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July 7, 1948


The opinion of the court was delivered by: KNOX

Plaintiff is an actor of distinction and unique ability. His stage career in England began in 1931, and since 1933, he had there performed in numerous motion pictures. He became a featured played in 1937, his name appearing immediately below the film title. Since 1938, he has been starred, that is, his name has appeared above the film title. Plaintiff's popularity was considerably enhanced by a picture in which he starred in 1943. Thereafter, his English success was assured, and he became widely known in the United States and other countries where these films have been exhibited.

Defendant is a motion picture executive with over twenty years experience in the industry. In 1938, he went to England and became manager of all the Paramount companies in that country, these companies being wholly owned subsidiaries of a major American film producing corporation.

Toward the end of 1945, plaintiff and defendant entered into negotiations with respect to the consummation of a contract between plaintiff and the parent Paramount Company whereby plaintiff would here make pictures for that organization. However, no contract was signed, Paramount refusing Mason's terms in early 1946. Thereafter, Mason and Rose gave consideration to the possibility of making a contract between themselves, the basic notion being the establishment of an independent producing corporation in the United States. Pictures were to be made here, and the parties themselves were to own the production corporation. Its principal asset would be the services of plaintiff. These negotiations resulted in a writing which reads as follows:


 'Brook Street, W.1

 '5th June, 1946

 'James Mason, Esq.,

 'Olleberrie Farm,




 'Dear James:

 '1. Confirming our agreement I will form an American Company before you go to America next fall for the purpose of producing films starring yourself. The shares of this Company are to be divided equally between us, i.e. 50% to you and 50% to me. It is understood that this split may be altered later if say an ace director, agreeable to both of us, comes into the Company and we agree to give him some of the shares.

 '2. I undertake to make all financial arrangements for the production and distribution of films made by our Company and generally to manage the Company.

 '3. The story, script, director and cast of each film made by the Company are to be approved by you.

 '4. Commencing not later than sixty days after your arrival in California next fall, the Company will pay you salary of $ 2,000.- (two thousand dollars) per week and commencing at the same time the Company will pay me salary of $ 1,000.-(one thousand dollars) per week. The Company will advance your traveling and other expenses until your salary commences.

 '5. You agree to give the Company your exclusive services for at least five years and the Company will agree to make at least two pictures per year commencing from the date you are ready to start work in California. It is intended that all pictures in which you appear are to be produced by our Company but if at any time you find a good story in which you wish to appear and our Company is unable to either acquire the film rights in the story or make a deal with the person firm or company owning such rights for the production of a picture based thereon, then in these circumstances it will be agreed that our Company will approve a loan out of your services to such other Company for the purposes of such picture.

 'The above sets forth the agreement made between us to which I agree.

 'Yours sincerely, '(s) D. E. Rose

 'I agree the above

 '(s) James Mason'

 Due to differences between the parties, the terms of the foregoing writing have never been executed. Mason came to this country about a year and a half ago. Despite his popularity as an actor, he has been unable to obtain any employment in the motion picture industry. Potential employers are unwilling to assume the risk of a lawsuit with Rose.

 Shortly after Mason's arrival in New York, Rose filed suit against him in California, alleging a contract for Mason's exclusive services. Mason never having been in California, process could not be served upon him. Nevertheless, the trade papers reported the filing of the complaint, and it may be safely assumed that all large producing companies are aware of the claims that Rose asserts.

 In the summer of 1947, Mason negotiated a contract with Universal Pictures Company, a major studio, under which he was to produce and star in a film to be financed and distributed by Universal. After the contract was reduced to writing and ready for signature, Universal, on the advice of counsel, refused to execute the agreement unless Rose would agree to limit himself in a suit against Mason, and make no claim against the corporation. Defendant refused to comply with this request. As a result, the proposed contract was never signed.

 Plaintiff now seeks to a judgment which will declare that the above document, dated June 5, 1946, does not constitute a binding agreement inasmuch as it was not intended to be a contract, and because, also, its provisions are not sufficiently definite, certain and complete as to be binding upon the parties. Alternatively, if the writing does constitute a contract, plaintiff asserts that defendant has breached and abandoned the same. Aside from a general denial of plaintiff's averments, Rose has interposed a counterclaim in which he asks that Mason be enjoined from exercising his talents for persons other than himself, and that he be awarded damages for plaintiff's default.

 In making approach to the question as to whether the memorandum of June 5, 1946 was intended to be a contract, the first problem that presents itself is as to the admissibility of evidence which will throw light on the intention of the parties. The document in question was signed in England, appears to call for performance in California, and is sued on here. Under ordinary circumstances, Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, 114 A.L.R. 1487, would require me to decide whether the admissibility of evidence of intention is procedural or substantive, and if the latter, to determine the applicable law of this state. Sampson v. Channell, 1 Cir., 110 P.2d 754, 128 A.L.R. 394; Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477. Fortunately, these problems can be avoided inasmuch as in each of the above mentioned jurisdictions such evidence is admissible. Hussy v. Horne-Payne, 4 App.Cas. 311 (1879); Pattle v. Hornibrook, 1 Ch. 25, 17 Digest 308, 197 (1897); Pym v. Campbell, 6 E.& B. 373, 374, 25 L.J. 277 Q.B.; California Code of Civil Procedure, sec. 1856; In re H. Hicks & Son, 2 Cir., 1936, 82 F.2d 277; Grierson v. Mason, 1875, 60 N.Y. 394.

 If it were necessary to say that a contract was intended on the basis of the testimony that is before me, and particularly as to what transpired prior to June 5, 1946, it would be difficult to reach a satisfactory conclusion. The parties undoubtedly had a conversation on the subject prior to April 3, 1946, and at that time Mason was 'sold' on the proposals suggested by Rose. And, as Mason said in a letter to Rose, he desired that a draft memorandum be drawn up. Mason again requested a draft memorandum in the middle of April, and sometime between mid-April and May 20, 1946, certain sketchy proposals were drawn up by a lawyer named Davis, and who was closely associated with the British Paramount Companies, and these were submitted to Mason by Rose. For the rest, the testimony is in hopeless conflict.

 Plaintiff says that Rose first broached the idea of an independent company; Rose claims it was Mason. Mason asserts that the proposition was first discussed at a meeting toward the end of March, 1946, and that there were no extended discussions between that time and the meeting that was held at Mason's home on June 5th, when the document in suit came into existence. Mason further avers that the proposals prepared after mid-April were handed to him while he was on a movie set at the Denham studios and that he had no opportunity to discuss them. Mason denied that any preliminary draft of the June 5th letter was presented to him.

 Rose, on the other hand, declares there was a conference at Mason's home before the end of March, at which time Mason suggested the entire scheme. Rose also testified that there were other lengthy discussions at plaintiff's home, one in mid-April, one in mid-May, and one at the end of May. According to him, the details of the proposed corporation, including the method of financing it were discussed thoroughly and specifically. He further declared that the written proposals were submitted at the mid-May discussion, and that a draft of the June 5th letter, which was not produced on the trial, was discussed for about four hours at the meeting held in the latter part of May.

 Davis, the English solicitor, who testified for the defendant, was admittedly present at the end of March meeting, and at the one held on June 5th. Rose says that Davis was also present at the mid-May discussion, but the latter declared, on direct examination, that he was ...

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