WARNER BROS PICTURES v. BRODEL (1947)

Asserting the right, after she had reached the age of 21 years, to disaffirm a contract entered into with appellant during her minority for the performance of services as a motion picture actress, respondent Joan Brodel gave notice of disaffirmance and engaged herself to perform like services for the other respondents, Nero Pictures, Inc., and Seymour Nebenzal. Appellant disputed Miss Brodel's privilege of disaffirming the contract and claiming the exclusive right to employ her thereunder brought this action to enjoin her from performing services for the other respondents or for any person or corporation other than appellant, and to enjoin said respondents from permitting her so to do. The term ‘respondent’ when used hereinafter refers to respondent Joan Brodel unless otherwise specified.

This is a case of first impression, the effect of orders approving contracts pursuant to the second paragraph of section 36 of the Civil Code, added by amendment in 1927, not having heretofore been brought into question in a court of appellate jurisdiction. Moreover the statute has no counterpart in any other state.

General demurrers to the complaint were sustained without leave to amend. Judgment in favor of respondents followed from which this appeal was taken.

1. The allegations in the complaint. The complaint alleges these facts: On or about March 27, 1942, respondent Brodel entered into a contract with appellant for the performance of services as a motion picture actress. At the time of the execution of the contract she was 17 years of age. Appellant filed its petition in the superior court on April 22, 1942, asking for the approval of the contract pursuant to the provisions of section 36 of the Civil Code. Notice of the hearing was given in the manner provided by law. Respondent appeared at the hearing accompanied by her guardian, her attorney and her parents. Evidence was heard and the court made an order confirming, ratifying and approving the contract. Respondent rendered services under the contract throughout the basic period of 52 weeks to and including March 31, 1943. Appellant exercised its option to avail itself of respondent's services for the first, second and third extended periods of 52 weeks each, and she rendered her services throughout such periods pursuant to the terms of the contract. On February 13, 1946, appellant exercised its option to avail itself of respondent's services for the fourth extended period of 52 weeks, to commence in 1946. On February 20, 1946, by a notice in writing, respondent renounced and disaffirmed the contract and informed appellant that she would render no further services thereunder. The notice of disaffirmance was given less than one month after respondent reached the age of 21 years. In March, 1946, respondent Brodel entered into a contract with respondents Nero Pictures, Inc., and Nebenzal whereby she agreed to render services for them as a motion picture actress. All respondents were then fully aware of the fact that respondent Brodel was bound by her contract to render services exclusively for appellant.

Upon the foregoing allegations appellant asserts the right to respondent's services and seeks an injunction restraining her from violating the contract.

2. The provisions of the contract. The contract is set out in the complaint. Among other things it provides: (a) Appellant employs and engages respondent to render her exclusive services ‘for and during the term of this agreement’ and respondent accepts such employment and agrees to perform all the obligations and agreements contained in the contract and to perform solely and exclusively for and as requested by appellant. (b) The term of the contract commences March 30, 1942, and continues for a period of 52 weeks at a compensation of $600 per week, with the right to appellant to lay off respondent without pay for not exceeding 12 weeks during the term of employment. (c) The services to be rendered by respondent and the rights and privileges granted by her to appellant under the contract are deemed to be of a special, unique, extraordinary and intellectual character, giving them a peculiar value, the loss of which cannot be reasonably and equitably compensated in damages in any action at law. (d) In consideration of the terms and covenants of the agreement respondent grants to appellant the following rights or options: To extend the term of employment for an additional period of 52 weeks from and after the expiration of the period of the original employment, and five successive options each for an additional period of 52 weeks, the compensation increasing for each period. (e) Respondent warrants that she is 17 years of age, having been born January 26, 1925.

3. History of section 36 of the Civil Code. Prior to 1927 the section read as follows: ‘A minor can not disaffirm a contract, otherwise valid, to pay the reasonable value of things necessary for his support, or that of his family, entered into by him when not under the care of a parent or guardian able to provide for him or them.’ Amdts. to Codes 1873–74, p. 183. In 1927 the section was amended by adding a second paragraph reading as follows: ‘A minor can not disaffirm a contract otherwise valid to perform or render services as actor, actress, or other dramatic services where such contract has been approved by the superior court of the county where such minor resides or is employed. Such approval may be given on the petition of either party to the contract after such reasonable notice to the other party thereto as may be fixed by said court, with opportunity to such other party to appear and be heard.’ Stats.1927, ch. 876, p. 1917. In 1941 the section was again amended by including within the provisions of the second paragraph, relating to contracts to perform services, participants in professional sports—boxers, wrestlers and jockeys. Stats.1941, ch. 734, p. 2251.

