Marvin Farkas t/a Farkas Studio v. Om Shoppe Ltd

DCCJ002134/1971

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 2134 OF 1971

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Coram: D. Cons, D.J. in Court.

Date of Judgment: 1 November 1971

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JUDGMENT

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1. In March of last year a contract was entered into between the plaintiff, who operates a photographic business, and the defendant company, a shop selling at that time both ladies' and gentlemen's clothing. It now deals only in the latter.

2. The contract was confirmed in a letter by the plaintiff of the 17th of that month (Exhibit 1). It provided basically for the making of a 30-second colour advertising film, the Defendant to provide the sound track. The cost was to be $4,500.00, a price which included no profit for the plaintiff by reason of his long standing friendship with Mr. Moni Narain, a director of the defendant company. The length of time necessary to complete the film was expressed as four to six weeks from the commencement of shooting.

3. The shooting was delayed for reasons not really the fault of either party, but even allowing for this the plaintiff did not complete his work within six weeks and it was not until nearly the middle of June that the film was actually delivered. Before this Mr. Narain, his wife, who was at that time still his fiancee, and a person to whom he has referred as his "partner" had on one or two occasions seen what I would call "rough proofs" of the film. In general they appeared to have been pleased with it except for one sequence, a sequence that occurred at the very end and consisted of a small boy poking out his tongue. Mr. Narain and his wife said that they suggested to Mr. Moyer, the plaintiff's assistant, that this sequence be removed and replaced by a simple presentation of the actual name of Mr. Narain's shop. I should perhaps here interpose that the whole of the film had been designed and produced by Mr. Moyer, who is acknowledged by all concerned to be a brilliant and creative artist. Like many such he was not at first disposed to accept criticism, but finally and reluctantly agreed to accept the changes suggested.

4. The plaintiff's version of this matter is somewhat different. He was not present at all the times that Mr. Narain and the others saw the proofs, but he did see them once himself and of his own accord suggested that the film would be improved by the addition of some form of titling, only to be met with the retort from his assistant that this matter had been discussed and that they had already decided otherwise. The plaintiff says that Mr. Narain and his wife were present at the time that he made his comments, although neither of these can now remember that.

5. It is unfortunate for the plaintiff that Mr. Moyer is no longer in the Colony to be called as a witness but I do not have the impression that Mr. Narian and his wife have deliberately lied to me. It may well be that the plaintiff's conversation with Mr. Moyer took place before Mr. Moyer had been finally persuaded to accept the change. I am satisfied on the evidence that he was eventually so persuaded. Unhappily he did keep his word and the final version delivered to Mr. Narain's shop after Mr. Moyer had left the Colony still contained the boy and his tongue and did not include the name of the shop.

6. By this time Mr. Narain and his wife had also left the Colony for a business holiday. During their absence the "partner" was looking after the shop. For some reason undisclosed he did not inspect the film on its arrival but left it untouched until Mr. Narain's return at the end of July. An invoice had also been delivered at or about the same time as the film and a further reminder that payment of the balance of the purchase price had not been made was sent on the 22nd of July. After their return at the end of July, Mrs. Narain viewed the film together with "their advertising man" and found the offending part still present together with a defect in the synchronisation of the sound track. About the end of August, Mr. Narain attempted to contact the plaintiff by telephone but found him out of town.

7. Mr. Narain made no further attempt at complaint until by chance in the early part of September - he puts it about the 10th to the 15th - he met the plaintiff in Duddell Street as the plaintiff was parking his motor-vehicle. In the discussion that ensued Mr. Narain persuaded the plaintiff to agree to make the changes in the film which Mr. Moyer had earlier promised but failed to carry out. The film was accordingly handed back. The changes were expected to take about two weeks, but before this time had expired, namely on the 21st of September, Mr. Narain wrote to the plaintiff (Exhibit 4) purporting to rescind the contract on the grounds of the long delay. He demanded the return of the $2,500.00 he had paid in March.

8. The plaintiff replied on the 29th of September (Exhibit 3). He did not accept the rescission, reiterating instead his promise to make good the changes and to deliver the film the following week. But he, like Mr. Moyer, also failed to make the changes. He had second thoughts about his promise and let matters rest.

9. Nothing else apparently happened on either side until the 6th of July this year, when Mr. Narain's solicitor wrote again demanding the return of his deposit. The plaintiff's reply was the writ dated the 15th of that month.

