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 TnderesNX) 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