We are not concerned with the legality of the latter amendment since any question applicable to those engaged in professional sports will not affect the validity of that portion of the section relating to persons in the occupations covered by the amendment of 1927.

4. The constitutionality of the 1927 amendment to section 36 of the Civil Code. This question has been argued in the briefs and to the end that contracting parties, both producers and actors, may know their rights and liabilities each to the other it should be determined.

It is claimed that the second paragraph of section 36 is in violation of subdivisions 12, 17 and 33 of section 25 of Article IV of the Constitution of California forbidding the legislature to pass local or special laws in any of the cases enumerated therein. The three subdivisions of that section that are asserted to be transgressed will be separately discussed.

(a) Subdivision 12: ‘Affecting estates of deceased persons, minors, or other persons under legal disabilities.’ In order that section 36 of the Civil Code may be declared to be in violation of this provision it must first be determined that it affects the estates of minors. Since it has no application to the acquisition, ownership, possession or disposition of their property it can have no effect on their estates as that term is ordinarily used and understood. Such indirect effect as may possibly result by reason of the fact that an order approving a contract will determine the income of the minor during the term of the contract and thereby limit the earnings that may become a part of the minor's estate is so remote that it cannot be considered as affecting the estate of a minor in the sense used in the constitution.

We find that in other jurisdictions special laws have been passed and sustained empowering the parent or guardian of a specifically designated minor to sell the minor's property and directing the manner of disposition of the proceeds, and special authority has been granted to guardians in cases of a certain character. See Rice v. Parkman, 16 Mass. 326; Kerr v. Kitchen, 17 Pa. 433; Carroll v. Olmsted, 16 Ohio 251; McComb v. Gilkey, 29 Miss. 146; Louisville etc. Ry. Co. v. Blythe, 69 Miss. 939, 11 So. 111, 16 L.R.A. 251, 30 Am.St.Rep. 599; Brevoort v. Grace, 53 N.Y. 245.

Subdivision 12 was no doubt made a part of the Constitution for the purpose of precluding the passage of similar statutes in California and of preventing the singling out of the property or estate of any one minor for the special and individual attention of the legislature.

(b) Subdivision 17: ‘Declaring any person of age, or authorizing any minor to sell, lease, or encumber his or her property.’ This provision has the same purpose as subdivision 12—to inhibit legislation applying to one individual and may be dismissed from further consideration except to note that section 36 of the Civil Code does not purport to declare any person or group of persons to be of age, nor to authorize the sale or other disposition of property.

(c) Subdivision 33: ‘In all other cases where a general law can be made applicable.’ In respect to whether a statute infringes this provision there are certain established principles that must be taken into consideration. Whether a law is special or general depends upon whether it makes an arbitrary or discriminatory classification. There is no absolute, inflexible rule by which the boundaries of allowable deviation from uniformity may be fixed nor whereby the line may be established which, if passed, will result fatally to the statute. The courts must decide the question in each case as it arises, with the presumption at the outset in favor of the constitutional exercise of the legislative power. A statute is not in violation of the Constitution if it operates uniformly upon all persons standing in the same relation to the law in respect of privileges and immunities conferred by it or of acts which it prohibits.

A law applicable to only one class of citizens is not subject to constitutional objection if it is based upon intrinsic differences requiring different legislation. Deyoe v. Superior Court, 140 Cal. 476, 481, 74 P. 28, 98 Am.St.Rep. 73. The Constitution does not prohibit legislation for different classes of citizens and if the individuals to whom the law is applicable constitute a class which requires legislation peculiar to itself in the matter covered by the law, the statute is nonetheless general. People v. Central Pac. R. Co., 105 Cal. 576, 584, 38 P. 905. The class must not only be germane to the purpose of the law but must also be characterized by some substantial qualities or attributes that render such legislation necessary or appropriate for individual members of the class and that are founded upon some natural or intrinsic or constitutional distinction. City of Pasadena v. Stimson, 91 Cal. 238, 251, 27 P. 604; Deyoe v. Superior Court, supra; People v. Central Pac. R. Co., supra. The classification must not be arbitrary for the mere purpose of classification but must be founded upon some natural or intrinsic or constitutional distinction that will suggest a reason that might rationally be held to justify the diversity in the legislation. City of Pasadena v. Stimson, supra; Deyoe v. Superior Court, supra.

