dates were held up or held back for weeks attain Co., 240 Mass. 531, at page 535, 134 N. a time; that they had other contracts for a second run of these pictures they had to protect in respect to making sales." E. 384, 385, which related to a contract for advertising by the defendant in the plaintiff's magazine, the rule respecting damages Strictly the contract is neither for a sale above referred to is stated as follows: nor for a lease; it contemplates a license "If the contract space was limited, and the and a bailment. Orbach v. Paramount Pic-plaintiff could get other advertisements which tures Corp., 233 Mass. 281, 284, 123 N. E. 669; it could not have accepted except for the Miller v. Miloslowsky, 153 Iowa, 135, 137, 133 breach of the contract, the damages suffered N. W. 357. The usual rules of damages for must be less than the contract price." breach of contracts have been applied to ac tions by exhibitors for nondelivery of films. Mt. Pleasant Stable Co. v. Steinberg, 238 Orbach v. Paramount Pictures Corp., supra; Mass. 567, 131 N. E. 295, 15 A. L. R. 749, preBroadway Photoplay Co. V. World Film sents a different application of the same Corp., 225 N. Y. 104, 121 N. E. 756; Vita- rule; the plaintiff was allowed to recover the graph-Lubin-Selig-Essanay V. Billings, 87 contract price less what it would have cost Okl. 192, 209 Pac. 773. There seems to be no him to perform. In the present case, the reason why such rules should not apply to cost of performance to the plaintiff was the present case. It was said in Hethering- whatever the value of the first run rights ton & Sons v. William Firth Co., 210 Mass that he was required to give the defendant 8, at page 21, 95 N. E. 961, that the plain-under the contract was found to be upon the tiff is entitled to payment of such a sum as evidence. Under the rule stated in Mt. would place him in The contract in the present case is dif. ferent from a sale. There, if the transaction Pleasant Stable Co. v. Steinberg, supra, the plaintiff might resell those rights to others if it could do so, upon such terms as to make a profit. It did in fact resell some of the films at an advance, but the defendant is not entitled to the benefit of that advance except to show the price obtained, as evidence that the value of the rights to the particular films so sold was equal to the contract price; and, also, to show that the plaintiff suffered no damage in respect to those films. The de fendant is not entitled to have the sum re is consummated, the seller parts with all his ceived in excess of the contract price apinterest in the property. It is not like a plied in reduction of damages sustained by lease of land, for in that case the lessor will the plaintiff by reason of other films not reeventually get back all he parts with. Here sold, or of those which were resold for an the distributor does not part with all, for it amount less than the contract price, in the has a right to the film upon termination of absence of any evidence of the value of the the contract in accordance with its terms, films so released. According to this rule of and also the right to dispose of it thereafter damages, the defendant was entitled to show for subsequent exhibitions. But if the con- that the pictures which it declined to take tract is consummated the distributor loses had a value in the plaintiff's hands which the possibility of making first run contracts, the plaintiff could have realized or did realwhich in the nature of things cannot twice ize by a resale of the first run rights. The be carried out in the same district. The plaintiff, on the other hand, was entitled to plaintiff, after repudiation by the defendant, show that the possibility of reselling those was free to sell the first run rights to rights was of no or little value to it, either others; what those rights were worth should because there was no market for them, or behave been deducted from the contract price cause the only market which existed was in determining the damages actually result- one of which the plaintiff could not be exing from the breach. On the evidence it pected to take advantage. This latter situacould not properly have been assumed by the tion would occur if resales could be made court that those rights were worth nothing only in such manner as to interfere with its to the plaintiff. Their value was to be de- other contracts. It might occur in other termined upon the evidence. If any were ways. In the present case there were apsold after the contract was repudiated, the parently periods of time varying from one to prices obtained would be evidence of their six months between the date of the repudiavalue; if the plaintiff, after making diligent tion of the contracts and the respective reeffort to sell any of them, was unable to do lease dates of the various films; and the so, that would be evidence that they were jury could have found on the evidence that of no value, and would permit the recovery resales might have been made within that of the whole contract price. Haynes v. Nye, time without conflicting with any of the 185 Mass. 507, 509, 70 N. E. 932. In Drug-second run contracts which were testified to. gists Circular, Inc., v. American Soda Foun- Some resales were in fact made. On this (144 N.E.) state of facts the trial court's charge was er roneous. The