The law of motion pictures (1918)

220 THE LAW OF MOTION PICTURES In Levison v. Oes 3 the contract between the parties provided for the sale and delivery of a single film entitled “In the Hands of Impostors” by the defendant to plaintiff. The defendant refused to deliver the film and this action was brought to recover for the breach. As to the measure of plaintiff’s damages the court held that “The ordinary rule of damage for the breach of such a contract is the difference between the market value of the film and the contract price. ... I think it is fair to assume that there was no market price in this city for this particular film, and that the plaintiff is therefore entitled to recover as special damages both the expenses incurred by him in preparing to exhibit the film and loss of profits. ... In this case, however, I do not think that he has properly proven them. In order to recover anticipated profits under actual contracts, the plaintiff must plead and prove that he has made such contracts and that the defendant when he agreed to sell the film, knew that the plaintiff had made or contemplated making such contracts which he could not fulfill unless the defendant delivered the film to him.” Further on in the opinion the court furnishes a basis for the measurement of damages as follows: — “Before the jury can however return a verdict based upon loss of future profits the plaintiff must present to the jury some but also when the plaintiff in other respects did what it was required to do under the contract, and that hence the special defenses aforesaid are good and the plaintiff is not entitled to re cover the full amount of $14,000, as the moneys received from the other exhibitor should be offset against the claim. 3 Levison v. Oes (1917), 98 Misc. (N. Y.) 260.