The presumption is that an act of the legislature is constitutional, and when this depends upon the existence or nonexistence of some fact or state of facts, the determination thereof is primarily for the legislature, and the courts will acquiesce in its decision unless the error clearly appears. In re Spencer, 149 Cal. 396, 400, 86 P. 896, 117 Am.St.Rep. 137, 9 Ann.Cas. 1105. Unless the decision of the legislature is manifestly unreasonable there is no ground for judicial interference. In re Weber, 149 Cal. 392, 395, 86 P. 809. A statute should not be declared unconstitutional by the court unless it is clearly apparent that the act is in violation of some provision of the Constitution. Where there is reasonable doubt as to the validity of the act its constitutionality should be affirmed. Deyoe v. Superior Court, supra; Moore v. Williams, 19 Cal.App. 600, 606, 127 P. 509; Gregory v. Hecke, 73 Cal.App. 268, 281, 238 P. 787; Rainey v. Michel, 6 Cal.2d 259, 271, 57 P.2d 932, 105 A.L.R. 148. The facts warranting the classification and the reasons actuating the legislature in creating a class need not appear upon the face of the statute, but if the necessary facts are before the court in any manner and if such facts will sustain the law the court should uphold the legislation. Ex parte King, 157 Cal. 161, 164, 106 P. 578.

Minors as a whole have always been set apart and have been given privileges and immunities not possessed by the people as a whole. Because they are mentally undeveloped and are unable to exercise a mature judgment the state, as parens patriae, exercises control over their affairs through manifold statutes passed for their benefit. The doctrine of parens patriae is the inherent power and authority of the state to provide protection of the person and property of a person non sui juris. McIntosh v. Dill, 86 Okl. 1, 205 P. 917, 920; Louisville, N. O. & T. R. Co. v. Blythe, 69 Miss. 939, 11 So. 111, 113, 16 L.R.A. 251, 30 Am.St.Rep. 599. The legislature is possessed of inherent power to provide protection to persons non sui juris, and to make and enforce such rules and regulations as it deems proper for the management of their property. See McIntosh v. Dill, supra; Brenham v. Davidson, 51 Cal. 352; McLean County v. Humphreys, 104 Ill. 378; New York Life Ins. Co. v. Bangs, 103 U.S. 435, 26 L.Ed. 580; Cochran v. Van Surlay, 250 Wend. 365, 32 Am.Dec. 570.

The age at which an infant shall be competent to do any act or to perform any duty depends wholly upon the legislature. In re Morrissey, 137 U.S. 157, 11 S.Ct. 57, 34 L.Ed. 644. The period of majority is a matter within legislative discretion to determine (Moore v. Williams, supra), and the legislature may prescribe a longer period of minority for some purposes than for others. Gouanillou v. Industrial Accident Comm., 184 Cal. 418, 421, 193 P. 937. It is competent for the legislature to provide regulations for the protection of children of immature years, and its judgment in regard to the proper age at which such regulations shall become applicable to the child cannot be interfered with by the courts. In re Weber, 149 Cal. 392, 395, 86 P. 809. The legislature has power to endow minors with the right to make contracts otherwise lawful and after he has been so endowed he becomes, for the purpose of the act, an adult or at least on the same plane. Scott v. Nashville Bridge Co., 143 Tenn. 86, 121, 223 S.W. 844; Borgnis v. Falk Co., 147 Wis. 327, 364, 133 N.W. 209, 37 L.R.A.,N.S., 489. The disability of an infant to enter into a binding contract is not a property right. An infant has no vested right in the disability erected by the common law as a barrier against his making binding contracts during his infancy to the extent that the legislature may not constitutionally remove such disability as to future contracts to which he may become a party. The legislature has power to change the age at which a minor is privilege to exercise legal rights upon which he shall become obligated and it may deny his right to disaffirm contracts. Young v. Sterling Leather Works, 91 N.J.L. 289, 102 A. 395; People v. Kowalski, 307 Ill. 378, 138 N.E. 634; Chicago R. I. & P. R. Co. v. Fuller, 105 Kan. 608, 186 P. 127. A statute declaring a minor to be sui juris for the purposes of the act was held not to violate provisions of the Constitution forbidding the passage of local or special acts affecting the estates of infants or relieving an infant of disability or allowing him to do acts allowed only to adults not under disability. Hewitt Lumber Co. v. Brumfield, 196 Ky. 723, 245 S.W. 858; Elkhorn Coal Corporation v. Diets, 225 Ky. 753, 9 S.W.2d 1100. The legislature may remove the disability of infancy so as to permit an infant old enough to work under the labor statutes to make an election as to whether he will work under the compensation law or the common law. Herkey v. Agar Mfg. Co., 90 Misc. 457, 153 N.Y.S. 369.

