Mutual Film Corp. v. Morris & Daniel , 1916 Tex. App. LEXIS 390 ( 1916 )

CONNER, O. J.

This appeal is from a judgment for $1,750 in appellees’ favor as damages for breach of an alleged contract made with the appellant corporation.

[1] Pretermitting as immaterial a discussion of a number of assignments presented, we go at once to the vital question in the case. The appellees alleged that they were engaged in exhibiting moving picture films in the city of Abilene; that upon the date stated the appellant corporation agreed to furnish appellees with moving picture films delivered in Abilene weekly at a rental of $28. 50 per week, “so long as the plaintiffs continued in the picture show business in Abilene.’’ it was alleged that the appellees agreed to take and use the films at the price and upon the terms stated “as long as the plaintiffs continued in the picture show business in Abilene.” The evidence possibly supports the finding of the jury to the effect that the appellant corporation agreed to furnish films as alleged, but, as presented, we find the evidence wholly wanting to support the allegation of an agreement on appellees’ part to take the films at the price and for the period specified. The contract, therefore, is so plainly unilateral, and terminable at the will of either party that it seems only necessary to cite some of the authorities. See H. & T. C. Ry. Co. v. Mitchell, 38 Tex. 86; Kraft Holmes & Co. v. Sims, 1 White & W. Civ. Cas. Ct. App. § 404; Richardson v. Hardwicke. 106 U. S. 252, 1 Sup. Ct. 213, 27 L. Ed. 145; Dorsey v. Packwood, 12 How (U. S.) 126, 13 L. Ed. 921; Oil & Pipe Line Co. v. Teel, 95 Tex. 591, 68 S. W. 979; Tyler Ice Co. v. Coupland, 44 Tex. Civ. App. 383, 99 S. W. 133; Campbell v. Lambert, 36 La. Ann. 35, 51 Am. Rep. 1; E. L. & R. R. R. R. Co. v. Scott, 72 Tex. 70, 10 S. W. 99, 13 Am. St. Rep. 758; A. Santaella & Co. v. Otto F. Lange Co., 155 Fed. 719, 84 C. C. A. 145; American Cotton Oil Co. v. Kirk, 68 Fed. 791, 15 C. C. A. 540; Fowler Utilities Co. v. Gray, 167 Ind. 1, 79 N. E. 897, 7 L. R. A. (N. S.) 726, 120 Am. St. Rep. 344; Bradshaw v. Terrell Foundry & Mach. Co., 104 S. W. 509.

The contract, under the circumstances proven being terminable at the will of either party, was unenforceable, and appellant’s failure to continue furnishing films, as charged in the appellees’ petition, furnishes no legal ground for redress. We, accordingly, sustain appellant’s assignments attacking the action of the court in submitting the issue, the verdict of the jury thereon, and the judgment in appellees’ favor.

The conclusions so announced require of us a reversal of the judgment and a rendition of the judgment in appellant’s favor, and it is accordingly so ordered.

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