Skip to main content

Abrahams v. Hygrosol Pharmaceutical Corp.

2009 WL 3055372 (U.S. Dist. Ct. D. N.J. 2009) (Unpublished)

CONTRACTS — A letter sent by one contracting party to the other after a contract has been executed could serve to amend the contract, but only if it confirms that the parties had a post-contract meeting of the minds to make such a change.

A marketer entered into a finders’ agreement with a pharmaceutical company. Under the agreement, the marketer would receive a fee if he introduced a third party to the company and there were profits. Under the Agreement, the marketer had to obtain clearance from the company before approaching any third party. The marketer sent a letter to the company saying he believed he was to be “directly involved in all future negotiations related to the [pharmaceutical technology] … and that there [wa]s no need for [him] to execute a new letter each time [they were] presented with a new opportunity.” Thereafter, the pharmaceutical company assigned its rights to another company. Both companies then entered into a contract with a third company. The marketer took no part in the solicitation. Each company refused to pay a fee to the marketer even though: (a) a former secretary of the second company had a document on her computer stating that the marketer was entitled to compensation “for services rendered”; and (b) the co-founder of the second company expressed some concern that his company might be liable to the marketer. The marketer sued both companies asserting that he was entitled to commissions because the relationship between the marketer and the two companies developed into an exclusive relationship giving him a right to all profits from the third company despite his lack of involvement.

The United States District Court dismissed the marketer’s claims. It took note that the finder’s agreement and the letter were both drafted by the marketer and any ambiguity was to be construed against him. The Court then held that the parties agreed that the original agreement did not create an exclusive relationship. It then noted that the letter, on its face, did not create an exclusive relationship. According to the Court, in order to have a contractual relationship there must be some evidence of a meeting of the minds. The Court further held that the letter written by the marketer after the original contract was executed did not display any such meeting of the minds. Moreover, the fact that one of the principals of the second company was concerned that his company might owe money to the marketer was not enough evidence to indicate that a exclusive relationship had been established. Finally, since the document found on a former employee’s computer stated that the marketer was entitled to compensation for “services rendered,” and no services were, in fact, rendered, the Court rejected the contention that an exclusive relationship existed based on such evidence.

66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 •