rights which the defendant obtained would seem to be the right to exhibit the films. From an examination of the contract it does not appear that the defendant is obligated to exhibit the pictures delivered to it, nor to do any advertising. In the seventh clause it agrees not to use any advertising matter "except that which is purchased from or approved by the distributor," but there is no provision by which the defendant binds itself to do any advertising whatever. As it was under no obligation to exhibit or advertise the pictures, the plaintiff's offer of proof was rightly excluded. In view of this conclusion, it is unnecessary to consider the other objections argued by the defendant to the offer of proof. [8, 9] 6. It remains to consider the plaintiff's exceptions to the exclusion of an offer of proof made by it, and to its requests for rulings in connection therewith. The plaintiff in substance offered to prove that at the time of making the contracts it was understood between the parties that in fixing the prices for the first run theaters, such as the Park Theatre, it was a part of the consideration that the distributor received the benefit of exhibiting its pictures contracted for at such theaters, "and advertising in the Boston papers of such exhibition and the exhibition itself was recognized in the trade as enabling the distributor to sell its pictures for second and subsequent runs to more people in New England territory, and at better prices than otherwise it would have been able to do; that its failure to have its pictures so exhibited and advertised forced it to greater efforts and an increased expense to distribute its later releases to exhibitors in other points of New England"; and that such in. crease in expense is capable of fairly exact TAPPER et al. v. BOSTON CHAMBER OF calculation, and that the loss sustained was approximately $1,000 on each contract. Of course any agreements or understandings between the parties, except so far as they are expressly embodied in the contract or to be inferred therefrom, could not be considered. Unless by the terms of the contracts construed as a whole the defendant agreed to exhibit the films as well as to pay for them, and refused to do so as appears from the undisputed evidence, no question of damages by reason of failure to exhibit them arises. The contracts are to be construed in accordance with their terms and cannot be varied by oral agreements or undertakings entered into contemporaneously therewith. While probably it was the expectation of the parties at the time the contracts were entered into that the films should be exhibited, yet there is no promise or undertaking on the part of the defendant to do so. The second clause recites that: "The motion pictures so delivered are to be used solely by the Exhibitor for exhibition and for no other purpose. Order overruling demurrer affirmed. COMMERCE et al. (Supreme Judicial Court of Massachusetts. Suffolk. May 23, 1924.) 1. Exchanges 5(1)-Trustees of fund of Boston Chamber of Commerce held entitled to vote certificates. In view of St. 1909, c. 251, § 21, as added by St. 1914, c. 82, trustees of fund of Boston. Chamber of Commerce used in purchasing outstanding certificates have right to vote such certificates for what they deem to be general benefit of corporation in any manner, so long as they act honestly. 2. Constitutional law 12-Fifth amendment does not limit powers of state governments. Const. U. S. Amend. 5, was not intended to limit powers of state governments. 3. Constitutional law 296(1) - Exchanges 2-Statutes concerning purchase and voting of certificates of Boston Chamber of Commerce held not invalid, as deprivation of property contrary to law of land. St. 1909, c. 251, § 13, as amended by Sp. St. 1919, c. 196, § 1, and section 21, as added by St. 1914, c. 82, providing for formation of trust fund and purchase of certificates of membership in Boston Chamber of Commerce, and vote by trustees, are not invalid, as being repugnant to Const. U. S. Amend. 5, and Declaration of Rights Mass. art. 12, though latter stat This means that the defendant will not use them for any other purpose; but it does not agree that it will use them for that purpose. In other words, it is left wholly to the ex-ute was enacted without knowledge or consent hibitor's option whether it will use them at all. In the third clause the defendant agrees that: "Payment [is] to be made one week in advance for the right to exhibit during the succeeding week such motion pictures for the number of days herein provided." of members; statute not diminishing their vot 4. Exchanges 3-Legislature had right to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes members; rights of members being subordinate provides for the issuance of not more than to that right. 5. Corporations 38-Rule as to power of Legislature to amend charter stated. Legislature may amend or alter charter, unless it will defeat or impair object of grant, or vested rights under it, in view of G. L. c. 155, § 3. 6. Exchanges 10-Trustees of fund of Bos- Directors of Boston Chamber of Commerce have power to make charge to members who use trading facilities, referred to in section 7 of its charter (St. 1909, c. 251, § 7), in view of section 12. 