The legislature having segregated minors as a class from the remainder of the population has further classified them for various purposes. Hours and conditions under which they are permitted to labor are prescribed and the age at which they may begin to labor is fixed; the age of consent is determined and has been changed from time to time; the age at which they reach adulthood is the subject of legislation and it likewise has been varied. When the Civil Code was adopted in 1872, section 56 fixed the age of consent to marry at 18 for males and 15 for females. Ages of consent and conditions permitting marriage of those under such ages have been changed. See Stats. 1921, p. 333; Stats. 1929, p. 1017. By section 261 of the original Penal Code of 1872, intercourse with a girl under 10 years was defined as rape. This section was amended successively raising the age to 14, 16, and and 18. See Stats. 1889, p. 223; Stats. 1897, p. 201; Stats. 1913, p. 212. The age of transition from minority to majority was originally 21 for males and 18 for females (Civil Code of 1872, sec. 25) and was later made 21 for all. (Stats. 1927, p. 1119.) These statutes, together with the child labor law, the juvenile court law, and others, are examples of the exercise by the legislature of its power to provide protection for the person and the property of minors and to change the regulatory provisions at will.

The legislature having set up the several classifications above mentioned determined in 1927 that minors engaged in rendering dramatic services, and their employers as well, should be given the protection and assurance of continuity of service under their contracts, and for that purpose added to section 36 of the Civil Code the paragraph above quoted and now under consideration. Stats. 1927, p. 1917. It is noted in passing that at the same session of the legislature the age of majority for females was raised to 21. Stats. 1927, p. 1119. Whether the legislature intended any connection between these two amendments does not appear from the statutes, but it is common knowledge of which the legislature is presumed to have taken notice that of the large number of persons under 21 years of age engaged in stage, screen and radio performances, a great majority are girls and young women. It may well be assumed that the legislature intended that females up to the age of 21 years should have the same protection of the court's scrutiny and approval of their contracts as that which ws accorded to males who were already declared to be minors until they reached that age.

The portion of section 36 of the Civil Code here under consideration is not subject to the objection that it applies only to contracts for services to be rendered in motion pictures. It pertains to contracts for the performance of services as an actor or actress, and to the performance of any and all other dramatic services, whether upon the legitimate or vaudeville stage, or in opera, radio broadcasts, motion pictures or floor shows in clubs or cafes, and wherever else dramatic services may be rendered or performed.

The disadvantage suffered by minors in the loss of the right to disaffirm contracts after the same have been approved by the court is overbalanced in favor of the minors and of their welfare by the right given to them by the same provision of the code to have their contracts submitted to the court immediately, or at any time, after their execution. Without such provision if a minor should sign a contract wholly unfair to himself and should perform services under it for a long period of time before he chose to disaffirm, then upon disaffirmance he would not be able to recoup for any detriment caused to him by unjust provisions of the contract.

The statute invites the minor, as well as the employer, to submit the contract to the court and to petition for its approval. In the exercise of the power given to the court by the statute to supervise and to approve or disapprove such contracts it may refuse its sanction until amended in such manner that it will be fair, just and equitable. We find no reason for anticipating that such supervision will cause any loss or damage to a minor employee or any impairment of his earnings.

It is common knowledge that a large percentage of minors employed in both dramatic and motion picture work are undeveloped ‘raw material’ and that such talents as they may have are unknown at the time of employment. Large expenditures are made in the training and ‘buildup’ of the actor, in publicity and propaganda to bring him to the attention of the public and not only to make him a valuable asset to the employer but, as well, to place him in a position to receive merited compensation. It is obvious that no employer would be disposed to expend any considerable amount in the development of an untrained actor into a star, in advertising him to the public and in making him a valuable box office attraction with the knowledge that the minor could at any time within the period covered by the contract disaffirm it and accept employment upon a rival stage or in a rival studio, giving the latter the benefit of the precedent publicity and training which the minor had received at the hands of the first employer. (The right of an employee to disaffirm a contract after reaching legal age is discussed in a later portion of this opinion.)

