrees that it will use its best efforts to have a copy- of the film to be shown by the Exhibitor,at its nearest branch office,for the delivery to the Exhibitor in time for the showing in the theatre aforesaid on the date or dates stated in the notice hereinabove •refered to and etc ".

The evidence satisfies us that the defendant was informed on the morning of May 11th,at about 9 O'clock,that the film had arrived in New Orleans and was in the Express office to be delivered C.O.D. ; that at about 2 O'clock of the same day the defendant sent to plaintiff in Atlanta,Ga.the following telegram.:" Girl from God's Country here-stop-release qulok for screening this evening,mail check to-morrow,answer, signed- J.E.Pearce;that on the morning of May 12th,between 9 and 9-15,the defendant's office telephoned to the Express Co. to hold the films and that they would send for them.

The defendant did not sehd for the films;They were tendered to them the next day,and by them refused.

A lessee who refuses to pay the price of the lease and to accept delivery of the thing leased,at the time stipulated,becomes at onoe bound to the lessor for the f.uj.1 price of the lease. 48 A 1313 .

Judgment affirmed.

March 26th 1923 .  