Montgomery Enterprises v. Empire Theater Co. , 204 Ala. 566 ( 1920 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The suit was for injunction. The Select Pictures Corporation never appeared nor was brought into court as a party defendant. The appeal is from a decree overruling defendant's motion to dissolve a temporary injunction against Montgomery Enterprises exhibiting the photoplay in question, and for overruling demurrers to the bill; one of the grounds thereof being that Select Pictures Corporation was a necessary party defendant.

The two instruments evidencing the contract are averred to have been upon printed forms furnished by Select Pictures Corporation. It is a rule of construction of printed blank contracts — as insurance policies — that they be construed with care and caution in the enforcement of forfeiture clauses contained in such printed form. Courts are, however, not at liberty to make new contracts for parties where the language is unambiguous and they are susceptible of one reasonable construction. Cont. Cas. Co. v. Ogburn, 175 Ala. 357, 57 So. 852, Ann. Cas. 1914D, 377.

The two instruments in question evidencing the contract of date September 7, 1918, are to be construed as one transaction with reference to each other. Mobile County v. Linch, 198 Ala. 57,73 So. 423, 425; Dadeville Oil Mill v. Hicks, 184 Ala. 367,371, 63 So. 970; Satterfield v. Fidelity Mutual Life Ins. Co., 171 Ala. 429, 434, 55 So. 200; Sewall v. Henry,9 Ala. 24, 30; Whitehurst v. Boyd, 8 Ala. 375, 381; Holman v. Crane, 16 Ala. 570, 578; Prater v. Darby, 24 Ala. 496; Pierce v. Tidwell, 81 Ala. 299, 304, 2 So. 15.

Whether time is of the essence of the contract is determined from the two instruments when so considered, having in view the circumstances of the parties and the object each had in view and the subject dealt with therein. Elliott v. Howison,146 Ala. 568, 40 So. 1018; Dowling-Martin Co. v. Lysle Milling Co., 203 Ala. 491, 83 So. 486; Home Guano Co. v. International Agri. Corp., ante, p. 274, 85 So. 713; McFadden v. Henderson, 128 Ala. 221, 29 So. 640.

If a contract is of doubtful import as to any of its provisions, the practical construction put by the parties on such engagement therein is controlling of its meaning and must "often prevail over its literal meaning" (Birmingham Waterworks Co. v. Windham, 190 Ala. 634, 640, 67 So. 424; Crass v. Scruggs, 115 Ala. 258, 268, 22 So. 81; Robinson v. Bullock,58 Ala. 618, 622; Lowrey v. Hawaii, 206 U.S. 219,27 Sup. Ct. 622, 51 L.Ed. 1026; Chicago v. Sheldon, 9 Wall. 50,19 L.Ed. 594); and the whole contract will be construed so as to make it legal rather than illegal (McIntyre Lbr. Co. v. Jackson Lbr. Co., 165 Ala. 268, 274, 51 So. 767, 138 Am. St. Rep. 66; Ashley v. Cathcart, 159 Ala. 474, 480, 49 So. 75). In Comer v. Bankhead, 70 Ala. 136, 141, Mr. Justice Stone states Parsons' simple rules for the construction of contracts:

"It is a rule that the whole contract should be considered in determining the meaning of any or all its parts." 2 Parsons on Contr. 13.

"The contract should be supported, rather than defeated.". Page 15

"All the parts of the contract will be construed in such a way as to give force and validity to all of them, and to all of the language used, where that is possible." Page 16.

"All instruments should be construed contra proferentem; that is, against him who gives, or undertakes, or enters into an obligation." Page 19.

A trade custom, as to the subject and objects of the contract, known to the parties as prevailing in the community where the contract is executed and where to be performed, is by implication incorporated therein between the parties as respecting the subject-matter of such custom. Crandall-Pettee Co. v. Jebeles Colias Co., 195 Ala. 152, 157, 69 So. 964; Georgia Cot. Co. v. Lee, 196 Ala. 599, 72 So. 158, 160; German-Am. Ins. Co. v. Com'l Fire Ins. Co., 95 Ala. 469, 475,11 So. 117, 16 L.R.A. 291; Walls v. Bailey, 49 N.Y. 464, 10 Am. Rep. 407.

