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! It k f N. 11 The terms of plaintiff's contract There is no dispute that plaintiff and defendant entered into a contract for promotional services; the only dis- pute is what the exact terms of that agreement were (744). Plaintiff was retained in June 1970 at a salary of $6,000 per month to study the Kent brand's problems and come up with ideas for sales promotions-(52-5;5 141-43, 484). I)efendant's product manager admitted that it was always plaintiff's understanding of their arrangement that the $6,000 per month covered only idea creation, and that any art or production work on ideas approved by defendant was to be paid for separately (488, 55-57). Plaintiff's president testified that the agreement further provided that if defendant accepted any of plaintiff's ideas, plaintiff had the exclusive right to perform and be paid for the camera-ready art work (involving typesetting, finished photoaraphy and illustrations) and the right to bid on the production of the display items such as dis- play boxes, banners, brochures and the like (55-57). De- fendant had the right to determine in good faith whose production bid to accept, based upon a combina`-'on of price and quality of work (193-95). lf plaintiff lost the production bid on its promotion idea it was instead to receive a commission equal to 15% of the amount of the successful bidder's price (159, 194-95), which is a standard provision in plaintiff's contracts with other companies (20S). Finally, plaintiff was to receive a commission of 25% of the total cost of any goods or services purchased by plaintiff for defendant for any promotion originated by plaintiff (64, 210-11). Early in the course of the parties' relationship, plain- tiff's president set out the terms on the basis of which lie proposed to work for defendant in a letter of confirmation to defendant's manaaer, Guberman (SG1). All of the terms .. Vr ^I W

er. 12 testified to by plaintiff other than the standard 15% com- mission on production work are specifically set forth in that letter (861). No one at Lorillard ever protested that its terms were incorrect; no one ever wrote back that that was not their understanding of their agreement (65, 548-49). There can be no doubt of the parties' agreement on a 25% commission on the price of outside sercices, such as those of the Blue Ribbon judging firm. Plaintiff unde- niably billed and was paid exactly 25% of the original $4,000 judging fee and the supplemental $12,000 fee paid to Blue Ribbon (251-53, 112-13). The total amount paid Blue Ribbon by defendant came to exactly $16,750. The jury had before it plaintiff's paid invoice to defendant for exactly 25 Jo-$4,187.50-of that amount. That invoice spe- cifies only that it is f or "commission", and nowhere men- tions supervision or any other work (807-08, 942). Regarding the 15% alternative commission on produc- tion bids lost by plaintiff, defendant's vice president, Bres- nahan (who had worked for plaintiff), had to admit that this commission was standard in plaintiff's promotion con- tracts with its other important clients (514-16). There was no reason why it should have been excluded from this contract. ,. That was some of the evidence that the jury had before it when it arrived at its verdict-evidence that defendant saw fit to omit from its brief's discussion of the facts. Based on this evidence-and on the further evidence cast- ing serious doubt on the credibility of defendant's wit- nesses, discussed in the argument points, in f ra-the jury was fully justified in its award to plaintiff. f -1 0