The Court will therefore award plaintiff $ 1,000 as damages for loss of anticipated profits. To be sure, this figure is somewhat arbitrary, but a degree of arbitrariness and speculativeness is unavoidable in estimating damages of this kind.
The Court will also award plaintiff $ 300 for damage to its reputation as a result of defendants' breach. Plaintiff established by a fair preponderance of the evidence that its reputation and good will were damaged to a small extent -- particularly in the eyes of one purchaser who had purchased about 250 Showtime Books as Christmas gifts for his employees. In fact, a number of witnesses (offered by plaintiff) who had attempted to use the Showtime Book coupons at the Trans-Lux Theatres and had been turned away at the box offices vented their anger more at defendants than at plaintiff. Thus the reputation of defendants may well have been damaged by their own breach. In any event, plaintiff's reputation was not substantially damaged.
Plaintiff has failed to prove by a fair preponderance of the evidence that any of its other operations, including its 'Global Menu Club' book (which is similar to the Showtime Book except that it applies to restaurants), were damaged by defendants' breach of the Showtime contract.
3. The court will vacate the preliminary injunction heretofore entered.
On the Trans-Lux coupons in the Showtime Book there is printed the following language: 'Void advance priced engagements.' Defendants claim the right, under this language, to advance the price for certain pictures and on certain days of the week from the 'regular' price of.$ 1,65 or $ 1.80 to the special price of $ 2. Plaintiffs claim raising the prices in this manner violates the court injunction ordering defendants to honor the coupons when presented. In view of the serious dispute about the proper interpretation of this phrase, and the continuing difficulties which would face any court in attempting to decide which motion pictures are and which are not properly subject to an advance in prices, this Court has concluded that it is best to terminate the injunction. The Court will also, however, award plaintiff an amount to cover anticipated losses occasioned by refunds which plaintiff feels obliged to make to purchasers turned away at the Trans-Lux Theatres. Plaintiff's president testified that to the date of trial, refunds have been made for approximately 20 or 30 Showtime Books at the full purchase price of $ 15. The coupons for the Trans-Lux Theatres expire on October 31, 1964, and the Court will award damages of $ 375 to cover anticipated refunds from the date of trial to the date of expiration.
In any event, there may not be substantial need to make such refunds, since defendants may well have realized that the reputation of Trans-Lux suffers whenever one of the theatres refuses to honor a coupon.
The Court, in any event, will limit plaintiff to recovery of money damages.
4. Since the Court has determined that Rosenfeld had apparent authority to enter the agreement with plaintiff in behalf of defendants, the counterclaim of defendants, claiming out-of-pocket losses for the coupons which have been honored at the box offices, must fail.
5. Similarly, the third-party complaint by defendants against Rosenfeld must fail. As the Court has previously determined, Rosenfeld had apparent authority. He acted reasonably, in complete good faith, and not for his own benefit but rather for the benefit of his principal. Defendants (third-party plaintiffs) have failed to prove to the satisfaction of the Court by a fair preponderance of the evidence that Rosenfeld acted contrary to the best interests of his principal, or that he breached his duty to his principal.
Judgment will therefore be entered for plaintiff against defendants in the amount of $ 1,675 on the claim. The counterclaim and third-party claim filed by defendants will be dismissed. And the injunction heretofore entered will be vacated.