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No. 119219
| Quality
Products and Concepts Company, |
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Stephen
K. Valentine (248) 851-3010 |
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Plaintiff-Appellee,
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| vs (Appeal
from Ct of Appeals) |
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(Wayne
-- Zahra, J.)
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| Nagel Precision, Inc., |
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Richard J. Landau (734) 214-7669 |
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Defendant-Appellant.
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Plaintiff-Appellee's Brief on Appeal>>
Defendant-Appellant's Brief on Appeal>>
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Background
Plaintiff Quality Products and its principal, Kenneth Barton, entered
into a contract with Nagel Precision in 1993. The contact expressly
stated that Quality Products would not receive commissions for sales
to machine tool suppliers. However, Barton did have contact with two
machine tool suppliers in 1994, and he sought commissions from Nagel
Precision for one supplier's order. The plaintiff claims that Nagel
Precision was aware of his activities with the two suppliers, but remained
silent. Nagel Precision's CEO disputes this, stating that he told Barton
that Nagel Precision would not pay commission on sales to the two suppliers.
The plaintiff filed suit in Wayne County Circuit Court. Nagel Precision
moved for summary disposition based on the contract provision excluding
commissions for sales to machine tool suppliers. Judge Brian Zahra,
then on the Wayne County Circuit Court, granted Nagel Precision's motion
and dismissed the suit. He found that the plaintiff had tried to unilaterally
modify the agreement by soliciting sales from suppliers outside his
territory as defined by the contract. While there was evidence that
Nagel Precision was aware of the plaintiff's activities, there was no
evidence that it encouraged the plaintiff or consented to alter the
contract, the judge found. Ultimately, the Court of Appeals reversed
in an unpublished per curiam opinion. The Court of Appeals concluded
that there was sufficient evidence to raise a fact issue whether defendant's
silence in the face of Barton's activity in, and reporting to defendant
concerning, procuring the turnkey business was a waiver of the provision
requiring modification by the parties' agreement in writing. Nagel Precision
appeals.
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