
    Charles Frohman, Plaintiff, v. William G. Fitch and American Play Company, Defendants.
    First Department,
    November 6, 1914.
    Contract—agreement giving exclusive right to produce play—production by means of moving pictures.
    A contract with the writer of a play, giving a manager of theatres the exclusive fight to produce said play and permitting him to lease the same to stock companies, is violated by an agreement by the father of the writer, who succeeded to his interest, giving the right to another to produce said play by means of moving pictures, which method of production has become possible since the execution of the original contract.
    Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Oode of Civil Procedure.
    
      David Gerber, for the plaintiff.
    
      Bernard M. L. Ernst, for the defendants.
   McLaughlin, J.:

The plaintiff is, and on the 15th of February, 1900, was, the manager of certain theatres in the city of New York and elsewhere, and a large producer of plays throughout the United States. On the day named he employed one Clyde Fitch, a reputable writer of plays, to write a play for him, and the same was to be delivered on or before the first of January following. The agreement between them was in part as follows:

“Whereas, the said party of the first part agrees to write and deliver a play on or before January 1st, 1901, and
“ Whereas, the said party of the second part desires the exclusive right to produce or to have produced the said play in the United States of America and in Canada,
“Now, therefore, * * * the said party of the first part agrees to sell, assign and transfer, and hereby does sell, assign and transfer to the said party of the second part, the exclusive right to produce the said play in the United States of America and in Canada, for which sale, assignment and transfer the said party of the second part agrees to pay to the said party of the first part or to his authorized agent as follows: ”

Then follow provisions for the payment of $500 on the execution of the agreement, and if the play were accepted, a further sum of $500, both payments in advance of the author’s royalties, the royalties thereafter accruing to depend upon the receipts. There was also a provision in the contract to the effect that if the play were produced it was to be in a first-class theatre and in a first-class manner.

Fitch wrote the play, gave it the name of “ Captain Jinks of the Horse Marines,” and delivered it to the plaintiff, and the same was accepted within the time specified in the contract. It was produced with success by leading actresses in the principal cities of the United States, and was a valuable theatrical production.

The contract, some three years after its date, was modified by permitting the plaintiff to lease the play to stock companies, and providing that the receipts received from such leasings should be at the rate of fifty per cent to each of the parties to the contract.

When the play was originally produced it was only in first-class theatres, in which the price for orchestra seats was two dollars in large cities and one dollar and a half in other cities, the price for other parts of the theatres being relatively smaller, but when the play was performed in so-called stock theatres — that is, theatres run by stock companies — the prices varied from one dollar to fifteen cents, according to the city, theatre and location of seats.

Clyde Fitch died on September 4, 1909, and all his property including his rights under the contract referred to, passed to his father, the defendant William G-. Fitch. In March, 1914, William Gr. Fitch entered into a contract with the defendant American Play Company by which he assumed to grant to it the right to produce the play throughout the United States and Canada by means of moving pictures, and the Play Company has publicly announced that it intends to produce the play in that way.

According to the agreed statement of facts the Play Company knew of the original and subsequent contracts between Clyde Fitch and the plaintiff when it entered into the contract with William Gr. Fitch. The defendant’s counsel conceded, upon the argument of the question presented, that a moving picture presentation of the play in the manner contemplated by the Play Company would constitute the production of a play, but contends that the right to such a production was reserved to Clyde Fitch and, upon his death, passed to William Gr. Fitch. This contention is based upon the argument that at the time the contract was entered into neither of the parties contemplated production of the play by means of moving pictures. Even though it be conceded that neither of the parties had in mind the production of the play in that manner, nevertheless, I think it is a clear violation of the contract to permit the play to be so produced. The contract, as we have seen, gave to the plaintiff the i£ exclusive right to produce or to have produced the said play in the United States of America and in Canada.” This exclusive right was to protect the plaintiff in the property which he had purchased. That the plaintiff’s rights under the contract constituted property cannot be questioned. That by the aid of science it has, since the contract was executed, been made possible to produce the play in some manner not then contemplated, does not give William G. Fitch nor the American Play Company the right to destroy plaintiff’s property or dimmish the value of what he purchased. The fact that the plaintiff agreed to produce the play only in first-class theatres and in a first-class manner does not contemplate that the author of the play reserved to himself the right to produce it in a second-class theatre in a second-class manner. On the contrary, this provision was inserted in the contract to protect the author of the play by insuring to him that his production should only be produced in a creditable place and in such a way as would add to his reputation.

If the foregoing view be correct, then the plaintiff is entitled to a judgment enjoining and restraining the defendants from producing the play in the manner contemplated, with costs.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Judgment ordered for plaintiff as stated in opinion, with costs. Order to be settled on notice.  