214
time note, and that the potiey was delivered
subject to the readjustment of the premiums
and statement of the amount Whipple was to
pay as stated in the letters of Wilson, there
Was evidence that the defendant waived its.
right. ‘The evidence was inconclusive, ane
furnished grounds of inference and deduction
which it is the appropriate province of
Jury only to consider.
‘The judgment should be reversed, and a
new trial granted, costs to abide the event.
HISCOCK, 6. J., and CHASE, HOGAN,
CARDOZO, MeLAUGHLAN, and CRANE, JJ,
Judgment reversed, ete.
WOOD y, LUCY, LADY DUPF-GORDON.
(Court-of Appeats of New York, Dee. 4, 19
Contacts €>100)—Muruatrry oF OBLIGA-
Where the
organization
Signs and indorsemet
plaintit, who possessed 9 business
apted to the placing of stich de-
rane au ue ght ie
Sapprove, enteral inte ah agreement for the
exclusive right 10 handle and’ sell all such or
ence others. to market. them, and take ‘out
Copgrighte to protect. them and, jn return de;
febdane was te bave one-half of “all profits and
Fevenyes’ to be necountel for monthly, the as
Eumption of Ge exclusive agency was, amas:
Suimption of sts dutler, ant aithotgh net stated
nite contract, tris falrly Implied thet, plaine
‘must Use all reasonable efforts to market
Suet “ndorsements nd. designs, ani hence. the
ontgee ne elo wane oe ucaity ed
onsderation.
‘Hiscock, C. J., and Chase and Grane, J, dis:
senting
Appeal from Supreme Court, Appellate Di-
vision, Pirst Department
‘Action by Otis F, Wood against Tey,
Lady DuffGordon, From a judgment of the
Appellate Division (77 App. Div, 624, 164
Ni'Y. Supp, 570, which reverse) an order
denying defendani’s motion for judgment ow
the pleading, and which dismissed the con
plain, Dlainti’ appeals, Reversed
John Jerome Rooney, of New York City,
for appellant. Edward B. Hoeulg, of New:
York City, for respondent.
CARDOZO, J. ‘The defendant styles her-
self “‘a creator of fashions” Her favor
helps a sale. Manufacturers of dresses, mil
inery, and like articles are glad to pay for
fa certificate of her approval. ‘The things
which she designs, fabrics, parasols, and
What not, have a new value in the public|
mind when issued In her name. She em
ployed the plaintiff to help her to turn this
Vogue into wones. He was to have the ex-
Glusive right, subject always to her approval,
to place her indorsements on the designs of|
otters, He was also to have the exclusive!
‘Fight to place her own designs on sale, or
to license others to market them. In retura
‘ihe casos 62 same copie and KB
=F
118 NORTHEASTERN REPORT!
wy
she was to have one-half of “all protits and
[revenues” derived from any contracts he
might make. ‘The exclusive right was to
Inst at least one year from April 2, 1915, and
thereafter from year to year unless terminat:
ed by notice of 90 days. ‘The plaintif” says
that he kept the contract on his part, and
that the defendant broke It. She placed her
Inorsement on fabries, dresses, and mille
ners without nis knowledge, and withheld
the profits, He sues her for the damages,
ahd the ease comes here on demurrer.
‘The agreement of employment is sixntd by
ot parties, Tt has a wealth of regitals.
‘The defendant snslsts, however, that it fiacks
the elements of a contract. She sayd that
the plainth® does not bind himselt to
thing. It is true that he does not promise
in so many words that he will use Teasoma
ble efforts to place the defendant's Indorse-
ments and market her designs. We think,
however, that such a promise is falrly to be
implied.” ‘The law has outgrown its pritai-
five stage of formalism when the precise
word was the sovereign talisman, and every
slip was fatal. It takes a broader view to
day. A promise may be lacking, and yet the
whole writing may be “instinet with an oblf=
gation,” imperfectly expressed (Scott, J in
McCall Co. v. Wright, 133 App. Div, 62, 117
‘YX. Supp. 775; Moran v. Standard Oil Co.,
bi N.Y, 187, 198, 105 N. E. 217). Tf that
is so, there is 'a contract.
