(after stating the facts as above). The suit is brought, in effect, to restrain defendant (1) from playing, producing, or controlling in any manner the dramatic composition “Peg O’ My Heart,” and (2) from manufacturing or presenting any motion picture based upon “Peg O’ My Heart.” The case requires only the construction of the two contracts; testimony in respect of customs and conversations antecedent to the contracts having been excluded.
[1] 1. Plaintiff urges that the first contract amounts only to a license, revocable at his option, except as to the interest of defendant for the period referred to in paragraph “Third” of the first contract, and that time, according, to plaintiff, expired in June, 1918; a “theatrical season” concededly meaning from October to June.
' Applying fundamental principles to the construction of this contract, it is entirely clear that the parties intended that defendant should have all the rights mentioned for all time and that paragraph “Third” (particularly when illuminated by paragraph “Fifth”), as aptly put by counsel for defendant, is a statement of the least that defendant is to do, not of the most he is to have. Had the parties otherwise intended, they could readily have fixed a time limit in paragraph “First” by the addition of words such as “for-years from” or “until” a stated date. The provision in paragraph “Eleventh” merely expressed, inter alia, the natural precaution of the playwright in preventing the disposition of the play to persons or corporations who might be distasteful or otherwise not satisfactory to the playwright. Whatever may be said as to paragraphs “Eleventh” and “Sixth,” and the addendum, is now academic, in view of paragraphs “Third,” “Fourth,” and “Eleventh” of the second contract.
Indeed, the first contract in this respect was an entirely normal arrangement, which contemplated full right to defendant to produce the play as long as he deemed proper, provided that he would, in any event, give the play a fair trial and the opportunity for success which the minimum of 75 performances during the theatrical seasons covered by paragraph “Third” would develop.
[2] 2. I how come to what is the real controversy between the parties, viz. the motion picture rights. On this branch of the case, the question, simply stated, is whether the case at bar falls under Froh-*741man v. Fitch, 164 App. Div. 231, 149 N. Y. Supp. 633, or Klein v. Beach (D. C.) 232 Fed. 240, and 239 Fed. 109, 151 C. C. A. 282. In the former case the contract recited: “Whereas,” Frohmán “desires the exclusive right to produce or to have produced the said play,” and provided that Fitch “does sell” to Frohrnan “the exclusive right to produce the said play.” In the case at bar, the contract recites: “Whereas,” Morosco “wishes to obtain the exclusive right and license to produce, perform, and represent the said play,” and provides that Manners “does grant” to Morosco “the sole and exclusive license and liberty to produce, perform, and represent said play.”
It will thus be noted that the word “produce” occurs in both contracts; i. e., in Frohman-Pitch and in Manners-Morosco. When used alone, that word has a definite meaning, by virtue of Kalem Co. v. Harper, 222 U. S. 55, 32 Sup. Ct. 20, 56 L. Ed. 92, Ann. Cas. 1913A, 1285, and Frohman v. Fitch, supra, as was pointed out by Judge 1,ear-ned Hand in Klein v. Beach, supra. In other words, “produce” includes the presentation in or by way of motion pictures. The scope of the word, as thus judicially defined, can be narrowed only by some other language, employed by contracting parties to express a different intent. Thus it was that the question in Klein v. Beach, supra, was whether the additional words “for presentation on the stage” and “on the stage,” construed with their context, meant the spoken play.
Of course, it is often possible to find in the opinions of courts some sentence or phrase which, if isolated from its context, may convey a meaning' different from what the writer intended. Opinions, however, must be read as a whole, and illustrative observations must be understood as applying only to the question and facts under consideration. Thus read, it will be found that the opinion of each court in Klein v. Beach, supra, simply held that: the particular contract there considered contemplated the spoken play only.
In the case at bar, however, the decision need not rest solely upon particular words found in particular paragraphs. The whole structure of the contract demonstrates plainly the strength of defendant’s position.
When the first contract was executed, motion pictures, as the parties agree and as the testimony shows, were well known. It is not controverted in this case that a motion picture of “Peg O’ My Heart” would seriously damage, from a financial standpoint, the production of the spoken play. It is difficult to suppose that Morosco, as a producing manager, would risk the money necessary to produce the play at least 75 times each year for several years and leave the motion picture rights outstanding in Manners. In such a situation Manners might, at any time, for some reason satisfactory to himself, sell the motion picture rights and destroy the financial value of the spoken play. Indeed, the second contract discloses that controversies arose between the parties.
It might very well have happened that the play, instead of turning out a great success, might have had a run of short duration, with consequent lean royalties. Yet the production might have been salable for motion pictures at a price in excess of any royalties which failure as a *742spoken play would indicate. In such circumstances, Manners could not lose. He would have, for himself, the proceeds resulting from his ownership of the motion picture rights, while Morosco would be compelled to pay him the stipulated per cent, of gross (not net) receipts derived from the compulsory performances required by paragraph “Third,”, and contemporaneously the financial results to Morosco might be gravely affected by the contemporaneous motion picture. In other words, Manners could not lose and Morosco was sure to lose, and practically the same result would follow if the play were released for stock. Courts are not astute to construe contracts with such a result, unless the language and intent clearly so require.
Per contra, if Morosco, by the contract, gained the motion picture rights, it is hardly conceivable that, while the spoken play was a success, he would destroy its financial future and possibilities by producing motion pictures contemporaneously, and thus destructively compete with himself.
Finally, that it was not intended to limit the scope of the production to any field of presentation is well evidenced by paragraph “Tenth” of the first contract. The express exclusion of the right to print and publish the play is clearly expressive of the intent to include all rights except those specifically excluded or reserved. The suggestion that paragraph “Seventh” has any bearing upon the question of motion picture rights is not persuasive, in view of the Kalem and Frohman v. Fitch Cases.
The bill is dismissed, with costs.