When the two instruments are considered under surrounding circumstances of the parties and objects in view at the time of the execution of the contract, we are of opinion, if time was of its essence, that the construction of the parties was that the same was for one year, expiring in November, 1919. On October 3, 1918, the Select Pictures Corporation, through its branch manager at Atlanta, Ga., wrote complainant that —

"Our impression is that your contract with us is to become effective on or about November 1st. If correct in this surmise, we will appreciate your giving us definite exhibition dates at the earliest possible moment, in order that we may give you absolute protection on the new releases,"

— and on December 12, 1918, again wrote:

"Dame Rumor * * * informs me that a report is being circulated to the effect that a local film distributing organization alleges that they have secured the services of Norma Talmadge. I desire to state most emphatically, and I base this statement on authentic advice from an authoritative source, that Select Pictures Corporation contract for Norma Talmadge pictures runs until November, 1919, and that no other distributing organization will distribute or release (new) Norma Talmadge pictures during that period. What may happen after that cannot affect Norma Talmadge production for practically one year. In view of the fact that Miss Talmadge has released but one of the eight contracted second star series pictures and that the contract held by Select Pictures Corporation is binding in its terms for the faithful performance of all the conditions of contract, it is slightly illogical that any other company could have secured the services of Miss Talmadge until the eight pictures above mentioned shall have been delivered; therefore we repeat most emphatically that no changes will be, nor can be, made prior to the completion of her contract with Select Pictures Corporation. All contracts written or to be written by Select Pictures Corporation for Norma Talmadge second star series of eight pictures will remain in force as written and the full contracted quota of pictures will be delivered by Select Pictures Corporation regardless of any rumors or allegations to the contrary."

The affidavit of Mr. Morris, general manager of the Select Pictures Corporation, showed that the negative of the picture in question, "The Isle of Conquest," was received by Select Pictures Corporation on or about September 20, 1919, and that picture was released on or about October 20, 1919; that its receipt was (in the opinion of the affiant) "nearly a month after the expiration of the period fixed by the contract as determining what pictures were covered by it and also after the cancellation of the contract." However, the date of expiration of the contract and of effective cancellation thereof are questions of law for the determination of the court. Of the time of performance it is pertinent to note that paragraph 3 of the one instrument is:

"The exhibitor agrees to play, in the order of delivery for exhibition, at least two of said photoplays during each and every period of one month commencing with the 1st day of November, 1918, and to play all of said photoplays on or before the expiration of one year from the date of exhibition of the first of said photoplays."

In the other:

"The distributor agrees that he will, during the year commencing on or about the 1st day of September, 1918, release eight photoplays, in which the above-named star (Norma Talmadge) shall enact the leading role; and it hereby grants to the exhibitor the license to exhibit one copy of each of said photoplays, at the above-named theater only, for two successive days. * * *"

In view of this apparent conflict of date of beginning of contract, the construction placed thereon by the parties will largely control in the matter.

The picture in question came to defendant, Select Pictures Corporation, and was subject to release before the expiration of complainant's contract in November, 1919, unless the contract was canceled by defendant's letter of September 16, 1919. When the averments of the bill and answers and the several affidavits are duly considered, we are not impressed that there was cancellation of the contract for reasons provided in the contract. It is recited in the contract that, "inasmuch as the distributor is dependent for its ability to perform this contract upon the production of the photoplays, * * * which may be prevented by the illness, injury, incapacity, death, or default of the artists, directors, and other persons or corporations engaged in producing the same," or prevented or delayed for various reasons beyond its control, as the conditions on which cancellation may be had on notice. None of these conditions of illness, injury, incapacity, death, or default of the artist Norma Talmadge or of her directors or other persons or corporations engaged in producing her plays, or the play in question, is shown to have intervened to prevent its receipt and release before the time of the expiration of the contract, in November; 1919. On the other hand, the contrary is averred and shown by the affidavits on which submission was had.

Under the contract between the parties the Select Pictures Corporation agreed to furnish complainant with certain photographic films portraying the artist in question, for exclusive first runs at its place of business in the city of Montgomery. The defendant Montgomery Enterprises and its manager, Wilby, are charged with a knowledge of such facts as to inform them or put them on inquiry concerning complainant's contractual rights in the premises; that they knew of complainant's having long exhibited first run pictures by Norma Talmadge; and a trade publication issued November 8, 1919, contained a criticism of the play in question. If such inquiry had been prosecuted to a reasonable extent in Montgomery, it would have led to a full knowledge of the facts. The equity of such bills, so far as pertains to an injunction against a defaulting party to a contract, has been sustained in Edmundson Drug Co. v. Partin Mfg. Co., 200 Ala. 208, 75 So. 966; Gilligham v. Ray, 157 Mich. 488, 491, 122 N.W. 111; Fleckenstein Bros. v. Fleckenstein (N.J. Ch.) 53 A. 1043.

