"This agreement made and entered into in duplicate this fourth day of November, A. D., 1913, by and between Foley Bros. Dry Goods Company, a corporation organized and existing under the laws of the state of Texas, and doing business in the city of Houston, lessor, and Ogus, Rabinovich & Ogus Company, a corporation, organized and existing under the laws of the state of Illinois, lessee, witnesseth:
"(1) The said lessor has this date demised and leased to the lessee and given it the sole and exclusive privilege for the purpose of conducting therein a department for the sale at retail of ladies', misses' and children's millinery and all its by-products a space of about square feet on the second floor of its building in the as per blueprint attached hereto and marked `Exhibit A' and additional space for workroom and stockroom on third floor, as per blueprint attached hereto and marked `Exhibit B'; provided lessors reserve the right to sell baby caps, velvet, ribbons, ornaments and other merchandise as is now usually and customarily sold in other departments of their store.
"(2) In addition to the premises hereby leased, the said lessee shall also have the right to use a space of at least ten (10) feet window frontage on Main street for displaying its wares and shall also have the right to display hats on models and figures in all of the show windows at the discretion and direction of the lessor.
"(3) The term of this lease shall be for a period of five (5) years beginning January 1st, 1914, and ending December 31st, 1918.
"(4) The lessee in consideration of the premises hereby leased, agrees to pay to the lessor an amount equal to fifteen (15) per cent. on all net sales made by the lessee on above premises, and further agrees that the minimum rental so paid to the lessor shall be no less than ten thousand five hundred ($10,500.00) dollars per annum, payable in twelve (12) equal monthly installments. Should the business of the lessee during any fiscal year exceed the sum of seventy thousand ($70,000.00) dollars the lessee agrees to pay the lessor fifteen (15) per cent. on all such business above seventy thousand ($70,000.00) dollars which shall be deducted by the lessor in the monthly settlement whenever such sales shall have reached said sum of $70,000.00 during any one year.
"(5) The lessee further agrees that it will advertise its goods to the extent of at least four (4%) per cent. of its sales during each fiscal year, and during the entire time and term of this agreement. All advertising by the lessee of its wares and merchandise shall be made under the name of the lessor only. The lessee shall be chargeable with and pay monthly for all its advertising at absolute net cost to the lessor. When advertising jointly with lessor, the lessee will pay its pro rata share of head lines. Lessee shall pay its proportionate share on special advertising contracts, such as premium stamps, refunded railroad fare to customers, newspaper contests, etc., that may be entered into by lessor.
"(6) The lessor further shall provide all the necessary lighting for the proper conduct of the business of the lessee, also furnish all lights for window display, show cases, workrooms and stockrooms.
"(7) The lessor shall furnish heat and elevator service, freight and passenger, for the premises hereby leased to the lessee in the proper manner, and suitable for the conducting of the business of lessee, as same is now furnished, but in the event there shall be any breakage or any other cause for which said lessor is not responsible, whereby such heat or elevator service cannot be furnished, such failure to furnish heat or elevator service shall not operate as a breach of this contract, or render the lessor liable in damages to the lessee.
"(8) It is further understood between the parties hereto that in case of any controversy between lessee or its employees with customers, such controversies shall be referred at once to said lessor, or its officers, whose decision in the premises shall be final, and that under this provision, the lessor is authorized by lessee to refund money or to make allowances to customers of lessee, and to adjust the aforesaid controversies in any reasonable manner.
"(9) The lessee agrees that its employees shall abide by and conform to the rules and regulations which may from time to time be fixed and established by the lessor for the government of its own employees, and the said lessee shall not at any time make any rules or regulations for its employees which shall be in conflict with the rules and regulations of the lessor.
"(10) Said lessor further agrees to furnish janitor and porter service to maintain the premises hereby leased in proper and first class form, shape and condition.
"(11) The lessor agrees to furnish and pay for all water to be used by said lessee for the proper conduct of its business.
"(12) The lessor shall receive all merchandise sent by freight or consigned to the said lessee, provided such merchandise indicates by its marks that it is intended for the lessee. It is understood, however, that the lessee shall pay all of the freight, express and drayage charges on said merchandise.
"(13) The lessor agrees to provide the lessee without extra charge therefor, wrapping and tissue paper and twine, sales checks in triplicate, all printed forms used by lessor in its other departments, all stationery, telephone service, advertising service, window trimmer service, wrapping girls and cashier, but all
boxes, paper bags and out of town telephone calls shall be provided by the lessee at its own expense. The location of the wrapping station and cashier's desk to be situated in the millinery department or in some other convenient part of lessor's store, at lessor's discretion.
"(14) The lessee shall employ its own assistants and clerks, at its own expense and under its own contract, except wrapping girls and cashier, as provided in paragraph thirteen, above.
"(15) Said lessor shall deliver free of charge all wares and merchandise sold to customers by the lessee, in Houston or its suburbs where the general city deliveries of lessor now reach. All parcel post charges and express charges on sales made by lessee shall be paid by lessee.
"(16) Each of the parties hereto shall at all times use its best efforts to further the interest of the other party, and will endeavor, so far as it can, to have its employees work to this end.
"(17) The time for opening and closing the business carried on as herein contemplated, shall be controlled by the rules and regulations of the said lessor, and the giving out and control of the keys shall be governed exclusively by the said lessor.
"(18) The business of which this contract is the subject shall be conducted under the name and style of the lessor. The lessee agrees that it will advertise its business only under the name of Foley Bros. Dry Goods Company and that all signs placed in said building of lessor shall bear the name of Foley Bros. Dry Goods Company, only, that all bills for goods sold shall be issued in the name of the lessor only, and all wrapping paper, boxes and paper bags shall bear the name of the lessor only, and none other, and all communications of every kind addressed to customers shall be in the name of Foley Bros. Dry Goods Company, and none other.
"(19) All charge sales must be approved by lessor at its discretion and treated as a cash sale for the purpose of settlement with lessee.
"(20) All the moneys received by the lessee in the sale of its merchandise shall be paid at the time of sale to the cashier of lessor, who shall keep a full, true and complete record, open and available to lessee of all such receipts. The lessor agrees to disburse by voucher of lessee only, or lessee's properly appointed executive, all expenses necessary for the conduct of the business of the lessee, and lessor, upon deducting all such disbursements and the one-twelfth (1/12) part of the said sum of ten thousand five hundred ($10,500.00) dollars for rent and the percentage of sales, if any, above the sum of $70,000.00 for any one year and all other expenses, shall pay to the lessee at Houston, Texas, the remaining balance, on or before the fifteenth (15th) day of each month for all sales made during the preceding month. Settlement to be made either in New York or Chicago exchange.
"(21) It is understood and agreed between the parties hereto that all personal property upon said premises belonging to the said lessee shall be at the risk of the lessee, and lessor shall not be liable to the lessee for any loss or damage to any of the personal property, or damage to any person or persons on or about the premises, ordinary care excepted, and the said lessee agrees to hold the said lessor harmless of any claim that may be made by any person by reason of any act or acts of the lessee, its agents or employees.
"(22) The...
