Plaintiff
was a corporation operating a department store in Boston, and
defendant was a corporation engaged in publishing and selling
sheet music. On or about August 30, 1904, defendant, then
doing business under the name of Shapiro, Remick & Co.
contracted with plaintiff in writing to place its goods and
fixtures in plaintiff's store and maintain the music
department in conformity to the terms of the agreement. The
agreement referred to was as follows:
'This
agreement, made and entered into this thirtieth day of
August, A. D. 1904, by and between R. H. White Company, a
corporation located at Boston, Massachusetts, party of the
first part, and Shapiro, Remick & Co., a corporation of the
state of New York with its principal business and executive
offices located at Detroit, Michigan, party of the second
part, witnesseth:
'First.
Party of the first part for and in consideration of the
sums of money hereinafter agreed to be paid, and further in
consideration of the stipulations, conditions and
agreements to be kept and performed by party of the second
part, as hereinafter set forth, does hereby give and grant
unto party of the second part the exclusive license and
privilege of selling and dealing in sheet music, and for no
other purposes, within the premises of R. H. White Company
in the city of Boston, for a period of two years from and
after October 1, 1904, unless terminated as hereinafter
provided; the location to be assigned to party of the
second part upon the balcony floor of the building of party
of the first part, such space to be substantially forty
feet in length.
'Second.
Party of the second part shall turn in to the cashier of
party of the first part, directly or through the pneumatic
tube system now in use and operation in the building of
party of the first part, cash from all sales as fast as
received by party of the second part, its agents or
employés, in its business aforesaid; and party of the first
part shall pay over to party of the second part on the 5th
day of each month the receipts for the preceding month. No
charge shall be made by party of the first part for
services of its cashier or accounting department in
handling said funds.
'Third.
Party of the second part agrees that it will make all
purchases of stock for said business, and all contracts for
services of its employés, and other contracts involving
obligations upon its part, in its own name, and it is
specifically agreed that by virtue of this contract, party of
the second part acquires no right or authority whatever to
make purchases or enter into any contract whatsoever in the
name of the party of the first part, or to bind party of the
first part by any contracts whatsoever. It is, however
further agreed that in the sale of sheet music, as herein
provided, party of the second part shall use the name of
'R. H. White Company Music Department' only and in
advertising sales of such goods shall use the advertising
trade-mark of party of the first part exclusively; and that
no other name, word or trade-mark shall be used by it in that
connection. Party of the second part further agrees that
after the termination of this contract it will not thereafter
in any wise make any use of the name of R. H. White Company
or its trade-marks.
'Fourth.
Party of the second part agrees to expend in newspaper
advertising in the city of Boston, Massachusetts, for such
music department, an amount at least equal to five per cent.
(5%) of the gross amount of its sales.
'Fifth.
Party of the second part agrees to place its merchandise in
the store of the party of the first part without cost or
expense to party of the first part for freight or drayage
thereon; to keep the same at all times insured; to pay its
ratable proportion of any license fees which may be required
for conducting business in said space; and to pay all taxes
which may be assessed against its stock of goods, including
its proportionate share of taxes assessed upon the stock of
goods of party of the first part, provided said goods of
party of the second part shall be included in said
assessment.
'Sixth.
Party of the second part agrees to mark all its goods in
plain selling figures; that it and its employés will and
shall in all respects conform to the rules and regulations of
party of the first part made for the government of its
employés, and for the conduct of its business, and that it
and its employés shall and will abide by all rules which may
in the future be established by party of the first part
therefor. Party of the second part also agrees that in case
any of its agents or employés fail to satisfy party of the
first part, said party of the first part shall discharge such
agent or employé. In case of the dissatisfaction of any
customer of the music department, as aforesaid, party of the
first part shall have the right, under this contract, in its
judgment, to satisfy such customer, and any expense which may
be found necessary to that end, party of the first part is
authorized to charge against party of the second part, and to
deduct the same from the amounts to be turned over to party
of the second part under this contract.
'Seventh.
The receiving clerks of party of the first part shall
receive, during the continuance of this contract, all freight
of party of the second part for its use without charge for
their services in so doing.
'Eighth.
Party of the second part shall furnish its own fixtures in
the space alotted to it for the transaction of its business,
which fixtures shall conform in general style, height and
appearance with the other fixtures on said balcony.
'Ninth.
Party of the second part hereby agrees, in consideration of
the premises and of the rights and privileges hereby granted,
to pay to party of the first part a minimum rental of three
thousand dollars ($3,000.00) per year in equal monthly
installments of two hundred and fifty dollars ($250.00) each
in advance on the 1st of each month, commencing October 1,
1904. It is further agreed that if the said sum of three
thousand dollars should be less than an amount equal to
fifteen per cent. (15%) of the gross sales of said music
department, that party of the second part shall pay to party
of the first part, in addition to the sum of three thousand
dollars ($3,000.00) as aforesaid, an amount equal to the
difference between said sum of three thousand dollars and
fifteen per cent. of the gross sales, as aforesaid; the gross
sales shall be computed and settlement made in accordance
with this agreement on March 30, 1905, September 30, 1905,
March 30, 1906, and September 30, 1906.
'Tenth.
Party of the first part shall not be liable to party of the
second part for any damage done or caused by plumbing, water,
gas, or steam pipes of any kind or nature, or by the
bursting, leaking or running of any waste stand or waste
water in or about said place, or any part thereof, nor from
any damage arising from the neglect of any occupants of said
building, nor from any damage or loss of goods arising from
the use of elevators of party of the first part, provided due
care and precaution shall be taken by party of the first
part.
'Eleventh.
In case of the bankruptcy or insolvency of party of the
second part, or of its failing to meet and pay its
obligations as the same mature, this contract shall cease and
terminate, and party of the second part or its assignees
shall remove the stock on hand within thirty days' time
after notice by party of the first part. In case of default
in the removal of said stock, as aforesaid, party of the
first part is authorized to take possession of the space
allotted to second party for said business without legal
proceedings, and to remove the said property to a safe place
for the benefit of its owners.
'Twelfth.
It is further agreed that in the event of partial destruction
by fire, the elements, or the act of God, of the premises
aforesaid, or that portion thereof occupied by party of the
second part, hereunder, so that party of the second part
shall be unable to occupy the same for its said business
then the further payment of money or remuneration by party of
the second part to party of the first part shall cease from
the date of such partial destruction until the premises
occupied by party of the second part are repaired and
restored. In the event of the total destruction of said
premises by fire, the elements, or the act of God, or that
portion thereof in which said...