In Friedberg v. McClary, 173 Ky. 579, 191 S.W. 300, L.R.A. 1917C, 777, 781, an action to restrain an insolvent from selling a large quantity of tobacco contracted to be sold to plaintiff, and to restrain designated third persons with knowledge of plaintiff's rights from purchasing was sustained by the Kentucky court. The justice said:

"We are aware that in Chambers v. Baldwin, 91 Ky. 121, 11 L.R.A. 545, 34 Am. St. Rep. 165, 15 S.W. 57, and other cases cited on the brief of defendants' counsel, it was held that one party to a contract cannot maintain an action against a third person who even maliciously advised and procured the other party to the contract to violate it, unless such person, by coercion or deception, caused the violation of the contract by the other contracting party against his will or contrary to his purpose. But in that case the action was brought, not, as here, to prevent the violation of the contract induced by a third party, but to recover of the latter damages for his malicious interference with the contract. In the instant case no damages are sought against Buckner or Gaston, Williams, and Wigmore; it is merely sought to enjoin them from interfering with the contract between plaintiff and the defendant McClary, upon the ground that such interference was malicious, or at least in bad faith, done with full knowledge of the plaintiff's rights under the contract; and that damages that might be recovered by the latter of McClary in an action at law because of his insolvency would not afford an adequate remedy. In such state of case relief by injunction has been allowed in other jurisdictions. Beekman v. Marsters, 195 Mass. 205, 11 L.R.A. (N.S.) 201, 122 Am. St. Rep. 232, 80 N.E. 817, 11 Ann. Cas. 332; American Law Book Co. v. Edward Thompson Co., 41 Misc. 396,84 N.Y. Supp. 225; Flaccus v. Smith, 199 Pa. 133, 54 L.R.A. 640, 85 Am. St. Rep. 779, 48 A. 894; Newport v. Newport Light Co., 84 Ky. 166; Wilkins v. Somerville, 80 Vt. 48, 11 L.R.A. (N.S.) 1183, 130 Am. St. Rep. 906, 66 A. 893; New England Phonograph Co. v. Edison (C. C.) 110 Fed. 26. The doctrine was also recognized in this jurisdiction in Turner v. Hampton, supra, wherein it was held that not only was injunction the proper remedy to prevent the violation by the trustees of a school district of a contract whereby they had employed the plaintiff to teach the school therein, but also to restrain another from teaching it under a later contract with the trustees."

In Int. News Service v. Associated Press, 248 U.S. 215, 239,240, 39 Sup. Ct. 68, 63 L.Ed. 211, 2 A.L.R. 293, the parties litigant were competitors in the distribution of news and its publication for a profit, and the bill sought to restrain the International News Service from using news from bulletins and excerpts from early editions, selling the same to defendant's customers. The insistence by the defendant was that, the bulletin boards and early editions having given the matter as news, the same became the common possession of all to whom it became accessible, and that the defendant had the right to convey such news to its customers and charge for same. In answering this contention Mr. Justice Pitney said:

"The fault in the reasoning lies in applying as a test the right of the complainant as against the public, instead of considering the rights of complainant and defendant, competitors in business, as between themselves. The right of a purchaser of a single newspaper to spread knowledge of its contents gratuitously, for any legitimate purpose not unreasonably interfering with complainant's right to make merchandise of it, may be admitted; but to transmit that news for commercial use, in competition with complainant — which is what defendant has done and seeks to justify — is a very different matter. In doing this defendant, by its very act, admits that it is taking material that has been acquired by complainant as the result of organization and the expenditure of labor, skill, and money, and which is salable by complainant for money, and that defendant in appropriating it and selling it as its own is endeavoring to reap where it has not sown, and by disposing of it to newspapers that are competitors of complainant's members is appropriating to itself the harvest of those who have sown. Stripped of all disguises, the process amounts to an unauthorized interference with the normaloperation of complainant's legitimate business precisely at thepoint where the profit is to be reaped, in order to divert amaterial portion of the profit from those who have earned it tothose who have not [italics supplied], with special advantage to defendant in the competition because of the fact that it is not burdened with any part of the expense of gathering the news. The transaction speaks for itself, and a court of equity ought not to hesitate long in characterizing it as unfair competition in business. The underlying principle is much the same as that which lies at the base of the equitable theory of consideration in the law of trusts — that he who has fairly paid the price should have the beneficial use of the property. Pom. Eq. Jur. § 981."

