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46. What percentage of the actor's earnings is a court most likely to award the agent?
An actor straight out of drama school and an agent entered into a one-year written contract that described the services the agent would provide. Because he was eager for work, the actor agreed, in the contract, to pay the agent 15% of his yearly earnings. At the end of the year, the actor was so pleased with his many roles that he gave the agent 20% of his earnings. After the first contract had expired, the actor and the agent decided to continue working together. They photocopied their old contract, changed the date, and signed it. At the end of the year, a dispute arose as to what percentage of earnings the actor owed. It is a trade practice in the acting profession for actors to pay their agents 10% of their yearly earnings, payable at the end of the year.
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A is incorrect. The generally applicable standard, which provides that evidence of course of dealing is given greater weight than evidence of trade usage, is inapplicable here because a «course of dealing» was never established and because the written contract was explicit. One instance of previous conduct is insufficient to establish a prior course of dealing.
C is incorrect. Evidence of an express term is given greater weight than evidence of trade usage. The parties' new contract adopted the terms of their previous contract, which specifically included the 15% fee. Therefore the express term of 15% controls the amount of the fee to which the agent is entitled.
D is incorrect. The contract contains the essential terms, including the duration, a description of the agent's services, and the method for calculating the agent's fee, 15% of the actor's earnings in this case.