A promise may be lacking within a contract, and yet the whole writing may be instinct with an obligation, imperfectly expressed. If that is so, there is a contract.
Defendant is a "creator of fashions" whose favor helps a sale, and manufacturers of feminine apparel are willing to pay for a certificate of her approval. She entered into an agreement with plaintiff employing him to turn this vogue into money. He was to have, for the term of one year, and thereafter unless terminated by a written notice, the exclusive right, subject to her approval, to place her indorsements on the designs of others and in return she was to have one-half of all profits and revenues derived from any contract he might make. Plaintiff claims that he kept the contract and that the defendant broke it, by placing her indorsement on articles without his knowledge and withholding the profits, and sues her for the damages. Defendant demurs to the complaint on the ground that the agreement lacks the elements of a contract in that plaintiff does not bind himself to anything.
Is there mutuality in the contract?
The Court held that upon examination of the contract, although plaintiff does not promise in express terms, such a promise is fairly implied. Defendant gave an exclusive privilege and plaintiff's promise to pay 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, and, hence, the demurrer cannot be sustained.