‘The implication of a promise here finds
support in many elrcumstances. ‘The de
fedant gave an exclusive privilege. She
was to have no right for at least a year to
|lace her own Indorsements or market her
‘own designs except through the agency of
the plaintif™, The acceptance of the exclu
sive agency Was an assumption of its duties.
Phenix Hermetic Co. ¥. Fhtrine Mfg. Co.
464 App. Div
G. Taylor Co. v. Bannermaal
97 N. AW, 913; ral Spring Co.
$8 Mich, 300, 50 N. W. 319. We are not to
suppose that oue party was to be placed at
the merey of the other. Hearn v. Stevens
& Bro, 11 App. Div, 101, 106, 97 N. ¥. Supp.
566; Tussell ¥, Allerton, 108 N.Y. 288, 15 N.
F. 391, Many other terms of the agreement
point the same way. We are told at the out-
set by way of recital that
‘The said Otis F. Wool possesses a business
‘organization adupted to. the placing” of such
Aorsements aa,the said Laey, Lady Daf-Gordon,
ihas approved.”
‘The implication is that the plaintif’s bust
ness organization will be used for the pur-
pose for whieh it is adapted. But the terms
fof the defendant's compensation are even
fniore significant. Her sole compensation for
the grant of ap exclusive agency is to be one-
aif of all the profits resulting from the
plaintif’s efforts. Unless he gave his efforts,
she could never get anything. Without an
implied promise, the transaction cannot have
{UMBER iw all Key Nowbered Digests and TnderesNX)
such business “ieacy, as both parties must
have intended that at all events It should
ave.” Bowen, L. 3 in the Mooreock, 14 P.
D. 64, GS. But the contract does uot stop
there. ‘The plaintif! goes on to promise that}
hhe will aceount monthly for all moneys re-
ceived by him, and that he will take out all
such patents and copyrights and trademarks
fas may in his judgment he necessary to pro-
teet the rights and articles affected by the
agreement. It is true, of course, as the Ap-
pellate Division has said, that if he was un-
(ler no duty to try to market designs or to
Place certificates of indorsement, his promise
to account for profits or take out copyrights
Would be valueless. But In deterwining the:
fntention of the parties the promise hns a
value, It helps to enforee the conclusion
that the plaintif® had some duties. His prom
fse to pay the defendant one-half of the prof
its and revenues resulting from the excl
sive ageney and to render accounts mont
ly was @ promise to use reasonable efforts
to bring profits and revenues into existence.
For this conclusion the authorities are am-
ple. Wilson ¥. Mechanical Orguinette Co.,
170 N. ¥, 542, 68. N. E, 850; Phanix Her-
metic Co. . Filtrine Mtg. Co, supra; Jac
fquin v, Boutard, 8) Hun, 427, 85 N.Y
Supp. 406; 1d, 157 N. Y, 680, 51N. E. 1091;
Moran y, Standard Off Go., supra; Clty of N,
Y, v, Paoli, 202 N, Y. 18, 94 N. B, 10775" Me-
Intyre v. Belcher, 14 C. B. [N. S654; Des
onald v. Rosser & Sons (1906) 2 1K. B. 728;
W. G. Taylor Co. v. Bannerinan, supra
Mueller v. Mineral Spring Co, supra; Bak
er Transfer Co. v. Merchants’ R. & T. Mf
Co, 1 App. Div, 507, 87 N. Y. Supp. 276,
"Hue Judgment of the Appellate Division
showld be reversed, and the order of the
Special Term alfirmed, with costs in the Ap-
pellate Division and th this court.
CUDDEBACK, MeLAUGHEIN, and A
DREWS, JJ,, concur. HISCOCK, C. J., amd
CHASD and CKANE, J4., disseut.
Order reversed, ete.