The rule is stated in Citizens', etc., Co. v. Montgomery L. W. P. Co. (C. C.) 171 Fed. 553, where injunction was maintained against the indemnifying by a certain business of a rival's customers against a recovery of damages growing out of their breach of contract where the purpose was to induce a breach of contract. The court said:

"While the law allows a trader, by mere solicitation, to persuade customers to change their business relations, without actionable liability therefor, though a broken contract is the result, it does not permit such a solicitor, even in the interests of competition, to go further, intervening actively between the contracting parties, as a dominant agency in producing a breach, by promise of indemnity to one of them to induce the breach. When the solicitor knowingly and intentionally goes beyond mere solicitation, to induce anotherman's customer to do business with him, and promises to holdthat other man's customer harmless for the breach of a contractwith him, he transcends the rights of the law of competition,has no 'sufficient justification,' and thereby becomes liable to him whose customer is taken over. Such conduct is an unlawful interference with another man's rights, for which he may maintain an action and recover nominal damages, although the contract be not actually breached in consequence of the solicitation." (Italics supplied.)

Complainant's right in the picture "The Isle of Conquest," Norma Talmadge starring, was exclusive as to its first exhibition at Montgomery, Ala. Its receipt and date of its release by Select Pictures Corporation were admitted by its manager to have been on or about October 20, 1919. Its first run privilege was of great value in the business of the kind in which instant parties are and were engaged. Wells v. First Nat. Exhibitors' Circuit, 149 Ga. 200, 99 S.E. 615, 618. Select Pictures Corporation having granted to complainant the exclusive privilege of showing said picture at its theater in Montgomery, Ala., before its exhibition at other theaters in said city was a valuable right secured by the latter under the contract, and other theaters in Montgomery could not legally exhibit the same in disregard of complainant's contract rights of first run, after notice or knowledge of complainant's said rights. This was beyond the rights of the law of competition. The averments of the bill are sufficient to charge notice or knowledge to the resident defendants of complainant's contractual right to first run exhibitions of Norma Talmadge pictures within the city of Montgomery, where complainant and defendant were prosecuting rival businesses and had done so for a long period antedating defendant's purchase of the picture in question. The omission on the part of defendant to seek information of complainant, who it knew was or had recently been in the possession of the exclusive right of exhibiting the first run of pictures by said artist, and knew of the custom throughout the country and in this city governing same, was a failure to prosecute an inquiry with due diligence. 2 Pom. Eq. Jur. (3d Ed.) § 607, p. 962; Ivy v. Hood, 202 Ala. 121,79 So. 587.

There is no adequate remedy at law for the protection of complainant's rights. A statutory action of detinue for the recovery of the property in specie will not provide an adequate remedy at law for a breach of the contract to furnish moving picture films. Raftery v. World Film Corp., 180 App. Div. 475,167 N.Y. Supp. 1027, 1032; 36 Cyc. 557. If detinue had been resorted to by complainant to secure possession of the film, defendant having the statutory period of five days in which to give bond and retain possession of the chattel (Code, §§ 3778, 3780; Nixon v. Smith, 193 Ala. 443,69 So. 117), and was exhibiting the same at the time the temporary injunction was issued, before the time fixed by the statute for delivery of the property, etc. (Code, § 3778), the film would have lost its value to complainant as a first run picture by defendant's continued exhibition thereof. The rule of the inadequacy of remedies at law in such cases is well stated in 36 Cyc. 557, thus:

"If the specific thing contracted for is desired by plaintiff, if it cannot be duplicated, and if his reason for desiring it or the other circumstances of the case are such that money damages would not be an adequate compensation to him for its loss, equity will decree its delivery to him. The jurisdiction for this purpose is an outgrowth of, and closely connected with, the remedy for the delivery up of chattels of this special nature tortiously withheld from their owners. In such cases the legal remedies of replevin and detinue are subject to defects of procedure which prevent the successful plaintiff from invariably recovering possession of the chattel."