2,000 individual certificates of membership, the certificates to be of the par value of $200 each, and bear interest at the rate of 4 per cent.; each member being entitled to hold but one certificate, except for temporary purposes. Section 12 provides for another class of members, other than those holding certificates, the number to be fixed by the by-laws. Members of both classes are to be liable for the same dues; but the noncertificate-holding members are to have no interest in the real estate or other property of the corporation, but are to have equal voting powers except in matters affecting the management of the property; they are entitled to all other rights and privileges of certificate-holding members except that they are not allowed the trading privileges and facilities of the corporation. Section 13, as amended by Sp. St. 1919, c. 196, § 1, provides as follows: "The new corporation by concurrent vote of a two-thirds majority of both certificate holding Report from Superior Court, Suffolk Coun- and other members present in person or by ty; Philip J. O'Connell, Judge. Bill by Albert K. Tapper and others, as holders of certificates of membership, against the Boston Chamber of Commerce, its President and Directors, other officers, and other members, to enjoin certain action at meeting. On report. Bill dismissed. H. H. Pratt, of Boston, for plaintiffs. R. G. Dodge and J. S. Stone, both of Boston, for defendants. CROSBY, J. This is a bill by five holders of certificates of membership in the defendant corporation, alleging that it is brought for themselves, and others similarly situated and entitled to join therein, against the defendant corporation, its president and directors, and certain other officers, the trustees of its trust fund, and certain individuals, members of the corporation other than certificate holders. It is alleged that the membership of the corporation consists of two classes, certificate-holding members and noncertificate-holding members; that its officers have called meetings of the members of each class at which certain action is to be taken and votes passed; that such acts and votes would be illegal and contrary to the interests of the plaintiffs. The prayers of the bill are that the defendants be enjoined and restrained from such action. The case is before this court upon a report from the superior court under G. L. c. 231, § 111, which contains the pleadings and an agreed statement of facts. 1. The defendant corporation and the Boston Merchants' Association were existing corporations in 1909. In that year they were authorized by St. 1909, c. 251, to unite as one corporation. Section 6 of this statute proxy and voting at separate meetings called for this specific purpose, notice of which meetings shall be mailed to each member not more than fifteen or less than ten days in advance, shall have the right, upon the payment of the sum of two hundred dollars and accrued interest to each certificate holder to cancel and retire all outstanding certificate holding memberships, upon such terms and conditions as shall be determined by said two-thirds majority vote. In the event of the exercise of such right of cancellation there shall be thenceforth' but one form of membership in said corporation, and each member, whether previously a certificate holding or other member, shall receive a certificate representing the same individual interest in all the property rights and privileges of the new corporation. By St. 1914, c. 82, a new section (21) was added to the charter (St. 1909, c. 251). This section provides in part that: The money "The board of directors of the new corporation shall have the power and is hereby authorized to establish from the available funds or property of the corporation a trust fund for the general benefit of the new corporation. This fund shall be administered by a board of three trustees elected by the board of directors as hereinafter provided. * used to purchase the outstanding certificates of or property appropriated for this fund shall be the new corporation, or, under the direction of the board of directors, may be invested in other ways. The trustees of the trust fund so created are empowered to receive gifts and bequests and to add the same to the fund. The income from the fund shall be paid annually or oftener shall be treated in the same way as money cominto the general treasury of the chamber, and ing from the payment of membership dues. The trustees of the said fund shall have the power to hold an unlimited number of the certificates of the corporation, and to vote the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (144 N.E.) same and to receive dividends or interest up- ["for the purpose of determining whether all on the same, any provision of this charter or outstanding certificates of membership shall of the general law to the contrary notwithstand-be canceled, and if so upon what terms and ing. The trustees shall have power under the conditions," were sent to the holders of cerdirection of the board of directors to change intificates of membership. At the same time similar notices of a special meeting on May were sent to members who were not certificate holders. vestments and to sell any property held by them in the trust fund, and to reinvest the proceeds, and to reissue the certificates of membership in 'the new corporation held by them, and to reinvest the proceeds thereof, and