Emerson Phonograph Co. v. Waterson

Headnote

Emerson Phonograph Co., Inc., v. Waterson, 183 App. Div. 386 , affirmed.

Appeal from a judgment entered June 4,1918, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint, which alleged an oral contract between plaintiff’s assignor, Emerson, and the defendant under the terms whereof the defendant agreed that in the event that said Emerson should assist the defendant in procuring a contract to be entered into between the defendant and the American Graphophone Company, a corporation, for the exclusive selling agency of so-called “ Little Wonder ” phonograph records, the defendant would pay to said Emerson one-half of the net profits in any manner resulting to the defendant from or by reason of said contract, whether from the sale of said “ Little Wonder ” records, or otherwise, the defendant to pay

royalties not to exceed one-half cent per record in connection therewith. The complaint further alleged that Emerson did assist the defendant to procure the contract with the Graphophone Company; that between the date of said contract and the date of the commencement of this action the defendant had realized net profits in the sum of $200,000; that Emerson had assigned his interest to the plaintiff; that Emerson had performed on his part; that the defendant had failed and refused to pay over to the plaintiff its share of the profits, with the exception of $1,750, and that the plaintiff was entitled to judgment in the' sum of $100,000. The answer consisted of a .general denial. The Appellate Division held that no valid, definite or mutual contract had been established.