It is also common knowledge that vast sums are expended in the preparation of a single stage production or motion picture. No one would risk a fortune in the preparation and partial presentation of a play or in the production of a motion picture if the principal player could leave at will and enter employment elsewhere.

The protection thus given to the employer is of little importance as compared with the benefit conferred upon the minor. Without this provision in the statute the employers no doubt would be unwilling to expend their funds for the purposes mentioned and possibly would employ but few minors, as a consequence of which many of the minors now employed would never attain a position where they would be able to earn more than the small salaries of novices, thus depriving them of the wealth which they have been enabled to possess through the operation of the statute.

Experience has shown that many contracts have been procured with minors that were not for bona fide employment but were for the purpose of exploiting them and of making use of their talents with little or no gain to them but with profit to the employers. This is a concrete illustration of the beneficent purpose of the statute and of the wholesome result of its proper application. In the absence of section 36 such contracts, unjust and unfair to the minors, would yield large profits to the employers and small compensation to the minors. Both the minors and their parents are usually unschooled in such matters and have no advice from persons who are competent to give it. The aid of the court is proffered by section 36 for the prevention of imposition on the unwary.

Such classification and such discrimination as exists is to the advantage of the class who are set apart as actors, actresses, and persons performing other dramatic services and, as persons favored by the statute, they are not in a position to complain of its unconstitutionality, under the familiar rule that only those who are affected adversely by a law may object to it on the ground of its invalidity. A.F. Estabrook Co. v. Industrial Accident Comm., 177 Cal. 767, 769, 177 P. 848; Scheerer & Co. v. Deming, 154 Cal. 138, 142, 97 P. 155; Title Ins. & Trust Co. v. Lusk, 15 Cal.App. 358, 361, 115 P. 53. Since employers are not obliged to enter into contracts with minors they are not concerned with the validity of the statute and are therefore precluded from questioning it.

Motion pictures and the drama are in a realm apart from all others in the emoluments, both in money and in fame, bestowed upon those who choose those fields. In no other profession is it possible for any one, minors in particular, in so brief a period, to receive the financial returns there offered, and nowhere else is the reward of glory and public acclaim to be realized at an early age.

The classification of minors so employed is neither arbitrary nor discriminatory but is founded upon a natural and rational distinction, differentiating its members from the general body of the people, and requiring legislation with reference to their contracts different from that which is applicable to persons not performing dramatic services.

For the foregoing reasons section 36 of the Civil Code is not in conflict with the Constitution of California or with the Fourteenth Amendment to the Constitution of the United States.

What we have said refers only to the constitutionality of the statute and has no reference to the form or contents of contracts that the court is authorized thereby to approve. This subject is discussed in a later portion of this opinion.

5. Was the agreement in question (a) only for the original term of employment, the options not becoming binding unless and until exercised by appellant, or (b) a single contract including both the term of original employment and the periods covered by the options? The correlated query is, Did the order of the court approving the contract apply only to the original term of employment for one year or did it include the approval of the options?

Section 36 of the Civil Code provides that a minor cannot disaffirm a contract to perform or render services as an actor where such contract has been approved by the superior court. The only contract ‘to perform or render services' found in the agreement in question between appellant and respondent is in paragraph 1 of the document wherein appellant ‘hereby employs and engages' respondent ‘for and during the term of this agreement’ and respondent ‘hereby accepts such employment and agrees to perform and keep all of the duties, obligations and agreements assumed or entered into by her hereunder,’ and in paragraph 3 which reads: ‘The term of this contract shall commence on the 30th day of March, 1942, and shall continue thereafter for a period of fifty-two (52) weeks.’ The term for which respondent was employed was for 52 weeks and no longer. The options granted by respondent for additional terms of employment, to which we shall refer, were not contracts whereby she was employed but were offers by her to hold her time open for the use of appellant if it desired her services upon the expiration of the term of actual employment.

Paragraph 28 of the contract provides that in consideration of the terms and covenants of the agreement respondent grants to appellant ‘the following rights or options: (a) To extend the term of employment of the Artist for an additional period of 52 weeks from and after the expiration of the period herein specified.’ (Emphasis added.) The other five successive options are in the same language.

