Defendant exhibitor challenged a judgment of the Superior Court of Fresno County (California) which found for plaintiff distributor after a trial in the distributor’s action for breach of a contract. The distributor had agreed to produce and deliver six films and the exhibitor had agreed to exhibit each of them in turn for a period of one week each.
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An exhibitor and a distributor entered a contract providing that the distributor would produce and deliver six films to the exhibitor. The exhibitor accepted and exhibited the first two films, but refused to exhibit the third and fourth and notified the distributor that it would not accept the remaining two films. The distributor won a breach of contract action against the exhibitor after a trial. The exhibitor appealed and the court reversed the judgment and remanded for findings of fact. The distributor was entitled to recover for the third and fourth films, but not for the fifth and sixth. The exhibitor, having partly performed the contract and accepted some of its benefits, could not rely on a claim that the contract was improperly executed. The exhibitor had the burden of proof to prove facts in mitigation of damages and did not meet that burden. As to the fifth and sixth films, however, the action was premature. The distributor’s pleadings and proof could not sustain a damage award for anticipatory breach under Cal. Civ. Code § 3300 because there was no evidence of its performance or readiness to perform. Want of mutuality was not a defense to an executed contract.
The court reversed the judgment for a distributor in its action against an exhibitor for breach of a contract for the exhibition of six of the distributor’s films because the action was premature as to the fifth and sixth films.