Los Angeles herald., 1905-01-20
MOROSCO FIRST
WINNER IN SUIT
JUDGE WORKS REFUSES TO
GRANT INJUNCTION
Belasoo Management Must Seek Re-
dress In Action for Breach Of
Contract, Says the
Court
Court

lasco and Burbank theaters, who have
been at loggerheads for several months
past, we're temporarily soothed yester-
Gay when Judge Pro TEN. Louis r.
Works handed down decision in the
superior court in which he denied the
injunction asked for by Belasco &
Mayer. proprietors Of the Florence
Roberts company, preventing any other
play appearing at the Burbank thea
day next.
While the decision Of Judge Works
was temporary victory for the Mo-
roscoites. nevertheless there may be
diseerned in the carefully drawn docu-
ment a soothing balm for the Belasco-
ties, for in his decision Judge Works
says:
Certain sections of the code of civil
procedure were cited at the argument
by counsel for the defendant in con-
travention of plaintiffs right to an in
junction, but their effect need not be
discussed. Irrespective Of the ques-
ton of their bearing upon the case no
ground for injunctive relief is shown
by the complaint and the amendment
thereto.
1.-THE application for preliminary in
junction is denied, but as the COM
plant seems to state cause of action
for nominal damages for the breach
Of the affirmative covenant of the
agreement, under section 1850 of the
civil code the demurrer is denied"
Sought Injunction
The action commenced by the Belas-
junction proceeding to restrain Oliver
Morosco from violating two distinct
contracts.
In the contract entered into between
Morosco and Frederick Belasco the
first named agreed to play at the Bur-
bank theater during a period of three
weeks commencing Sunday, January
25, certain company of players to be
furnished by Frederick Belasco and
known as the Florence Roberts COM
pany.
In the contract signed with Belasco
company known as White Whittlesey
and company for period of two weeks
in the following month.
Cancelled Contracts
The Belasco people asserted that De-
cember 80 last Morosco in a written
communication to them cancelled the
contracts, and the action was COM
menced for the purpose of enforcing
the negative provisions contained in
the contracts, which strictly prohibit
any other performance at the Burbank
theater during the time covered by
the contracts.
Judge Works in his decision says:
This action is brought, not to en-
force the performance of the contract
to furnish the theater for the use of
the Roberts company for that portion
of the agreement is not specifically
enforceable under the rules of equity
Jurisprudence, but to enjoin a breach
of a certain clause of the contract; in
other words, to enjoin the defendant
during the three weeks covered by the
contract from presenting theatrical
performances in his theater by any
combination other than the Florence
Roberts and company.
Negative Covenant
"It is alleged in the complaint that
plaintiff has not performed and cannot,
because of the conduct of defendant,
perform his part of the contract. The
IufV, L, fo,
the enforcement of the affirmative pro-
visions of the agreement. His only
relief, unless he be remitted to his
remedy at law, is in enjoining the
breach of the negative covenant.
"It becomes material to inquire what
will be the results to the parties if
the injunction should be allowed.
Through the granting of that remedy
the plaintiff will derive no benefit
whatever, in so far as the subject mat
ter of the contract itself is concerned.
1t will not result in Florence Roberts
and company being permitted to use
the theater, nor will it result in a
recoupment to the plaintiff of any OF
the losses he may sustain by reason
of defendants refusal to allow such
use. The sole benefit Of the injunction
to plaintiff, aside from it's soothing
effect as a punishment of defendant,
would be through the increase of the
box receipts of the Belasco theater and
the resulting pecuniary benefit to him
as one of the five lessees of that play
house.
Stop Defendants Business
"In short, on the one hand the in
junction would IL granted cause an
increase, problematical as to amount
in the receipts of the Belasco theater
an increase only fractional part OF
which. il any at all under the allega-
tions of the complaint. would be paya-
BILE to the plaintiff. On the other hand
the entire business Of defendants thea.
ter, I'm which he alone appears TO be
Interested, Will be stopped for three
weeks" +.
Attorney Frank G. Finlayson, in be.
half of the BelascO theater manage
"a