The opinion of the court was delivered by: DUFFY
KEVIN THOMAS DUFFY, District Judge.
This is a contract action which was instituted some six years ago. By my decision of September 11, 1974, the disputed issues of liability and damages were bifurcated and a non-jury trial was held on the question of liability only on September 23, 1974. I have reviewed the various depositions submitted at that trial along with all of the exhibits. The question to be decided is a very narrow one.
The facts are fairly simple. The defendant is a "subsidiary" of the National Football League (hereinafter "the N.F.L.") in that the N.F.L. owners own the defendant corporation N.F.L. Films, Inc. (hereinafter "N.F.L.F."). N.F.L.F. was apparently set up to take and/or distribute motion pictures of the N.F.L. football games for promotional and other purposes.
In the early summer of 1966, the president of the plaintiff corporation, Addison Terry, a self-styled consulting economist to the communications industry, contacted Edwin Sobol, the president of N.F.L.F. At the time the plaintiff corporation was selling a T.V. promotional game show which was called "Red Horse Derby" and Terry explained to Sobol that a similar format could be used with film clips from N.F.L. games. Sobol expressed an interest in the idea and thereafter on August 2, 1966, Terry presented to the defendant a contract prepared by the plaintiff's lawyer. The contract basically provided that the defendant would supply plaintiff with film clips of N.F.L. games and receive a royalty on the use of the promotional game by advertisers. No time limitations were included in the contract. During the prior negotiations, it appears that Terry had discussed using the football game clips during the 1966-1967 football season. Nothing was said about future football seasons.
After reviewing the contract advanced by Terry, Sobol with his staff proposed an "Addendum" to the contract which was agreed to by plaintiff and both the contract and the "Addendum" were signed at the same time and must be considered as one document. The contract provided:
"(a) That N.F.L.F. shall prepare and supply to A.T.C. [plaintiff] one hundred thirty (130) clips of motion picture film of National League Football Games . . . ."
"(e) All of such film clips must be supplied to A.T.C. within sixty (60) days from the date of this contract [i.e. by October 1, 1966], with the first package of sixty-five (65) clips to be supplied within thirty (30) days from the date hereof [i.e. September 1, 1966]."
Under the addendum the defendant agreed to supply one film clip immediately [and admittedly that was done] but the plaintiff agreed that
"A.T.C.I. will notify N.F.L.F. by the twenty-second of August of its requirements for sixty-four additional clips to be employed in Football Derby. With this notification, A.T.C.I. will make an additional deposit of $2500."
Admittedly, no notification was given by plaintiff to defendant on August 22, 1966. Nor was payment of the $2500 ever tendered.
One other contract provision must be noted:
"8. That any default by A.T.C.I. hereunder, if not cured within thirty (30) days after written notice of default from N.F.L.F., shall be sufficient cause for N.F.L.F. at its option to termination to A.T.C.I.: * * *"
The defendant did not supply any other film clips to the plaintiff but on March 13, 1967, long after the 1966-1967 football season had ended, Sobol on behalf of ...