We now come to the question: Had the lower court jurisdiction to enjoin the exhibition of the picture by defendant Montgomery Enterprises Corporation? Of jurisdiction, pertinent provisions of our statute are:

"Courts of chancery must take cognizance of cases in equity. * * * Against nonresidents, when the object of the suit concerns an estate of, lien, or charge upon, lands, or the disposition thereof, or any interest in, title to, or incumbrance on personal property within this state, or where the cause of action arose, or the act on which the suit is founded, was to have been performed, in this state." Code, § 3054; Moore v. Alton, 192 Ala. 261, 264, 68 So. 326; Treadaway v. Stansell, 203 Ala. 52, 82 So. 12.

In Iron Age Pub. Co. v. W. U. Tel. Co., 83 Ala. 498, 505,3 So. 449, 3 Am. St. Rep. 758, it is said of the statute (Code 1886, § 3414) that it confers jurisdiction on courts of chancery against nonresidents in four particular classes of cases: First, when the object of the suit concerns an estate of or lien or charge upon lands within this state, or the disposition thereof; or, second, any interest in, title to, or incumbrance on personal property within this state; or, third, when the cause of action arose in this state; or, fourth, when the act on which the suit is founded was to have been performed in this state. We quote from the opinion:

"The jurisdiction, as thus conferred, is plainly statutory and limited; and the general rule being that a foreign corporation cannot be sued unless it voluntarily appears to defend, it being impossible for the court to extend the arm of its process into a foreign state or territory for the purpose of reaching it, it follows that the bill cannot be retained, unless the case made by it falls within the statute, or else it is made to appear that this objection has been obviated by an actual appearance of the defendant, so as to confer jurisdiction of its person. Sayre v. Elyton Land Co., 73 Ala. 85; Galpin v. Page, 18 Wall. 350; Field on Corporations (Wood's Ed.) § 329, note 3; Camden, etc., Co. v. Swede Iron Co.,32 N.J.L. 15; Freeman on Judg. (3d Ed.) §§ 567, 568. The present case concerns neither land nor personal property, but a contract for personal services. As we have above said, the bill fails to aver with sufficient certainty that the contract arose in this state, or was to be performed within its jurisdiction."

The subject of that controversy was news dispatches to be delivered from time to time by the Associated Press, in the future, to the Western Union Telegraph Company at a point without the state and by it delivered to resident publishing companies. The purpose of that bill was not to enjoin the publication of press dispatches then in the possession of the publishing companies within the jurisdiction of the Alabama courts. In discussing the sufficiency of averments of the bill in the Iron Age Case, Mr. Justice Somerville points to indefiniteness with respect to when the contract was made, or where it was entered into, or where to be performed, whether in or out of the state, and says that the bill does not with sufficient particularity aver that the telegraph dispatches were, under the contract, to be delivered to the complainant by the New York Associated Press at Birmingham through the agency of the telegraph company, or only to the latter company in New York, to be transmitted to complainant's agent without further liability on the part of the Associated Press. It was upon such vague and indefinite allegations as to the place of execution of the contract by the Associated Press that the court held that such defendant was not brought "within the class specified by the statute, and therefore shows no jurisdiction in chancery." That this is the crux of that decision is shown by the further statement of facts reciting that the bill prayed an injunction "to enjoin and restrain said Western Associated Press and New York Associated Press from selling, transmitting, or furnishing and said Western Union Telegraph Company from delivering the 'Associated Press dispatches' to said News Publishing Company, said Herald Publishing Company, or to any one for them." From such averments it was not shown that an interest in, title to, or incumbrance on personal property within the state and its use or the act on which the suit was founded was performed within the state of Alabama, as required by statute. Thus is the decision of Iron Age Pub. Co. v. W. U. Tel. Co., supra, distinguished from the averred facts in instant case showing jurisdiction within the purview of the statute. In instant case the photoplay film in question had been furnished by Select Pictures Corporation to the defendant Montgomery Enterprises, in disregard of its contract with complainant, and the averments of the pleading were that said personal property (the photoplay film in question) was within the state at the time the bill was filed, in the city where complainant and the defendant competitor both conducted moving picture businesses, and was being exhibited by one of respondents. The object of the present suit concerns an interest in or title to the specific personal property within the state and its exhibition by the Montgomery Enterprises within the state and county where the bill was filed, in disregard of complainant's superior contract rights and to its irreparable injury. Woodstock Opr. Corp. v. Quinn, 201 Ala. 681, 79 So. 253.