The options are not of the character of the contracts referred to in section 36 of the Civil Code, to wit, ‘to perform or render services.’ By reason of paragraphs 1 and 3 of the contract respondent was employed and appellant was bound to pay her for 52 weeks but under the provisions of the options appellant did not employ or agree to pay her and she did not promise to perform services. She gave appellant the right or option to extend the period of employment, but until appellant exercised an option by giving her notice thereof there was no contract and neither party was obligated to the other.

An option is a contract whereby one party agrees to keep an offer open for a stated period of time upon specified terms and conditions. It may become a contract binding on both parties, depending on whether or not the optionee exercises the right granted to him by the optionor. It is not specifically enforceable by either party until it has been accepted by the optionee. When accepted it becomes a contract that may be enforced by either party.

Options have been variously defined and the rights acquired thereunder described and limited. An option on real property is not a sale of the property but is the sale of a right to purchase it. Hicks v. Christeson, 174 Cal. 712, 716, 164 P. 395; Dreyfus v. Richardson, 20 Cal.App. 800, 805, 130 P. 161. It is not a contract of sale nor an agreement to sell (Howard v. D. W. Hobson Co., 38 Cal.App. 445, 455, 176 P. 715) but is a ‘mere right of election acquired by one under a contract to accept or reject a present offer within the time therein fixed.’ Ware v. Quigley, 176 Cal. 694, 698, 169 P. 377, 378. The optionee acquires no actual interest in the property covered by the option until he has seasonably exercised his option to purchase by accepting the offer according to its terms. Ludy v. Zumwalt, 85 Cal.App. 119, 130, 259 P. 52. When the offer thus made is accepted within the time stipulated, the transaction ipso facto ceases to be an option and becomes a sale or a contract of sale according to the circumstances of the acceptance. Menzel v. Primm, 6 Cal.App. 204, 209, 91 P. 754; Tufts v. Mann, 116 Cal.App. 170, 178, 2 P.2d 500.

An option to buy is not synonymous with an agreement to buy. If the terms of the option be complied with by the optionee he acquires rights that he may enforce, but if he elects not to comply there is no specifically enforceable agreement and the optionor cannot compel compliance with its terms. Bruce v. Mieir, 120 Cal.App. 287, 290, 7 P.2d 1037. An option is an unaccepted offer to sell, a continuing offer until the expiration of the time limited for its acceptance, which, by reason of the lack of an agreement between the minds of the parties, does not become a contract of sale until accepted. Standiford v. Thompson, 4 Cir., 135 F. 991, 996; Milwaukee Mechanics' Ins. Co. v. B. S. Rhea & Son, 6 Cir., 123 F. 9, 11. It is a contract by which one binds himself to sell property or to perform services and leaves it discretionary with the other to take the property or to accept the services on the terms specified. Shubert Theatrical Co. v. Rath, 2 Cir., 271 F. 827, 833, 20 A.L.R. 846.

Appellant relies strongly on the case of DeHaviland v. Warner Bros. Pictures, Inc., 67 Cal.App.2d 225, 153 P.2d 983, in support of their contention that a contract of employment for 52 weeks with six options for 52 weeks each is a single contract covering the entire period of seven years. We find nothing in that case applicable to the question under discussion. The options there had all been exercised and seven years from the commencement of service had expired, but the continuity of the plaintiff's work had been interrupted by periods of suspension occasioned by her refusal to perform services as required by the defendant. The contract provided that the producer had a right to extend the term of the contract, at its option, for a time equal to the periods of suspension. The court held that section 2855 of the Labor Code limited the term of a contract to render personal services to seven years ‘from the commencement of service under it,’ quoting the language of the section, and since a contract for a period of seven years ‘of actual service’ from the commencement of the employment would extend the time of service beyond the time limited by the statute such a provision was unenforceable. Since the options provided for in the contract had all been exercised and the full period of seven years from the commencement of the plaintiff's service had expired, there was no occasion to discuss the legal effect of the options and the court gave no consideration to the question.

