The opinion of the court was delivered by: BRIEANT
By a general verdict, amplified and supplemented by the answers to Special Interrogatories, the jury in this diversity case on January 26, 1976 found that plaintiff's corporate predecessor, Prudential Oil Corporation (Connecticut), acting through Messrs. Shippee, Willey and Young, developed and owned a legally protected business concept, as defined in the Court's instructions, relating to the establishment of a petrochemical core facility in Puerto Rico; that Phillips obtained disclosure of this legally protected business concept as a result of a relationship of trust and confidence with plaintiff's predecessor; that Prudential disclosed its concept to Phillips or made a contribution of ideas or services relating to the development of those ideas as a result of a contract implied in fact; and that Phillips used Prudential's legally protected business concept or contribution of ideas or services relating to the development of those ideas of Prudential Connecticut in the petrochemical core facility actually constructed by Phillips in Puerto Rico, or in an application or presentation necessary to effect its construction.
The jury then awarded damages in the amount of $1,500,000.00 and advised further that the tortious misappropriation or the taking of the ideas pursuant to a contract implied in fact, occurred on December 16, 1963.
By motion filed February 17, 1976, defendant moves for judgment notwithstanding the verdict. Its contentions are dealt with separately below.
Defendant first contends that a contract implied in fact was not shown to exist by the required standard of proof which, resolving all matters of credibility and weight, favorably to plaintiff, would permit any juror reasonably so to conclude.
The parties have tried the case in accordance with the substantive law of New York, and there are sufficient contacts with New York to justify such a choice of law. In New York, when something of value is tendered by one party to another for evaluation, looking towards a mutually beneficial commercial agreement, and the second party accepts, takes and uses what is tendered, without reaching an express agreement, a contract implied in fact may be said to arise. Robbins v. Frank Cooper Associates, 19 A.D.2d 242, 241 N.Y.S.2d 259 (1st Dept. 1963), rev'd. on other grounds, but rule approved, 14 N.Y.2d 913, 252 N.Y.S.2d 318, 200 N.E.2d 860 (1964); American TCP Corp. v. Strauss Stores Corp., 206 Misc. 1017, 136 N.Y.S.2d 76 (N.Y.Co.Sup.1954), aff'd. 285 App.Div. 1132, 140 N.Y.S.2d 884; Restatement, Restitution, § 107(2).
There is ample evidence here to support a conclusion that Prudential's principals delivered their work product to Phillips, anticipating an agreement to enter upon a joint venture. No such joint venture agreement was ever made by Phillips. Having failed to enter into a joint venture, as was its right, Phillips became liable in quantum meruit, or pursuant to a contract implied in fact, for the value of what it took and used.
Indeed, depending on the circumstances, almost any taking of a legally protected concept, following business negotiations between the owner of the concept and the taker, can justify a jury finding of a contract implied in fact. This is so because the presumption is in favor of innocence and against the existence of fraud. This presumption against fraud, although not comprised within the instructions given our trial jury, is particularly strong. See Richards v. Kaskel, 40 A.D.2d 804, 338 N.Y.S.2d 279, 281 (1st Dept. 1972) and cases therein cited. It justifies a finding of a contract implied in fact, rather than a finding of tortious wrongdoing, to the extent that Phillips' access to the concept was through Phillips' employee Fischbeck.
This jury verdict will not be voided now at defendant's behest, simply because of any theoretical inconsistency between a contract implied in fact, and a tortious misappropriation of the legally protected business concept.
This is so because no objection was taken on this ground to the form of special interrogatory submitted to the jury. See transcript p. 2199, et seq. where defendant requested other changes in the form of interrogatories to the jury, culminating with the following (Tr. p. 2205):
THE COURT: "The purpose of the interrogatories primarily is to protect everyone's interests, including the Court, so we will know how the jury got there. If you all wanted to take a general verdict, ...