SWAN, Circuit Judge.
This action was commenced in the Supreme Court for the County of New [487] York and removed to the federal court on the ground of diverse citizenship. The plaintiff, James Mason, is an English actor of distinction and unique ability who has attained a high professional reputation in the United States as well as in England; the defendant is an experienced motion picture executive who is a citizen of the United States and resided in California when the action was commenced. With a view to engaging in a joint venture in the independent production of motion pictures, they signed in England, on or about June 5, 1946 the letter printed in the margin.1 Shortly thereafter a controversy arose between them as to the legal effect of this letter. Mason claims that it was not intended to be a formal contract setting forth in full the terms of their undertaking but was to be supplemented by a further and more complete agreement. Rose contends that the letter itself is a binding contract. By the present action, commenced on March 5, 1947, Mason sought a declaration that the letter does not constitute a valid contract and also sought an injunction to restrain Rose from claiming rights thereunder and thereby interfering with Mason’s efforts to obtain employment as a motion picture actor. The case came on for trial before Judge Knox without a jury. The trial judge held that the letter was not a valid contract because of its indefiniteness as to essential terms.2 Judgment was given for the plaintiff, from which the defendant has appealed.
[488] The parties are agreed that the New York conflict of laws rule should be applied to determine the law by which the legal effect of the June 5th letter should be tested. They are not, however, in agreement as to the law to which that rule points, the appellant asserting it is the law of California, where part at least of the performance was to take place, while the appellee maintains it is the law of England where the letter was drafted and signed. We think it clear that the law of New York makes the validity of a contract depend upon the lex loci contractus. Doubts, if any, which may have existed before the decision of Swift & Co. v. Bankers Trust Co., 280 N.Y. 135, 19 N.E.2d 992, were then dispelled. At page 145, of 280 N.Y. 19 N.E.2d page 997, the, court stated that
“The validity of an instrument is always determined by the law of the place where the instrument was executed.”
Another instance of the New York rule is In re Gantt, 297 N.Y. 433, 77 N.E.2d 323' where the validity of a contract to arbitrate was determined according to the law of, North Carolina where the contract was made.3
The appellant contends that even if the law of England, • as the place of making the contract, be deemed applicable, the result will be that California law controls, because the English law' does not make the law of the place where the agreement is executed the test of its validity but looks to the law “to which the parties intended, or may fairly be presumed to have intended, to submit themselves.”4 Professor Beale has stated that this rule “formulated by Professor Dicey expresses excellently well the purport of the English decisions.” 5 In accord is African Breweries, Ltd. v. King (1899), 2 Ch. 173, 183 where the court stated the rule in a slightly different formula,- selecting the law “of the country with which, to repeat Mr. West-lake’s phrase, ‘the transaction has the most real connection,’ and that is undoubtedly the South African Republic * * * ” 6 The appellant argues that an English court would find that the present transaction “has the most real connection” with California because, as the June 5th letter indicates, Mr. Mason was to “start work in California.” However, the contemplated corporation which Mr. Rose was to form for the purpose of producing films was described merely as an “American Company” and could have been organized in any state. Since the formation of the producing company was the very essence of the joint enterprise, the inference that the parties intended California law to govern their agreement is not cogent.7 But, as will appear from later discussion, we do not think it necessary to decide whether an English court would look to its own decisions or to California decisions to determine the validity of the letter contract.
If it be assumed that an English court would not look to the law of California, we think that the letter was too indefinite with respect to the parties’ respective rights and obligations to be given effect as a binding contract under the English
[489] decisions.8 If, on the other hand, it be assumed that an English court would look to the law of California, we find nothing in the California decisions which would lead to a different result. In that state, as in every other, a contract must be definite enough for a court to be able to ascertain what is the stipulated performance. Van Slyke v. Broadway Ins. Co., 115 Cal. 644, 47 P. 689, 690, 928; Wineburgh v. Gay, 27 Cal.App. 603, 150 P. 1003; Blake v. Mosher, 11 Cal.App.2d 532, 54 P.2d 492, 494.
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SWAN, Circuit Judge.
This action was commenced in the Supreme Court for the County of New [487] York and removed to the federal court on the ground of diverse citizenship. The plaintiff, James Mason, is an English actor of distinction and unique ability who has attained a high professional reputation in the United States as well as in England; the defendant is an experienced motion picture executive who is a citizen of the United States and resided in California when the action was commenced. With a view to engaging in a joint venture in the independent production of motion pictures, they signed in England, on or about June 5, 1946 the letter printed in the margin.1 Shortly thereafter a controversy arose between them as to the legal effect of this letter. Mason claims that it was not intended to be a formal contract setting forth in full the terms of their undertaking but was to be supplemented by a further and more complete agreement. Rose contends that the letter itself is a binding contract. By the present action, commenced on March 5, 1947, Mason sought a declaration that the letter does not constitute a valid contract and also sought an injunction to restrain Rose from claiming rights thereunder and thereby interfering with Mason’s efforts to obtain employment as a motion picture actor. The case came on for trial before Judge Knox without a jury. The trial judge held that the letter was not a valid contract because of its indefiniteness as to essential terms.2 Judgment was given for the plaintiff, from which the defendant has appealed.
[488] The parties are agreed that the New York conflict of laws rule should be applied to determine the law by which the legal effect of the June 5th letter should be tested. They are not, however, in agreement as to the law to which that rule points, the appellant asserting it is the law of California, where part at least of the performance was to take place, while the appellee maintains it is the law of England where the letter was drafted and signed. We think it clear that the law of New York makes the validity of a contract depend upon the lex loci contractus. Doubts, if any, which may have existed before the decision of Swift & Co. v. Bankers Trust Co., 280 N.Y. 135, 19 N.E.2d 992, were then dispelled. At page 145, of 280 N.Y. 19 N.E.2d page 997, the, court stated that
“The validity of an instrument is always determined by the law of the place where the instrument was executed.”
