Losche v. Hurtig

221 A.D. 775

Opinion

Judgment reversed upon the law and the facts, with costs, and complaint dismissed, with costs. The memorandum dated April 6, 1925, and “ Accepted ” April 13, 1925, was a complete contract, even though, as the» facts indicate, a more formal contract was contemplated. (Sanders v. Pottlitzer Bros. Fruit Co., 144 N. Y. 209; Spielvogel v. Veit, 197 App. Div. 804; No. 2 & 4 Roman Avenue, Inc., v. Goddard, 220 id. 138.) We find, however, that plaintiff’s assignor, Shuffle Along, Inc., was without power to make the contract. The contract between Shuffle Along, Inc., and the “ Authors,” upon which that corporation assumed to give producing rights to defendants, contemplated a personal relationship between Shuffle Along, Inc., and the “ Authors.” Shuffle Along, Inc., was to act as “ Manager ” in the production of the play, and the “ Authors ” were to be performers therein. It was not contemplated that Shuffle Along, Inc., should, without consent of the “ Authors ” sanction production by third parties, and the non-assignability clause of the contract was doubtless inserted to prevent such action on the part of the corporation. In view of this, and of the “ Authors’ ” failure to grant consent, the defendants were justified in refusing to proceed. Findings of fact and conclusions of law inconsistent with this decision are reversed, and new findings will be made in accordance herewith. Kelly, P. J., Manning, Kapper, Lazansky and Hagarty, JJ., concur. Settle order on notice.