## Facts

- Industrial America, Inc. (Industrial America) acted as a business broker for B‑H, Inc. (Bush Hog) in seeking a merger partner.
- Fulton Industries, Inc. (Fulton) ran a newspaper advertisement seeking acquisitions/mergers and stating “Brokers fully protected.”
- Industrial America contacted Fulton in response to the advertisement, identified Bush Hog as a candidate, and relayed mutual interest between the companies.
- Fulton then contacted Bush Hog directly, arranged meetings without Industrial America, and proceeded with negotiations that culminated in a merger.
- Industrial America claimed it was the procuring cause of the merger and that Fulton’s “brokers fully protected” language promised to ensure payment of Industrial America’s commission if a deal resulted from its submission.
- After procedural developments and remand, the case was tried to a jury on (1) whether Industrial America was the procuring cause as to Bush Hog and (2) whether the advertisement created a guaranty obligation running from Fulton (and its successor, Allied Products Corp.) to Industrial America.
- The jury returned a special verdict awarding Industrial America $125,000 against Bush Hog, but judgment was entered for Fulton/Allied based on the trial court’s handling of the special interrogatories and resulting judgment.

## Issues

1. Whether the evidence supported the jury’s finding that Industrial America was the procuring cause of the Bush Hog–Fulton merger, entitling it to a commission from Bush Hog.
2. Whether “Brokers fully protected,” as used in Fulton’s advertisement and understood in the industrial brokerage trade, could constitute an offer of guaranty to pay any commission owed by Bush Hog if a transaction was consummated from the broker’s submission, and whether Industrial America accepted by performance.
3. Whether the trial court properly entered judgment for Fulton/Allied notwithstanding the jury’s special findings concerning the meaning and effect of the advertisement.

## Decision

- The court affirmed the judgment against Bush Hog for $125,000, upholding the jury’s procuring-cause finding.
- The court reversed the judgment for Fulton and Allied.
- The court held the evidence permitted the jury to find that “Brokers fully protected” communicated an offer of guaranty to knowledgeable industrial brokers.
- The court held Industrial America accepted the offer by performance when it submitted Bush Hog and set in motion negotiations that culminated in the merger.
- The case was remanded for entry of judgment consistent with liability on the guaranty theory reflected in the jury’s special verdict.

## Legal Principles

- Contract formation turns on objective manifestations of assent, not undisclosed subjective intent.
- An advertisement directed to a defined professional audience may constitute an offer when its language, in context, reasonably conveys a commitment intended to induce performance.
- A unilateral offer may be accepted by full performance; the promisor may be bound once the requested performance is rendered, even if the offeree’s motive was not solely to accept the offer.
- Industry usage and expert evidence may inform the meaning of specialized phrases and whether they convey enforceable obligations, including a guaranty.
- A broker may recover a commission as the procuring cause when the broker initiates the chain of events leading to a consummated transaction, even if the broker is excluded from later negotiations.

## Conclusion

The Delaware Supreme Court affirmed a commission award against the target company based on procuring cause and held that “brokers fully protected” could be found by a jury to be an enforceable guaranty offer to industrial brokers, accepted by the broker’s performance in supplying the merger candidate that led to the completed deal.


Industrial Am., Inc. v. Fulton Indus., Inc., 285 A.2d 412 (Del. 1971)