Another instance of the New York rule is In re Gantt, 297 N.Y. 433, 77 N.E.2d 323' where the validity of a contract to arbitrate was determined according to the law of, North Carolina where the contract was made.3
The appellant contends that even if the law of England, • as the place of making the contract, be deemed applicable, the result will be that California law controls, because the English law' does not make the law of the place where the agreement is executed the test of its validity but looks to the law “to which the parties intended, or may fairly be presumed to have intended, to submit themselves.”4 Professor Beale has stated that this rule “formulated by Professor Dicey expresses excellently well the purport of the English decisions.” 5 In accord is African Breweries, Ltd. v. King (1899), 2 Ch. 173, 183 where the court stated the rule in a slightly different formula,- selecting the law “of the country with which, to repeat Mr. West-lake’s phrase, ‘the transaction has the most real connection,’ and that is undoubtedly the South African Republic * * * ” 6 The appellant argues that an English court would find that the present transaction “has the most real connection” with California because, as the June 5th letter indicates, Mr. Mason was to “start work in California.” However, the contemplated corporation which Mr. Rose was to form for the purpose of producing films was described merely as an “American Company” and could have been organized in any state. Since the formation of the producing company was the very essence of the joint enterprise, the inference that the parties intended California law to govern their agreement is not cogent.7 But, as will appear from later discussion, we do not think it necessary to decide whether an English court would look to its own decisions or to California decisions to determine the validity of the letter contract.
If it be assumed that an English court would not look to the law of California, we think that the letter was too indefinite with respect to the parties’ respective rights and obligations to be given effect as a binding contract under the English
[489] decisions.8 If, on the other hand, it be assumed that an English court would look to the law of California, we find nothing in the California decisions which would lead to a different result. In that state, as in every other, a contract must be definite enough for a court to be able to ascertain what is the stipulated performance. Van Slyke v. Broadway Ins. Co., 115 Cal. 644, 47 P. 689, 690, 928; Wineburgh v. Gay, 27 Cal.App. 603, 150 P. 1003; Blake v. Mosher, 11 Cal.App.2d 532, 54 P.2d 492, 494.
The appellant asserts that an agreement creating a joint venture is in a special category and not subject to as strict a test of definiteness as contracts generally. The cases upon which he relies present situations where the parties had agreed in general terms upon a joint venture, and where usually the aggrieved party had put money into it.9 Whether or not the aggrieved party had put in money, the other party had either got possession of the proposed subject matter, or had at least been able to exploit it for his own advantage. When the aggrieved party called him to account, he answered that there had never been any contract because all the terms had not been agreed upon, and, since there was no valid contract, he owed nothing to the aggrieved party except to return the money, if any, advanced. In such situations the courts decide that this answer is not sufficient and hold that the party who took over or exploited the subject matter did so as a joint adventurer. In some of the cases there are statements that a joint venture differs from other contracts in that co-adventurers do not have to agree on all the terms of their undertaking.10 In our opinion the cases upon which the appellant relies are to be explained as instances of an imposed fiduciary duty rather than instances of making for the parties a contract which they never contemplated making and never made. In any event, all these decisions depend upon a benefit derived by the defendant out of the proposed subject matter of the common adventure.
In the case at bar the situation is quite different. There is no subject matter which one party has exploited for his own benefit. Each of the parties was to furnish his services to the venture — Mason as an actor, Rose as manager of the producing company. Neither had as yet contributed anything.11 Hence the cases relied upon by the appellant are not controlling and we must decide according to ordinary contract rules whether the June 5th letter is too indefinite to be given legal effect as a contract. We think it is. Take Rose’s engagements: He undertakes to make all financial arrangements for the production and distribution of films to be made by the company and generally to manage the company. Perhaps “management” could be made definite enough by reference to the practice of film producing companies, but “financial arrangements” are subject to a great variety of interpretations. Was he to furnish the necessary [490] funds out of his own resources? That was a possible but not probable interpretation. If not, how were the large sums required by a motion picture producing enterprise to be raised? Was he free to borrow and pledge the company’s credit on his own terms? Could he pledge Mason’s agreement to give the company his exclusive services for at least five years ? That might tie Mason up to others if the company failed, which was plainly contrary to Mason’s intention. How the company was to be financed was left wholly at large. In this aspect the letter proposed nothing more definite than an agreement to form a corporation to produce motion pictures, the stock to be equally divided between the parties. This is just as vague as the agreement to form a syndicate “for the purpose of developing” the mineral resources of a farm, which was held unenforceable in Douglas v. Baynes, [1908], A.C. 477. Turning next to Mason’s engagements: -He was.to give the company his exclusive; services for five years but was to have the privilege under some circumstances of working for other film-producing companies. ,T[ie company on its part was to be obligated to pay him a salary, to make at least two pictures a year and to “loan out” his services under stated circumstances.. We think it clear that the letter contemplated the making of a contract between Mason and the company specifying the obligations of each to the other, and that,, the terms of such contract had to be determined before the venture could be said to be set up as intended.
In each of the foregoing respects— omission of terms for the financial structure of the company and omission of terms to be embodied in a formal contract between Mason and the company — the letter agreement was too incomplete to constitute a binding contract. :
Judgment affirmed.