On appeal from a judgment of the District Court of the Second Judicial District of the County of Bergen.
For the appellant, Milton M. Unger.
For the respondent, James A. Breslin.
Before Justices Case and Heher.
The opinion of the court was delivered by
HEHER, J. On December 14th, 1936, plaintiff's assignor, Affiliated Enterprises, Inc., and the defendant corporation entered into an agreement in writing whereby the first-named corporation, "the owner of the copyrighted and trade-marked name 'Bank Night' and of certain copyrights and patent pending of certain cards, posters, register and record books, film trailers and other accessories which may be used in staging the weekly feature known as 'Bank Night,'" granted to defendant, the operator of a motion picture theatre situate in the Borough of Ramsey, "a limited license to use Bank Night under the respective trade name, copyrights and patent pending above mentioned, * * * in connection with the operation" of the theatre, including "the right to use said name and all the above mentioned cards, posters, register and record books, film trailers and other accessories * * * as shall be furnished" to it by the grantor, in accordance with the "Bank Night Instructions" incorporated therein, for the term of fifty-two weeks commencing on December 28th, 1936, and ending on December 27th, 1937, the "rights" therein granted "to be used or exercised only on Monday of each week of the aforesaid term," and defendant undertook to pay to the grantor, "as license fees" therefor, "$7.50 per day during the life" of the agreement.
It was further therein provided that, "at any time after the expiration of the first twelve (12) weeks of the term of this license," the agreement "may be terminated by either party by giving to the other party thirty (30) days written notice of its intention so to do;" that "upon the termination" of the agreement "by expiration or otherwise, Licensee will
not exercise thereafter any of the rights" therein "granted, and will not use said Bank Night nor any modification thereof, nor any of the articles or accessories delivered to it pursuant" thereto, "nor said name 'Bank Night,' nor any similar name, articles or accessories, nor any feature any part of which may be similar to Bank Night as the same shall be used by Licensee pursuant to the terms" thereof; and that "no modification of" the agreement "shall be valid unless same shall be in writing and accepted by the parties" thereto "by the respective endorsements thereon."
Declaring that the "said agreement" was, "at the expiration" thereof, "continued by mutual consent of the parties thereto, under all the terms thereof," and that "the defendant continued to use the rights and privileges thereof, and * * * accepted the provisions of said agreement and the materials and other property therein referred to," and "the benefits thereof," for the period of fifty-seven weeks "from January 3d, 1937, to August 22d, 1938, excepting between January 17th, 1938, and February 21st, 1938," plaintiff brought this action to recover the debt thus claimed to arise under the pleaded contract -- i.e., $427.50, "the charge per diem for the use of the license and paraphernalia from January 3d, 1937, to August 22d, 1938;" and the District Court judge, sitting without a jury, granted defendant's motion "for a directed verdict" in its favor on the grounds (a) that the "alleged modification of the original contract was not in writing as provided by the terms of clause 14" thereof; (b) "there was no legal proof of the facts and character of the alleged subsequent agreement;" (c) there was "no evidence that the officers of the defendant corporation had authority to bind the corporation by a subsequent oral agreement," and (d) "there was no legal evidence presented by the plaintiff to establish the indebtedness since there was no proof as to exactly when the defendant operated the 'Bank Night,' as alleged in the state of demand." The validity of the contract was not in question; nor is it challenged here.
In our view, the judicial action thus taken is not well-grounded.
The enforceability of the alleged second agreement does not turn upon its parol form. It was but the enlargement of the duration of the contract -- extra its provisions -- and not a "modification" of the contract itself within the intendment of paragraph 14 thereof. In common understanding, there is an essential difference between the two. The parties manifestly had in mind an alteration, change, or variation of the contract itself, and not a mere extension of ...