Here the resident defendants are proceeded against as tort-feasors, against whom relief can be had in the absence of service on the nonresident joint tort-feasor, sending the photoplay (the personal property, the object or subject of the contract) into the state to violate its contract with complainant by its exhibition by a business rival. Jurisdiction is acquired from the fact that the personal property of Select Pictures Corporation in question was in possession of the resident defendant, Montgomery Enterprises, which was exhibiting it at the time the bill was filed, and which exhibition by it was within the city of Montgomery, in known disregard of complainant's superior rights acquired by contract with such nonresident defendant with respect to such personal property and its exhibition at the time and place in question. In N.Y. Phono. Co. v. Jones (C. C.) 123 Fed. 197, an exclusive license for the sale of patented articles within certain territory was permitted to bring suit in equity for an injunction against a third party, who with knowledge of the license conspired with licensor to violate complainant's contract rights by selling the patented articles within the territory. In such suit, based on the tortious acts of the defendant, and not upon any contract relation, it was held that neither the licensor nor any coconspirator was a necessary party. The knowledge of the contractual relations of the parties charged to the resident defendant was the essence of the charge. Under such circumstances a person receiving injury from the tortious acts of others has a remedy against one or all of the wrongdoers and may enforce his remedy in equity against the wrongdoing of one or all at his election. Edmundson-Randle Drug Co. v. Partin Mfg. Co., 200 Ala. 208,75 So. 966; Alcazar Am. Co. v. Mudd Colley Am. Co., ante, p. 509, 86 So. 209.

The cases by our court relied on by appellant are not to a contrary effect. In Rucker v. Morgan, 122 Ala. 308, 318,25 So. 242, the bill sought to have a trust agreement declared fraudulent and void, and the certificates of stock placed in the hands of the designated trustee delivered up for cancellation, and other certificates issued, and in aid of this injunctions were prayed. The bill averred that the respondent corporation issuing the stock, the designated trustee who had the certificates of stock in possession, and Miller, in whose name as agent the stock stood on the books of the corporation, were all nonresidents of the state of Alabama, residing in, and being residents of, the state of Illinois. The court held that the decree sought was to operate in personam, and the court must acquire jurisdiction of the person in order to compel compliance by personal service of process, or by the voluntary appearance of the defendants in court, that the foregoing statute was not so comprehensive as to confer upon the chancery court jurisdiction to proceed to final decree to the end prayed, and further said:

"Service of its process is limited and confined to the territorial boundary of the state, and in the absence of a voluntary appearance and submission to its jurisdiction by a nonresident defendant, it can acquire no jurisdiction as to such a person, except in cases provided for in the above statute, and then not of the nonresident personally, but in the language of the statute, 'against nonresidents,' and to the extent and purpose of dealing with his interest in the subject-matter of the suit, and over which the court has rightfully acquired jurisdiction. The cases mentioned in the statute are stated with sufficient clearness not to admit of a misunderstanding. The jurisdiction of the chancery court as to nonresidents being, therefore, purely statutory, must, as to such jurisdiction, be held strictly within the provisions of the statute."

The statute was also considered in Tigrett v. Taylor,180 Ala. 296, 303, 60 So. 858, where the bill was to enforce a trust, to compel an accounting where the incidental relief was the foreclosure of mortgages on lands in the state, which mortgages were part of the securities to be accounted for, the facts being such that complainant's right to foreclose (it was said) could not be determined until after an accounting. A pronouncement of the court was:

"Whether there can or should be any proceeding as against the land in Alabama, taking the averments of the bill as true, is contingent upon and merely incidental to the accounting and settlement of the trust. As there can be no discovery, accounting, or settlement of the trust, it cannot be known that complainant has any estate in, lien or charge upon, the lands in Alabama. The only interest Tigrett is shown to have in the lands is that of mortgagee; if the mortgagor should pay off the mortgage debt or redeem, then neither Tigrett nor complainant would have any possible interest therein. So the interest in the lands is wholly contingent upon the main equities of the bill, and is merely incidental to the relief sought."

