
    Walter Hackett, Plaintiff, v. Eugene Walter and Harry H. Frazee, Defendants.
    (Supreme Court, New York Special Term,
    April, 1913.)
    Contracts —■ execution of — fraud — notice to other party of election to disaffirm.
    Injunctions — action to restrain dramatic representation — election to disaffirm contract.
    Where a party claims that he has been induced to execute a contract by the fraud of the other party, he cannot accept the benefits of the contract and then refuse to perform it on his part; but on the discovery of the alleged fraud it is his duty to return the benefits secured under the contract and give notice to the other party of his election to disaffirm.
    Where, in an action to restrain the dramatic representation of a play claimed to be the joint production of plaintiff and one of the defendants, it is undisputed that in addition to the payment to him of $3,000 under an agreement the execution of which, as shown by the evidence, was not induced by fraud, plaintiff gave a receipt in his own handwriting for $200 in full payment and in release of all claims which he may have had in the play, defendants are entitled to judgment in the absence of evidence that at any time plaintiff gave notice of his election to disaffirm the contract, ■ or tendered back thé $3,200,
    Action for an injunction.
    Wise & Lichtenstein, for plaintiff.
    Nathan Burkan, for defendants.
   Cohalan, J.

Plaintiff, a playwright, brings this action to restrain the defendants from presenting the play entitled “ Fine Feathers.” He .asserts that the play is being produced as the individual work of the defendant Walter, but that in fact it was the joint work of Walter and himself. In a word, the plaintiff claims that the defendants have fraudulently deprived him of his rights growing out of the joint authorship of the play. The evidence does not sustain this contention. It appears that the plaintiff wrote the scenario and theme of the play entitled “ C. O. D.,” and on the 17th day of November, 1910, with one Case, who was his creditor in the sum of $3,000, he transferred it to the defendant Walter. The latter, who is a playwright, agreed to develop and adapt the play for stage representation, and to pay to Case twenty-five per cent, of all the royalties received from the venture; there was an additional covenant in the agreement that the name of the plaintiff should be printed on all advertising matter as the co-author of the play. This agreement conveyed in specific terms the entire title in the play to the defendant Walter. As the owner thereof he was free to change, recast and modify to any extent its contents. ' He had a right to contract for the production of the play in any form he desired. After the agreement was made, Walter elaborated the dialogue, made various changes in the work and introduced two new acts. This play was produced by Charles Dillingham, and after three weeks of performances it was abandoned as a failure. The Shuberts thereafter produced the play under the title of “ Homeward Bound ” with a competent cast. The piece played to a losing business and further performances were suspended: Another attempt was made to produce it by Margaret Illingtoh, but after three performances the play was considered impossible. During this time it was billed as “ a play by Eugene Walter, founded on a theme by Walter Hackett. ’ ’ The play was then retired for over a year and a half. In the meantime the defendant Walter turned the play from a comedy into a tragedy and negotiated with the defendant Frazee for its pro-

duction. The defendant Walter maintains that at .this stage he would do no further work on the play unless he secured a bill of sale of it from the plaintiff and Case. On the 4th day of June, 1912, the plaintiff executed a further agreement by the terms of which he sold all his rights in the play to the defendant Walter. This agreement, in part, reads as follows: ‘ ‘ The party of the second part (Walter) shall be released and discharged from all obligations under the said agreement dated November 17., 1910, to the party of the first part (Hackett), and the scenario and play and the stage versions and several titles thereof, and all the rights therein for all countries, including the publishing rights, the dramatic rights, the right to use the same for mechanical reproduction, and the right to secure copyrights and extensions and renewals of copyrights therein, and in every part thereof shall belong to and be the absolute property of the party of the second part, free from any right, title, interest of claim of the party of the first part. And upon the payment to the party of the first part of royalties aggregating the sum of three thousand dollars ($3,000.00), the party of the first part agrees and consents that the said Frank M. Case, Jr., assigns, transfers and sets over unto the party of the second part all contracts, accounts and demands heretofore assigned by said party of the first to said Frank M. Case, Jr., to secure the payment of the sum of three thousand dollars ($3,000.00) owing by said party of the first part to the said Frank M. Case, Jr., and the party of the first part agrees to assign, transfer and set over to the party of the second part all his right, title and interest in the. above mentioned contracts, accounts and demands.” The plaintiff states that he read over this agreement and that he wrote out in his own handwriting a receipt for $200 in full payment and in re-

■ lease of all claims which he may have had in "the play entitled “ Homeward Bound.” The testimony shows that no fraudulent inducements were employed in the execution of this agreement. At least three failures were charged up against the play. It was entirely speculative whether the play, as changed and rewritten by Walter, would achieve the success that it afterward attained. The agreement was signed on June 4, 1912, and the play was not produced in Chicago until August 12, 1912, when in fact it did become popular. That it became a success was undoubtedly due to the ability and enterprise of the defendants. There is no dispute of the fact that the plaintiff directly and indirectly received for the play $3,200, and after the numerous failures of the play under different titles the plaintiff felt that he should dispose of it. It is not the province of this court to make a new contract for the plaintiff, nor to relieve him from the terms of a contract in the execution of which he admits that he used poor judgment. Moreover, where a party claims that he has been induced to execute a contract by the fraud of the other party, he cannot accept the benefits of the contract and then refuse to perform it on his part. It was incumbent upon the plaintiff on the discovery of the alleged fraud to return the benefits that he secured under the contract and to give notice to the defendants that he elected to disaffirm the contract. Outcault v. Bonheur, 120 App. Div. 171; Hallahan v. Webber, 7 id. 122; Gould v. Cayuga County Nat. Bank, 86 N. Y. 75. There is no evidence in the case that the plaintiff at any time notified the defendant Walter that he elected to disaffirm the contracts, nor is there any evidence that he ever tendered back the $3,200 received. Judgment for the defendants.

Judgment for defendants.  