Mr. Justice CLARKE dissenting.
The decision of this case involves the construction of the written contract of January 19, 1912, as modified by that of July 20, 1914, and, centering its attention upon the claim of the defendant to moving picture rights the court dismisses in a single paragraph provisions in these contracts which seem to me to so clearly limit the rights of the defendant to a term expiring possibly in May, 1918, but certainly not later than May, 1919, that I cannot concur in the conclusion arrived at by my Associates.
'As to the duration of the defendant's rights we agree with the Courts below. We see no ground for converting the defendant's undertaking to continue the play for seventy-five performances during the season of 1913-1914, and for each season thereafter for five years, into a limit of the plaintiff's grant of rights. As was said in the District Court, it is a statement of the least that defendant was to do, not of the most that he was to have.'
This expression, that the third paragraph of the contract of January 19, 1912, 'is a statement of the least that defendant was to do, not of the most that he was to have,' is repeated in the opinion of each of the three courts as the sufficient reason for concluding, as the District Court said, that the contract gave to the defendant 'all the rights mentioned for all time.' It is not the first time that a catchy phrase has diverted attention from less picturesque realities.
My reasons for concluding that the rights of the defendant were limited, as the court says his obligations were limited, to a term expiring not later than the close of the theatrical season of 1918-1919, may be briefly stated.
The grant which it is concluded gave the defendant the exclusive license and liberty to 'produce, perform and represent' the play involved 'for all time' is in these words:
'First. The party of the first part hereby grants * * * to the party of the second part, subject to the terms, conditions and limitations hereinafter expressed, the sole and exclusive license and liberty to produce, perform and represent the said play in the United States' and Canada.
In terms this is a 'license,' and in terms also it is subject to 'conditions and limitations' to follow in the contract, which are found in the third and fifth paragraphs.
'The party of the second part [defendant] agrees to produce the play not later than January 1st, 1913, and to continue said play for at least seventy-five performances during the season 1913-1914 and for each theatrical season thereafter for a period of five years.'
The fifth paragraph provides that if the defendant shall fail to produce the play seventy-five times in any one theatrical year
'then all rights of the said party of the second part [the defendant] shall cease and determine and shall immediately revert to the said party of the first part.'
This third paragraph expresses the agreement of the parties as to what the defendant was to do in consideration of the grant by the plaintiff in the first paragraph, and reading it and the fifth paragraph together, as one, we have the extreme extent and time limit of the defendant's obligation and the penalty forfeiture, is provided for the failure to perform at any time within that limit. The court says that the third paragraph expresses 'the least (all) that the defendant was to do,' so that his obligation under the contract ended with the fv e-year period, which obviously would be not later than the close of the theatrical season of 1918-1919. This being true, when did the reciprocal obligation of the plaintiff expire?
That the obligation of the plaintiff continued 'for all time' is apparently derived wholly from the inference, as stated by the District Court, that the parties, if they had intended otherwise, 'could readily have fixed a time limit in the first paragraph by the addition of words such as 'for years from' or 'until' a stated date.'