GUIRIZINSKE v. AMBRICAN
RADIATOR Oo.
(Court of Appeals of New York. Dee. 4, 1917)
1. Masten ax Seevayt G=15%2) — Ne
gescr OF FELLOW ‘Sevant—Liamitity OF
Masten
Snder Labor Taw (Consol, Laws, c. 31) §
200, a8 amended! by Laws. 1910, ‘making
the master liable for injuries dye to the neghie
fonee ‘of his" superintendent, the “master was
Fate £0 paint whose uty ieswas to aid.
bate epaier a firectedy for ngage fy the
hegligence of the repairer. ina deta of the
Morkeas well a for his negligence in directing
plasacit
SP Sasten axp Sexvaxt @=288(1)-—Assuwr.
‘row oF isk — NeouiceNce OF SuPERIN-
‘A servant whose duty it was to aid a belt
repsirer did not, ts @ maiter of law, assume the
GUIRIZINSKI ¥, AMERCAN RADIATOR CO,
215
[risk for injuries due to the negligonce of the
B.Masten ap Senvax® @=280(15) — Cox-
‘cminUronY NeoLIGeNce — QUESTION FOR
Tune
‘A servant, whose injuries resulted from the
falling of a belt, opened by a bele repatrer whom
the servant was employe to assist, held ‘mot
fiusy of cantsbucory sesligenceas's matter of
4 Master Axo Servant @=286(10)—Neoust-
grace or Suvtntirenosse QUESTION FOR
‘Whether the injury to a helper was due to
the negligence ot the hele fepuirer Nio-apsnet
the ends of a Delt, causing Wt to Tall aud knoe,
over a loose radiator auto plaintifs foot, held
hry question
Appeal from Supreme Courk, Appellate
Division, Fourth Department.
‘Action bs Bernhardt Guirizinskt_ against
the American Kndiator Company. Front a
judgment of the Appellate Division (167 App.
Diy. 988, 162 N. ¥. Supp. 1129) alfirmlng a
Judgment of the trial terin in favor of de-
fendunt aismissing the complaint, plaintite
appeals, “Reversed and new trial granted
Hamilton Ward, of Buffalo, for appettant.
Herbert W, Huntington, of Buttato, for re
spondent.
POUND, J. ‘This is an action under the
employers’ liability provisions of the Labor
Law, as amended in 1910.
Plaintif€ was employed by defendant in its
factory as helper to Kincewiez, a belt repate-
er. TE was his duty to hand Kineewiea bis
tcols as called for and aid him as he was
directed. AE the time of the aceldeut Kin
‘cowie was at work with plaintif taking
‘down a bell whieh had become loose, in order
to shorten it. ‘The belt was about 90 feet
Tong aud a foot wide and weighed about 300
pounds, It passed around two pulleys about
45 feet apact, which were about 7 feet from
the floor. ‘The ends of the belt were joined
by being lapped over and stuck together with
fish glue. In onder to open it, Kincewiez
‘was prying apart the laps with a tool similar
toa serewdriver, When the work was about
threequarters done he wanted a larger toot
whieh was lying on the floor near by, and
told plaintif® to get sS. He Kept on opening
the belt. ‘Phat made the belt fall. A radiator
weighing about 300 pounds stood near. Piles
fof radiators were standing under the belt
When the belt fell 1 struck the radiator and
tipped it over pon plaintif’s foot, causing
the injury for which the action was brought,
‘The trial Judge directed a verdict in favor of
the defendant. Judgment entered thereou
was alfirmed by the Appellate Division,
(1 Kincewiet was Intrusted with author-
ity to direct, control, and command plaintit
in the performance of his duty, and the de-
fendant is lable for injuries caused by his
negligence in a detail of the work. not merely
by his negligence in directing plaintift. Ta-
bor Law (Consol. Laws, ¢. 31) § 200; Marion
‘Grav other cases ace same topic and KEY-NUNBER To al
Sarabered Digests aad Tadexes