Adverting to the Iron Age Case, where, speaking of the statute (Code, § 3054), the important distinction is made as to the jurisdiction of a court of equity under the statute, it is said:

"The present case concerns neither land nor personal property, but a contract for personal services."

The instant case is not a contract for personal services, but for the delivery of specific personal property of unique and artistic value, controlled exclusively by Select Pictures Corporation, and which personal property was at the time of filing the bill within the jurisdiction of the court, and was then being used by complainant's competitor in business in disregard of its contract rights with respect to such personal property. The right of injunction has been decreed and enforced as to contracts for such personal property. In Sou. Iron Equip. Co. v. Vaughan, 201 Ala. 356, 357, 78 So. 212, 213, L.R.A. 1918E, 594, it was stated that,

"The general rules obtaining for specific performance are that: 'Equity will not, in general, decree the specific performance of contracts concerning chattels, because their money value recovered as damages will enable the party to purchase others in the market of like kind and quality. Where, however, particular chattels have some special value to the owner, over and above any pecuniary estimate — pretium affectionis — and where they are unique, rare, and incapable of being reproduced by money damages, equity will decree a specific delivery of them to their owner, and the specific performance of contracts concerning them.' "

See 11 Michie's Dig. p. 983, 984, §§ 47, 48; 5 Pom. Eq. Rem. (2d Ed.) 2170, 2171; 36 Cyc. 557, 559, and notes.

The fact that Select Pictures Corporation was not a party by appearance or service of process is important only as affecting the scope of the decree entered on February 2, 1920, which is as follows:

"* * * The said Montgomery Enterprises, a corporation, Select Pictures Corporation, and R. B. Wilby are hereby enjoined from exhibiting or otherwise displaying the moving picture known as 'The Isle of Conquest,' in which Norma Talmadge performed as a star, at the Strand Theater or any other theater in the city of Montgomery, Ala., until the Empire Theater Company shall have had the first run" of said motion picture at said Empire Theater.

The time and place of complainant's exclusive right to exhibit the personal property being acquired and fixed, and the contract being interpreted by the parties of its ambiguous provision as to when the year of its operation began, the use by another person with knowledge or notice of said personal property contrary to contract, within the jurisdiction of the court, may be enjoined in cases provided by the statute. Code, § 3054. This extraordinary relief may be granted in a proper case, as provided by statute, where the personal property, the object of the contract and its use, is within the jurisdiction of the court, though specific performance may not be enforced against its nonresident owner and offending party to the contract who has not been subjected to or submitted to the jurisdiction of the state court.

It is only by injunction that the instant contract rights of the parties may be safeguarded against the exhibition of the photoplay film by a business rival. If publication against Select Pictures Corporation as a nonresident be first required before issue of the temporary writ preventing the illegal use of the photoplay film in the exhibition of the picture, which was being exhibited within the jurisdiction of the court when the bill was filed, its subsequent prohibition by the final decree would have been nugatory, since the "first run" exhibition would have been completed by respondent, and complainant would have sustained its irreparable injury sought to be prevented by the injunction. The temporary injunction against Select Pictures Corporation as to its use of said personal property will not be made permanent without compliance with our statutes providing due notice by publication to such nonresident owner whose personal property was the subject of the suit and the object of the contract. Windsor v. McVeigh,93 U.S. 274, 277, 278, 23 L.Ed. 914; Pennoyer v. Neff,95 U.S. 714, 24 L.Ed. 565; Grannis v. Ordean, 234 U.S. 385,34 Sup. Ct. 779, 58 L.Ed. 1363; Amer. L. Co. v. Zeiss, 219 U.S. 47,31 Sup. Ct. 200, 55 L.Ed. 82; Gill v. More, 200 Ala. 511, 76 So. 453; Exchange Nat. Bank v. Clement, 109 Ala. 270, 19 So. 814.

The decree for temporary injunction was sufficient to prevent Montgomery Enterprises and its agent, Wilby, from exhibiting at Montgomery at the time indicated the personal property in question of Select Pictures Corporation contrary to complainant's contract rights with the latter corporation and to its irreparable injury. The demurrer to the bill was properly overruled.

The decree of the circuit court, in equity, is affirmed.

ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.