Wipo, Inc. v. Cook

• Decision Date: 28 April 1988
• Docket Number: No. 76139,76139
• Parties: WIPO, INC. v. COOK.
• Court: Georgia Court of Appeals

Page 306

369 S.E.2d 306

187 Ga.App. 7

WIPO, INC. v. COOK.

No. 76139.

Court of Appeals of Georgia.

April 28, 1988.

Ronald C. Harrison, Patrick J. Gibbs, Roswell, for appellant.

C. Ray Griffith, Atlanta, for appellee.

SOGNIER, Judge.

John Cook brought an action against A.J. Textiles, Inc. (A.J.) and Wipo, Inc. to recover commissions claimed under a sales representation agreement. The jury returned a verdict in favor of Cook against Wipo, Inc. for $10,000. After denial of its motion for judgment n.o.v., Wipo, Inc. appeals.

1. Appellant contends the trial court erred by denying its motion for judgment n.o.v. because appellee failed to carry his burden of proving damages, and there was no evidence before the jury from which it could properly calculate damages.

The record reveals that in 1982, appellant, a company manufacturing and selling industrial toweling products, formed A.J. as a subsidiary corporation to sell certain linen goods for medical and hospital use. In July 1982 appellee entered into a sales representation agreement with A.J. which provided that he would be its exclusive sales representative and that "[c]ommission will be paid at the rate previously established. Commissions are not considered final until invoice is paid. However, commissions is [sic] credited at the time of invoicing and will be based on the selling price received by the Company." The agreement further provided that it was terminable by either party upon 30 days written notice to the other party, and that "[u]pon termination notice, commission will be paid on collection of accounts." In December 1985 appellee was given such a 30-day notice of termination by A.J. and it is undisputed that at that time, appellee agreed he would solicit no more orders. Appellee testified at trial he had $450,000 in outstanding orders as of the date of the termination of his employment with A.J. However, when asked on cross-examination: "Do you have any evidence today of this $450,000 dollars that you say was shipped that has been paid to A.J.," appellee answered "[n]o, sir, I don't.... I have no way of knowing whether they've been paid or not. I feel that they have been."

"[T]he standards for granting a motion for judgment n.o.v. are the same as those governing the direction of a verdict. [Cit.] 'Thus, the motion for judgment n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make a "one-way" verdict proper, judgment n.o.v. should not be awarded....' " Church's Fried Chicken v. Lewis, 150 Ga.App. 154, 159(1), 256 S.E.2d 916 (1979). Although appellee's testimony and that of Arwood Begor,...