The film daily year book of motion pictures (1936)

agreed compensation. The doctrine of mitigation of damages has no place in such an action. Assuming, however, that it has, * * * the affirmative defenses based on that doctrine * * * were negatived by the trial court's findings, which must be deemed conclusive on this appeal." Producer and Artist — Arbitration In Universal v. Hymer^ a producer had hired an actor for a picture at $1,000 per week. The employment contract provided for arbitration* of any dispute or controversy arising thereunder. A controversy arose. The actor requested an arbitration. The matter was arbitrated. An award was rendered against the actor. The producer applied to the Superior Court for an order confirming the award.^ That Court refused to grant the application because of a California statute providing that the arbitration statutes "shall not apply to contracts pertaining to labor."" The California District Court of Appeal however, held the award should be confirmed and said : "Although in the course of his duties as an actor or 'artist,' Mr. Hymer may perform that which considered from his viewpoint may be 'labor,' to the lay mind, to all practical intents and purposes, the exercise of his talents and genius as an 'artist' may not be so classified. Essentially in tne contemplation of the ordinary individual, the work done by an actor or 'artist' is not that of a 'laborer, '_ but rather is that of a man engaged in a professional pursuit." COMMENT This decision is extremely important. It means that agreements between producers and artists which properly provide for arbitration are recognized and enforceable by the California courts. It follows that arbitration hearings before individual members of the industry or before an industry tribunal can be utilized instead of the long drawn out, technical (and sometimes costly) litigation, because an arbitration award fairly rendered may be confirmed by the court and judgment entered thereon. In other words, if a contract between a producer and an artist correctly provides therefor, a claim or a controversy under that contract can be submitted for determination to persons familiar with the business and their award (in the absence of fraud, corruption, partiality or misconduct) will be confirmed by the court and a judgment thereon will be honored just as though that judgment had been rendered upon the decision of a court and jury. Producer and Artist — Option Contracts In Ciimmings v. Columbia Pictures/ the California District Court of Appeal considered a contract between a producer and an actress which provided for six month options for upon thirty days notice and decided in favor of the actress. COMMENT The court held, under the facts, that the notice required had not been given and decided against the producer's contention that the notice had been waived. Artist and Attorney — Compensation Despite Dual Representation In Lessing v. Gibbons/ an attorney represented Dolores Del Rio and Edwin Carewe in a three-cornered deal with United Artists. They knew he was representing both. Miss Del Rio discharged him and he sued and recovered judgment for $16,000 which the California District Court of Appeal affirmed and said : "We are fully aware of the delicacy of the questions which can arise in cases where an attorney attempts to represent two parties whose interests might develop a conflict. I5ut in the absence of litigation or contemplated litigation, the general rule prohibiting the representation of clients with conflicting interests by a single attorney has never been so broadly stated as to preclude an attorney from ever accepting employment from two different persons merely because of a possibility of a conflict of interests. * * * In the present case, the evidence fails to disclose any such conflict of interest (between appellant and Mr. Carewe) as would prevent respondent from representing both of them with their consent in dealing with United Artists." COMMENT The Court held that the discharge was unjustified because Miss Del Rio knew and had consented that the attorney act for both and he was willing to withdraw his representation of Carewe if she objected. To the actress's contention that she owed the attorney nothing because he had been paid regularly his monthly retainer up to the date of discharge, the Court answered that the contract which was for four years "did not provide for a 'definitely apportioned exchange' of the services to be performed during any one period for the payments to be made during such period," and to the contention that the judgment should have been limited to the contract price, it answered that "there was no means of ascertaining the 'contract price' in the present case. Respondent had agreed to perform all necessary legal services for appellant during the term of the contract." Producer and Financier — "Puffing" Picture and Its Value In Penfield i'. Bennett Film Laboratories/ an investor advanced money to complete a serial. The picture was completed. The returns were insufficient to reimburse the investor. No profit was realized. He sued for fraud and breach of trust. He claimed he had been assured that the completed part of the picture was very good and if the balance was as good there would be no question about selling it. The Court held: "With such qualification in mind, statements that the picture when completed should sell for $75,000 with profit to plaintiff of $25,000 cannot be considered actionable fraud; * * * uncertainties as to actors, purchasers, and public taste being matters of general knowledge." As to the alleged breach of trust, the Court said : " * ♦ * it appears that the selling agent went ahead in a usual and reasonable manner to sell the picture, and that plaintiff's objection arises rather