There is no question but that employment contracts may validly give the right to the employer to extend the term annually or for a term of lesser or greater length. Philadelphia Ball Club v. Lajoie, 202 Pa. 210, 51 A. 973, 974, 58 L.R.A. 227, 90 Am.St.Rep. 627; Shubert Theatrical Co. v. Rath, supra. However, we have found no authority holding the right to extend the period of service to be any more than an option to claim the services of the employee that the employer may or may not exercise. Each option was a conditional agreement on the part of respondent to perform services, the condition being that appellant would exercise the option in the manner and within the time specified in the contract.

Assuming that in the contract between appellant and respondent there had been no words of employment on the part of appellant and no promise by respondent to render services for any period of time, and that the contract contained nothing but an option whereby she gave the right to appellant to demand her services at some future time, it could not be contended that there was a contract such as is referred to in section 36 of the Civil Code ‘to perform or render services.’

An option upon the right to require the performance of services is not different legally from an option to purchase real estate. The optionee has the right to call upon the optionor for the performance of services for the additional period specified in the option, but if the optionor is not notified in the manner and within the time required by the option that it has been exercised he is released from all obligations to the optionee.

By virtue of the options contained in the contract here under consideration, granting the ‘right or option’ to appellant ‘to extend the term of employment,’ respondent did not sell her services for any one of the extended periods but merely sold to appellant the right to purchase them in the future. The options were not unqualified agreements by her to render services nor by appellant to require or to pay for them. The contract was that she would keep open her offer and allow appellant to determine within the time limit of each option whether or not it would employ her. Manifestly if appellant had failed to exercise any one of the options neither party would have been obligated to the other—respondent to work or appellant to pay. Since there was no contract ‘to perform or render services' after the end of the first year of employment there was nothing for the court to approve except the contract whereby respondent was definitely employed for one year, and the order of approval is limited in its legal effect to the contract of employment for one year. It cannot be construed as an approval of the options to keep offers of employment open, to be accepted or rejected by appellant in the future.

6. Respondent's right to disaffirm the contract. A minor has no natural, inherent or constitutional right to disaffirm a contract. This right is purely statutory, as is the age of reaching adulthood, and the age of consent to marry. Since the right to disaffirm and the conditions of disaffirmance are statutory they may be changed whenever deemed needful or proper by the legislature in its capacity as parens patriae. The right to disaffirm is not an absolute right but is a privilege granted to persons who enter into contracts while non sui juris and not to others. It is a ‘right accorded by the state,’ it may be regulated in such manner as is deemed proper by the legislature, and the right may be entirely or partially withdrawn. The right is given to disaffirm certain contracts but not contracts for necessities. Civil Code, sec. 36, first paragraph. A contract other than for necessities, entered into while the minor is under 18 years of age may be disaffirmed without condition, but if he was over 18 when he made the contract he may disaffirm only upon restoring the consideration to the party from whom it was received. Civil Code, sec. 35. Any of these provisions may be amended or entirely withdrawn at the will of the legislature.

The legislature possesses power to determine at what age a minor may disaffirm a contract and the terms upon which it may be disaffirmed, and to change both the age and the terms from time to time. It has equal power to prescribe the conditions that will debar a disaffirmation. It has no less authority to fix the terms upon which a contract may not be disaffirmed than to determine those upon which it may be disaffirmed. Having jurisdiction so to do, the legislature has enacted that a contract whereby a minor agrees to perform dramatic services cannot be disaffirmed by him if the superior court has approved it. The legislature has chosen to make the court the practical guardian of the minor for the purpose of supervising his contract.

Section 35 of the Civil Code reads in part as follows: ‘In all cases other than those specified in sections thirty-six and thirty-seven, the contract of a minor, if made whilst he is under the age of eighteen, may be disaffirmed by the minor himself, either before his majority or within a reasonable time afterwards; * * *’. Since section 37 refers to contracts entered into by minors under express authority or direction of a statute it does not enter into this discussion. We are concerned only with section 36.

Respondent's disaffirmance of her contract must be sustained for two reasons:

(1) Section 36 validates contracts of minors when approved by the superior court. Under the doctrine of parens patriae a state has the sovereign power of guardianship over persons of disability, such as minors and incompetent persons. In re Turner, 94 Kan. 115, 145 P. 871, 872, Ann.Cas.1916E, 1022; Louisville, N. O. & T. Ry. Co. v. Blythe, 69 Miss. 939, 11 So. 111, 113, 16 L.R.A. 251, 30 Am.St.Rep. 599. It may control the actions of minors and provide for their welfare. By reason of this power the state has undertaken in section 36 to provide for and to protect those who are incompetent by reason of their minority to care for their own interests. This power ceases when a minor reaches his majority since he is then competent to make such legal contracts as he desires without interference from the state.