any purchaser of such certificates shall have the same rights, privileges and duties as if the said certificates were issued to him originally by the new corporation. In the event of liquidation, dissolution or distribution of the property of the new corporation, the trustees of the trust fund herein created shall receive their proportionate share of the sum or sums distributed among the certificate-holders, based on the number of certificates held by them." Section 21 was construed in the case of Tapper v. Boston Chamber of Commerce, 235 Mass. 209, 219, 126 N. E. 464, 468, and the court held that the statute "conferred authority upon the trustees to acquire under the direction of the board of directors and hold in the fund certificates of membership however classified, * and that by reason of the power given to vote the certificates it is the duty of the trustees to vote them so far as they are a part of the trust fund "for the general benefit of the new corporation" as provided by section 21. * The record shows that the trustees have acquired outright 901 certificates, and by assignments (under which the original holders are to receive a 4 per cent. bond of the par value of $200 secured by a mortgage on the real estate of the corporate defendant) 771 certificates, leaving out of the total number of 2,000 only 328. It is agreed that: ་ "Continuously after said decision of Tapper v. Boston Chamber of Commerce the directors of the defendant corporation have considered plans to complete the retirement of the certificates of membership and the proposed exchange of second mortgage bonds therefor. The directors of the defendant corporation have considered the retirement and cancellation of the certificates of membership to be for the advantage of said corporation because they consider that the rights which some of the owners of certificates of membership have asserted from time to time would interfere with the right of any members who did not hold certificates to take part in any matter relating to the policy of the defendant corporation when the decision involved any expenditure whatever and because they believe that it has been found undesirable for a corporation like the defendant corporation to have different classes of members with different right and prerogatives, tending to prevent unity of action and wholehearted co-operation most desirable for such an institution. The plaintiffs rebut this contention." It appears that, in April, 1923, notices of a special meeting to be held on May 3, 1923, [1] It is agreed that the trustees propose, if not prevented by this suit, to vote all the certificates owned by them, whether by assignment or otherwise, in favor of canceling and retiring all certificates of membership upon the payment from the treasury of the corporation of the sum of $200 and accrued interest to each holder; it being intended that thereafter there shall be but one form of membership. As the right of the trustees to vote the certificates held by them is expressly given by St. 1914, c. 82, and as that right has been affirmed by this court in Tapper v. Boston Chamber of Commerce, supra, that question is settled. Their right to vote such certificates for what they deem to be the general benefit of the corporation is not limited so long as they act honestly and in good faith. There is no allegation in the bill and nothing in the record to warrant a finding that they or the directors are actuated by any different motive. The plaintiffs contend that the trustees, in acquiring the certificates for the purpose of voting them as they propose, have violated their duties, in derogation of the rights of the plaintiffs, and have abused the powers conferred upon them as trustees. This contention cannot be sustained; there is nothing to show that the proposed action is contrary to the general benefit of the corporation or of its certificate holders. [2-4] 2. It is argued that St. 1909, c. 251, § 13 and St. 1914, c. 82, are repugnant to the Fifth Amendment to the federal Constitution and to the twelfth article of our Declaration of Rights. As to the Fifth Amendment, it was held many years ago that the first 10 Articles of Amendment "were not intended to limit the powers of the state governments in respect to their own people, but to operate on the national government alone." Spies v. Illinois, 123 U. S. 131, 166, 8 Sup. Ct. 22, 24 (31 L. Ed. 80); Commonwealth v. Leventhal, 236 Mass. 516, 128 N. E. 864. We are unable to discover that either of these statutes violates the rights of the plaintiffs guaranteed by article 12 of the Declaration of Rights. The fact that St. 1914, c. 82, was enacted without their knowledge or consent does not impair or affect its constitutionality. The statute does not diminish their voting rights, nor give them proportionately a lesser interest in the corporate property. The Legislature had the right to amend the original charter of the corporation; the rights of the plaintiffs were subordinate to that right, and the Legislature was not bound to give notice to any of these parties. Mayor and Aldermen of Worcester v. Nor-1 votes be taken, the question whether the wich & Worcester Railroad, 109 Mass. 103, nonholding certificate members are entitled 114; Brownell v. Old Colony Railroad, 164 to vote upon the mortgage will not necesMass. 29, 41 N. E. 107, 29 L. R. A. 169, 49 sarily arise if the trustees vote the certifiAm. St. Rep. 442. The statute only author- cates held by them in favor of such mortizes the trustees in the performance of their gage; yet there seems to be no objection to duties to vote the certificates as they deem it | the taking of a vote by such members as an to be for the interest of the corporation. expression of their opinion upon the quesThe constitutional rights of the plaintiffs are not thereby impaired. tion. As argued by the defendants, the retire[5] It has long been settled that the Leg- ment of the certificates will have been voted islature may amend or alter the charter of in the ordinary course of events before the a corporation unless such amendment or al- mortgage is authorized. If a vote is passed teration will defeat or impair the object of to retire the certificates, in accordance with the grant, or vested rights under it. G. L. the provisions of section 13, they will then c. 155, § 3: Commissioners on Inland Fish- cease to be of further force or effect, except eries v. Holyoke Water Power Co., 104 Mass. as entitling each owner to receive $200 in 446, 451, 6 Am. Rep. 247; Selectmen of Nor- cash; and all members of the corporation wood v. New York & New England Railroad, will thereafter stand on the same footing, 161 Mass. 259, 266, 37 N. E. 199; Common- and have the same interest in the property wealth v. Boston & Northern Street Rail- of the corporation, and the same right to way, 212 Mass. 82, 98 N. E. 1075; Looker v. vote on the question of giving a second mortMaynard, 179 U. S. 46, 21 Sup. Ct. 21, 45 L. gage; and the trustees will cease to be cerEd. 79. tificate holders and will have no votes except as members of the corporation. The transfer to the trustees of certificates by the original owners and the power of the trustees to vote them in accordance with section 21 deprive the plaintiffs of no constitutional right. Brightman v. Bates, 175 Mass. 105, 111, 55 N. E. 809; Tapper v. Boston Chamber of Commerce, supra, at page 218 (126 N. E. 464); City of Boston v. Treasurer and Receiver General, 237 Mass. 403, 419, 130 N. E. 390. The rights of the plaintiffs in the assets of the corporation are unaffected by St. 1914, c. 82. The purchase of certificates by the trustees did not change the substantial rights of the certificate holders whose certificates were not purchased. The interest of certificate holders in the property under section 13 of the original charter was always subject to extinguishment by the retirement of all certificates thereunder, and the use of the general funds could be employed for that púrpose. [7] 4. The remaining question relates to the power of the directors to make a charge to members who use the trading facilities referred to in section 7 of the charter. It is there stated that: "Provision shall be made in the rules and bylaws of the new corporation for the continuation and regulation of the existing trading facilities." Section 12 provides that the members who do not hold certificates shall have all the rights and privileges of certificate holders other than the right to vote in matters affecting the management of the property, "except that they shall not be allowed to participate in the trading privileges and facilities" of the corporation. Article II, § 2, of the by-laws provides that certificate-holding members shall be given certificates entitling them among other things to participate in the trading privileges and facilities of the chamber "* * under such rules and regulations as may from time to time be established." Article V, §§ 1 and 4, give the directors the management of the affairs of the chamber, and the direction of its "commercial, industrial, public, and financial policies," subject to such instructions as may be given at duly called meetings of the chamber, and the power to "adopt or amend rules and regulations for the government and proper business conduct of the chamber." [6] 3. The corporation under section 5 of its charter is expressly authorized to mortgage its property. The plaintiffs contend that only certificate holders are authorized to vote upon the question of placing a mortgage on the property and that the trustees have no right to vote thereon. But for the reasons already stated, it is manifest that the trustees have that right; to hold otherwise would limit such voting to the holders of the 328 certificates now held by individual members. The trustees have not only full power to vote the certificates, but also, by the provisions of section 21, the same rights in the These by-laws are undoubtedly such as property of the corporation as other certifi- the corporation properly could adopt. There cate holders. If, as is proposed, the trustees is nothing in the charter or by-laws which vote the certificates held by them in favor entitles the certificate-holding members to of retiring all certificates, there is no reason use the trading facilities without charge othwhy they may not also vote to issue a mort- er than the payment of annual dues, or progage to secure the payment of bonds. It be-hibits the making of such a charge if the ing proposed that a meeting of each class of directors deem it to be in the interest of the members shall be held and that separate | corporation. It is alleged in the bill that |