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Touhy v. Twentieth Century-fox Film Corp.

OPINION FILED MARCH 5, 1979.

ROGER TOUHY, INDIV. AND AS ADM'R OF THE ESTATE OF ROGER TOUHY, DECEASED, PLAINTIFF-APPELLANT,

v.

TWENTIETH CENTURY-FOX FILM CORPORATION ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. DANIEL P. COMAN, Judge, presiding.

MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Plaintiff, Roger Touhy, individually and as administrator of the estate of Roger Touhy, deceased, brought an action against Twentieth Century-Fox Film Corporation and Balaban & Katz Corporation, for breach of contract based on a 1949 release and covenant not to sue executed by the late Roger Touhy. The trial court granted defendants' motion to strike and dismiss plaintiff's complaint and entered judgment for defendants. Plaintiff appeals from this order only with reference to Twentieth Century-Fox Film Corporation (defendant).

The issues presented on appeal are: (1) whether the 1949 release contains a covenant or promise on the part of defendant that it will not sell or distribute the film "Roger Touhy, Gangster" in the continental United States; (2) whether defendant is bound by a release that it did not sign; (3) whether this action is barred by the Statute of Frauds; and (4) whether this action is barred by res judicata or collateral estoppel.

In 1944, plaintiff's father (also named Roger Touhy) filed an action in the United States District Court entitled Roger Touhy v. Twentieth Century-Fox Film Corporation, N.D. Ill. No. 44C 942. Touhy alleged that he was defamed by the film "Roger Touhy, Gangster." That case was settled by payment of $15,000 to plaintiff's father by the defendant and co-defendant, and the execution by plaintiff's father of a release which provided:

"TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN

GREETING: KNOW YE, THAT I, ROGER TOUHY, being over the age of 21 years, for and in consideration of the sum of fifteen Thousand Dollars, lawful money of the United States of America, and other good and valuable considerations, to me in hand paid by TWENTIETH CENTURY-FOX FILM CORPORATION, a corporation, and BALABAN & KATZ CORPORATION, a corporation, receipt whereof is hereby acknowledged, have remised, released and forever discharged, and by these presents do for myself, my heirs, executors, administrators and assigns, remise, release and forever discharge the said TWENTIETH CENTURY-FOX FILM CORPORATION, its distributees, licensees and exhibitors throughout the world, and BALABAN & KATZ CORPORATION, a corporation, their respective heirs, executors, administrators, successors and assigns, of all and from all, and all manner of action and actions, cause and causes of actions, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversy, agreements, promises, variances, trespasse damage, judgments, extents, executions, claims and demands, whatsoever, in law or in equity, which against TWENTIETH CENTURY-FOX FILM CORPORATION, a corporation, its distributees, licensees and exhibitors, throughout the world and BALABAN & KATZ CORPORATION, a corporation, I ever had, now have or which I and my heirs, executors, administrators and assigns, and any thereof, hereafter can, shall, or may have for, upon or by reason of any matter, cause or thing whatsoever from the beginning of the world to the day of the date of these presents. This release includes, without limitation on the generality of the foregoing, all claims, demands, actions and suits of every kind and nature which I have had in the past or which I or my heirs, executors, administrators or assigns shall, can or may have up to this date, arising, directly or indirectly, out of the production, distribution, exploitation and exhibition of the motion picture Roger Touhy, Gangster, produced by Twentieth Century-Fox Film Corporation, or any matters and things arising out of the distribution and exhibition of said picture as provided in the next paragraph hereof.

And for the consideration aforesaid I do hereby for myself, my heirs, executors, administrators and assigns, covenant and agree that I will not, nor shall my heirs, executors or administrators at any time hereafter, institute, prosecute or maintain any action at law or suit in equity against Twentieth Century-Fox Film Corporation, its distributees, licensees and exhibitors throughout the world arising out of the normal distribution worldwide of existing prints of said picture and the exhibition thereof outside the territorial limits of continental United States of America, pursuant to existing commitments, and I do hereby for myself, my heirs, executors, administrators and assigns further covenant and agree that this agreement may be pleaded in bar in any action, suit or other proceeding which may be instituted by me, or my heirs, executors, administrators or assigns contrary to the provisions hereof.

And I do hereby stipulate and agree that so much of the complaint filed by me in the District Court of the United States, for the Northern District of Illinois, Eastern Division, entitled `Roger Touhy, Plaintiff, v. Twentieth Century-Fox Film Corporation, a corporation and Balaban & Katz Corporation, a corporation, Defendants, Case No. 44 C 942' as may be pending, may be dismissed without costs.

IN WITNESS WHEREOF, I have hereunto set my hand and seal this 24 day of October, 1949.

(Signed) Roger Touhy (SEAL)

(Acknowledgment)"

On November 1, 1949, the district court entered its order which disposed of that case in this language:

"IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the court that the amended complaint herein be, and the same is hereby dismissed without costs, the matter thereof having been fully released and discharged."

Plaintiff's father, Roger Touhy, died in 1959. In July of 1974, plaintiff filed suit in the United States District Court for the Northern District of Illinois against Columbia Broadcasting System. He alleged that under the provisions of the settlement agreement of 1949, Twentieth Century-Fox (defendant) had agreed that the film was never to be shown but was to be destroyed. Plaintiff prayed injunctional and other relief. In those proceedings, plaintiff made it clear that he was suing Columbia Broadcasting System as a distributee or licensee of Twentieth Century-Fox (defendant here) and that he sought to enforce the release as an affirmative contractual obligation of said defendant and hence derivatively of CBS. The district court denied the plaintiff's motion for an injunction on the ground that plaintiff had failed to demonstrate any irreparable injury which would overcome the right of CBS to freedom of expression under the first amendment. The court then also ...


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