10. These are the facts of this case. Before dealing with the law applicable to them let me say immediately that I am satisfied that time was not nor ever has been made of the essence of the original contract. The wording in the confirmatory letter is nothing more than an indication of the expected time necessary to complete the film; furthermore in evidence Mr. Narain said he would still have paid in full and the film been delivered within two weeks from the car parking conversation in September. This is confirmed by the implication in the second paragraph of his solicitor's letter this July.

11. Some of the difficulties in applying the law in this case are more apparent and real and stem to my mind from an attempt to treat the whole course of dealing between the parties as one simple contract. To my mind this is not so. There was first of all the contract in March. In purported performance of that contract the plaintiff delivered a film to the defendant. I say "purported performance" because I am satisfied, as I have said, that the film did not conform with what Mr. Moyer finally promised Mr. Narain. But the defendant took it and made no attempt to reject it until nearly three months later. This is more than was reasonably necessary for that purpose. He cannot rely upon his absence from the Colony as an excuse for his delay, for his "partner" remained with the shop throughout and was well aware of what had been agreed with regard to the film. Moreover Mr. Narain was himself in the Colony for the whole of August and despite the invoice and reminder that he found waiting for him made no material effort to voice his dissatisfaction. By his conduct he was therefore deemed to have accepted the film and was from then onwards limited to his remedy in damages; and subject also to his liability to pay the balance of the purchase price.

12. I should perhaps interpose, in deference to the arguments of Counsel, that to my mind the question of consideration for the promise of Mr. Moyer is misconceived. It is not a promise separate from or varying the original contract, but merely the alternation of one small part of the item agreed to be produced of which the specific details were left very much in the air in the first instance. However if it is a point validly taken I consider it to be well met by the law as suggested in Cheshire & Fifoot, Law of Contract, 7th Edit. page 496, passages which were adopted by Mr. Packwood as part of his argument before me. At the time of Mr. Moyer's acquiescence the contract was still in the executory stages.

13. It would be fair to say I think that a reasonable time for the rejection of the film would have expired at the latest by the end of August. Thereafter the contract was at an end subject to the two matters I have just mentioned. From this it follows that any purported recision of the contract after that date, for example by the letters of the 21st of September or the 6th of July, must be of no effect; there was no contract left to rescind.

14. Then, on or about the 8th of September, the parties, although at the time they probably did not think of it with legal precision, entered into a second contract whereby in consideration of the defendant's giving up his right to damages under the original contract the plaintiff agreed to make the appropriate changes in the film that by then had become the defendant's own property. The plaintiff has simply failed to carry out his part of this second contract and is of course liable to pay damages.

15. All that remains then is to assess the amount of these damages, which basically will be the cost of putting the film right. But first I must consider the suggestions that even a corrected film has become worthless to Mr. Narain. Firstly he says that the background music is no longer suitable; this I am prepared to accept, for fashions in pop music do change rapidly. But it was his duty to provide the music under the original contract and he should have no difficulty in making another tape with music suitable for whatever period at which he might wish to exhibit the film. Nor should there be must extra cost in substituting a new sound tract at the same time as the offending boy is removed and the shop name inserted.

16. Secondly he says that the fashion shots included in the film were of summer lines incorporating fabrics and prints which are now no longer fashionable. Again I would agree, for although styles themselves change more slowly, particular fabrics and prints can die within the space of a year. But the point is of no importance. Mr. Narain admitted, when referring to this aspect, that the fashion shots in the film were quick; I find them non-existent. I have not seen the film projected, but I have been through it carefully on its spool and observed the various sequences that it contains. It is not of the old fashioned style of advertising whereby actual samples of the merchandise for sale are displayed; it is of the modern style which attempts to catch and hold the attention of the viewer by dramatic shots perhaps only remotely, if at all, connected with the merchandise in question and then effect the advertising by means of the sound track or some form of notice at the end. The main part of this film consists of faces, flowers and sunsets. There are short instances where clothes are apparent - perhaps for the longest period when a couple dressed in long plain yellow shirts are shown holding hands and then kissing - but in each case the clothes are to my mind only incidental to the person wearing them and were neither intended a convey, nor do convey, the impression that these particular clothes would be on sale in the Om Shoppe. This type of commercial film may and probably will give way to some other form a few years from now, but for the time being it seems to me that the defendant's film is equally as valuable to him now as it would have been last September. He is entitled to sufficient damages to cover the cost of the changes agreed, which I accept from the plaintiff to be at this moment $600.00. For the preparation and substitution of another sound track I add a further $100.00.

17. For these reasons I enter judgment for the plaintiff on his claim in the sum of $2,000.00 with costs accordingly and the judgment for the defendant on his counterclaim in the sum of $700.00 with costs accordingly.

1 NOV 1971

Representation: