Leibfreed v. Kleine

Plaintiff was treasurer of the Helen Keller Film Corporation which was the producer of a motion picture called “ Deliverance.” It entered into an agreement with the defendant (described therein as the distributor), by which the defendant secured the right to market and distribute the picture. The distributor advanced to the corporation $49,000 and the agreement provided that he was to retain seventy-five per cent of the gross collections and pay the producer the remaining twenty-five per cent until the $49,000 was repaid. This arrangement was not, however, to affect the final accounting between the parties, which was to be on the basis of thirty-five per cent of the gross receipts *649to the distributor and sixty-five per cent to the producer. It was recited in the agreement that subject to the said provisions as to reimbursement of the $49,000, the gross receipts were to be so divided and that for three years from the date of the agreement the plaintiff should be entitled to receive a salary of $500 per month for his services as treasurer of the corporation, “ which sum shall be charged as an operating expense of the picture and shall be deducted from the gross receipts before their distribution.” The complaint alleges an absolute personal agreement by the defendant to pay to the plaintiff this salary for the said term of three years. It is not predicated upon the theory that the plaintiff’s salary was a charge upon the gross receipts. On the trial no evidence was adduced to show that there had been gross receipts, and to the exclusion of such evidence no exception was taken by the plaintiff. From the judgment based upon the dismissal of the complaint by the trial justice the plaintiff appeals.

The agreement cannot be construed to place upon the defendant a personal obligation to pay the plaintiff’s salary as treasurer of the corporation irrespective of the existence or amount of receipts. The complaint and the theory of the trial limit plaintiff to this claim. We do not determine what his rights under the agreement may be in some other form of action.

The judgment should be affirmed, with costs.

Dowling, P. J., Merrell, Finch and McAvot, JJ., concur.

Judgment affirmed, with costs.