The legislature, in adopting section 36, recognized its lack of power over contracts of adults by providing that a minor cannot disaffirm a contract approved by the court, but it did not attempt to restrain the disaffirmance of such a contract after the contracting party had passed out of the control of the state by becoming an adult.

Even if the soundness of appellant's theory to the effect that the order of the court approving the contract included the approval of the options as well should be conceded, respondent would nevertheless have been privileged to disaffirm the contract (a) because section 36 was applicable to her only while she was a minor and does not by its terms purport to control her right of disaffirmance after she became an adult; and (b) because the state did not have power, if it had so attempted, to deny her that right upon her reaching majority.

(2) The option contracts are separable from the contract to render services. The latter is a presently existing contract enforceable by either party, while the option is an offer by the employee that does not become an implemented contract of employment until the offer is accepted by the employer.

Since section 36 mentions only a contract to perform or render services and not an option contract the effect of the order approving the contract between the parties was to approve only that portion by which respondent was definitely employed for the original term of one year. Each option, when exercised by appellant, became a new contract between it and respondent. No one of the contracts of employment that resulted from the exercise of the options was approved by the court, hence there was no inhibition on her disaffirmance of the unapproved contract.

The case of Blackburn v. Home Life Ins. Co. of New York, 19 Cal.2d 226, 120 P.2d 31, does not assist us in determining whether the options are separable from the main contract. That case related to ‘riders' attached to an insurance policy which the law of the state in which the policy was issued expressly declared were deemed to be parts of the policy.

Appellant advances the argument that because large sums of money are expended by a motion picture producer in developing the talents of a young actress and in publicizing her ability and her charms he would be unwilling to make such expenditures unless assured of the right to her services for a long period of time. This argument is one of economics affecting the motion picture industry and on that ground has much merit. However, it does not overcome the legal barrier that the options are not agreements of employment that, when approved by the court, are not subject to disaffirmance but are only contracts whereby the time of the actress is reserved for the benefit of the employer who may, but need not, extend the period of employment. The plight in which appellant and other motion picture producers have placed themselves by making short-term contracts cannot be fashioned into a Procrustean bed on which the law may be stretched or amputated to fit the circumstances. Contracts of definite employment for longer periods would dispose of the arguments made by appellant on this phase of the case and would protect employers from loss to which we referred in our discussion of the constitutionality of the statute.

When the optionor is a minor at the time the option is granted, as in the instant case, her right to disaffirm either the option or the contract created by its exercise abides with her as fully and to the same extent as her right to disaffirm any other contract except one for necessaries of life on one that the law makes binding by expressly declaring it to be beyond the power of a minor to disaffirm.

7. Is the order approving the contract res judicata barring respondent's right to disaffirm? Appellant contends that the disaffirmance of the contract is a collateral attack on the order of approval that had become final and is res judicata. The basis of this argument is that the court had power to approve and did approve the options. If a court has jurisdiction to determine a cause or any question arising in judicial proceedings it has jurisdiction to determine wrongly as well as rightly. If the decision is a mere error it can be corrected only by appeal and is not subject to collateral attack. This rule is applicable to errors made when the court has jurisdiction of the action. If the cause is not within the court's jurisdiction then the order is not merely erroneous but it is void and subject to attack either directly or collaterally. Estate of Pusey, 180 Cal. 368, 374, 181 P. 648; Bartholow v. Davies, 276 Ill. 505, 114 N.E. 1017, 1020.

Since, as we have determined, the court was without jurisdiction (1) to approve the options for the reason that they were not contracts to perform or render services, or (2) to validate the contract for a period extending beyond respondent's minority, the order approving the contract applied only to the original term and was no impediment, when she became of legal age, to her disaffirmance of the contract that arose by appellant's exercising of the option.

8. The cause of action against respondents Nero Pictures, Inc., and Nebenzal. An injunction was sought to restrain said respondents from permitting respondent Brodel to perform services for them or for any person or corporation other than appellant. Inasmuch as respondent Brodel had power to and did disaffirm her contract with appellant she is free to make a contract with the other respondents and therefore a cause of action is not stated against them.

Judgment affirmed.

WILSON, Justice.

MOORE, P. J., and McCOMB, J., concur.