Wood v. Lucy, Lady Duff-Gordon
118 N.E. 214 (1917)
Cardozo, J.
The defendant styles herself ‘a creator of fashions.’ Her favor helps a sale. Manufacturers of dresses, millinery, and like articles are glad to pay for a 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 employed the plaintiff to help her to turn this vogue into money. He was to have the exclusive right, subject always to her approval, to place her indorsements on the designs of others. He was also to have the exclusive right to place her own designs on sale, or to license others to market them. In return she was to have one-half of ‘all profits and revenues’ derived from any contracts he might make.
Question
Did Wood explicitly promise to make any contracts, or even to attempt to make any?
(a) Yes
Incorrect. Wood promised Lucy one-half of “all profits and revenues’ derived from any contracts he might make.” That is not to promise—not explicitly by the words used—to make any contracts.
(b) No
Correct. Wood promised Lucy one-half of “all profits and revenues’ derived from any contracts he might make.” That is not to promise—not explicitly by the words used—to make any contracts.
The exclusive right was to last at least one year from April 1, 1915, and thereafter from year to year unless terminated by notice of 90 days. The plaintiff says that he kept the contract on his part, and that the defendant broke it. She placed her indorsement on fabrics, dresses, and millinery without his knowledge, and withheld the profits. He sues her for the damages, and the case comes here on demurrer.
The agreement of employment is signed by both parties. It has a wealth of recitals. The defendant insists, however, that it lacks the elements of a contract. She says that the plaintiff does not bind himself to anything. It is true that he does not promise in so many words that he will use reasonable efforts to place the defendant’s indorsements and market her designs. We think, however, that such a promise is fairly to be implied. The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal. It takes a broader view today. A promise may be lacking, and yet the whole writing may be ‘instinct with an obligation,’ imperfectly expressed (Scott, J., in McCall Co. v. Wright, 133 App. Div. 62,117 N. Y. Supp. 775;Moran v. Standard Oil Co., 211 N. Y. 187, 198,105 N. E. 217). If that is so, there is a contract.
Question
Judge Cardozo’s view is that both parties understood Wood to be promising to make a reasonable effort to make contracts. They just “imperfectly expressed” that promise in the written contract.
a) Yes
Correct. Cardozo clearly thinks the parties understood that Wood was promising to make a reasonable effort to make contracts.
(b) No
Incorrect. Cardozo clearly thinks the parties understood that Wood was promising to make a reasonable effort to make contracts.
The implication of a promise here finds support in many circumstances. The defendant gave an exclusive privilege. She was to have no right for at least a year to place her own indorsements or market her own designs except through the agency of the plaintiff. The acceptance of the exclusive agency was an assumption of its duties. . . Many other terms of the agreement point the same way. We are told at the outset by way of recital that:
‘The said Otis F. Wood possesses a business organization adapted to the placing of such indorsements as the said Lucy, Lady Duff-Gordon, has approved.’
The implication is that the plaintiff’s business organization will be used for the purpose for which it is adapted. But the terms of the defendant’s compensation are even more significant. Her sole compensation for the grant of an exclusive agency is to be one-half of all the profits resulting from the plaintiff’s efforts. Unless he gave his efforts, she could never get anything. Without an implied promise, the transaction cannot have such business ‘efficacy, as both parties must have intended that at all events it should have.’ Bowen, L. J., in the Moorcock, 14 P. D. 64, 68. But the contract does not stop there. The plaintiff goes on to promise that he will account monthly for all moneys received by him, and that he will take out all such patents and copyrights and trade-marks as may in his judgment be necessary to protect the rights and articles affected by the agreement. It is true, of course, as the Appellate Division has said, that if he was under 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 determining the intention of the parties the promise has a value. It helps to enforce the conclusion that the plaintiff had some duties. His promise to pay the defendant one-half of the profits and revenues resulting from the exclusive agency and to render accounts monthly was a promise to use reasonable efforts to bring profits and revenues into existence. . . .
The judgment of the Appellate Division should be reversed, and the order of the Special Term affirmed, with costs in the Appellate Division and in this court.
CUDDEBACK, McLAUGHLIN, and ANDREWS, JJ., concur. HISCOCK, C. J., and CHASE and CRANE, JJ., dissent.
Order reversed, etc.