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DISTRIBUTOR — IN GENERAL
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After the amendment of the complaint the defendants interposed answers in which they set up as a partial
tiffs is dependent in fact upon the gross receipts obtained by the defendant from the exhibition or use or lease of the pictures. By the terms of the agreement the compensation or rental to be paid is an advance payment in a single sum, eqtial to the actual cost to the plaintiffs of manufacturing the pictures, not exceeding, however, the sum of $14,000, plus 50 per cent, of the gross receipts obtained by the defendant in producing the pictures, after the defendant shall have first reimbursed itself from these receipts to the extent of the advance payment. Although the contract embodies some of the substantial features of a joint venture, nothing is stated therein which would indicate that the parties so regarded it, and upon the argument of this motion no suggestion was made by either party that it is a joint venture, and, besides, it lacks the element of ‘profits.’ The result of this conglomerate relationship is that the learned counsel for the respective parties variously attempt to apply the rules of law applicable to a sale to a lease. It is also claimed on the one
side that the contract implies a fixed or absolute obligation in part and the right to uncertain damages in part. On the other hand, it is contended that the situation set forth in the complaint would permit the plaintiffs only to [recover] general or special damages, if provable, as for a breach of the entire contract. Eliminating the technical points urged upon the argument as to whether the complaint sets forth any cause of action, the conceded facts apparent from the complaint and answers are that the plaintiffs and the defendant Popular Pictures Corporation entered into a written agreement, annexed to the complaint; that the plaintiffs tendered a negative and films in alleged conformity with the provisions of the contract; that the defendant refused to accept them, and that the plaintiffs subsequently leased the production to third parties, upon which considerable sums of money have thus far been paid to the plaintiffs. By the contract the defendant agreed to pay as rental, in advance, a sum not exceeding $14,000, upon the receipt by it of ‘the original