1, 1985 Genica's contract with Holophane was terminated as of November 1, 1985. Plaintiff's Exhibit No. 12.
11. Holophane took reasonable steps to determine whether Genica was entitled to commissions on shipments into the territory from 1980 to 1985. Defendant's Exhibit No. 40. In late 1984, in response to information from Genica that Holophane-Mexico was exporting products into Latin America, Holophane management in Denver asked Holophane-Mexico for an accounting of all such sales. Testimony of Gerald N. Carozza; Plaintiff's Exhibit No. 8; Testimony of David Meredith. Holophane-Mexico reported $34,806 worth of sales to Cinducoll in 1984. Defendant's Exhibit No. 7. Holophane-USA promptly paid Genica commissions of $4,698.81 on these sales, using the 13.5% commission rate. Testimony of David Meredith; Plaintiff's Exhibit No. 8; Defendant's Exhibit No. 7.
12. In 1986, Aage Emanuelsen, the new President of Holophane-Mexico, conducted review of Holophane-Mexico's records including an invoice-by-invoice search for all export sales. Testimony of Aage Emanuelsen. Holophane-Mexico's auditors, a branch of the accounting firm of Coopers & Lybrand, discovered five such invoices for the years 1980 through 1985, including the invoices for the $34,806 worth of sales previously discussed, a freight bill for which commissions are not paid, and one 1982 sale into El Salvador in the amount of $8,098.98. Testimony of Aage Emanuelsen; Testimony of David Meredith; Defendant's Exhibits Nos. 26, 32, 37, 38.
13. The search conducted by Holophane-USA included a review, by computer, of all sales into Latin America by destination and customer and a cross-check of those records against the commission paid to Genica. Holophane-Canada and Holophane-England also produced invoices of their sales into Latin America. Testimony of David Meredith; Testimony of Elsie Madsen; Defendant's Exhibit No. 40. This review produced only two instances where Genica had not been paid commissions -- a sale from Holophane-USA in the amount of $12,036 and a sale from Holophane-Canada in the amount of $2,589.18 (American dollars). Testimony of Elsie Madsen. Defendant's Exhibits No's. 36, 39. Based on this evidence, the total amount of commissions due Genica is $1,923.22. Testimony of Elsie Madsen. Since each of these sales was made directly from Holophane to the purchaser, they are not sales in which Genica was entitled to a mark-up. Defendant's Exhibits No's. 36, 37, 39.
14. Plaintiff had access to all relevant data through discovery. I twice extended the original period set for discovery. Plaintiff did not request or move for any additional discovery.
15. I credit the testimony of David Meredith and Elsie Madsen as to the thoroughness of the searches and of Aage Emanuelsen that defendant's Mexican subsidiary did not make unaccounted sales to Genica's territory from 1980 to 1985.
16. On January 2, 1987, default judgment was entered for Holophane against Genica on Holophane's counterclaim in the amount of $29,757.56.
Conclusions of Law
1. To recover for breach of contract -- here, the alleged unpaid commissions, Genica has the burden of proving all essential elements of the cause of action, including proof of damages. To satisfy this burden, Genica must provide sufficient evidence that allows the Court to determine the damage amount with reasonable certainty. William B. Tanner Co. v. WIOU, Inc., 528 F.2d 262 (3d Cir. 1975).
2. The only evidence of any commissions due Genica was the $1,923.23 on sales identified by defendant Holophane. Genica has not put on any evidence of any specific sale that would enable this Court to calculate the amount of commissions due Genica. Accordingly, as a matter of law, Genica has not satisfied its burden of proof on its breach of contract action against Holophane and is therefore not entitled to any commissions in excess of $1,923.23.
3. An accounting should not be used to aide a party who has otherwise failed to satisfy his burden of proof on the damages issue. See Reliable Tire Distributors, Inc. v. Kelly Springfield Tire Co., 607 F. Supp. 361 (E.D. Pa. 1985); Keystone Floor Products Co. v. Beattie Mfg. Co., 432 F. Supp. 869 (E.D. Pa. 1977). Where there is an adequate remedy at law, an accounting -- an equitable remedy -- is not available as a substitute for damages. Dairy Queen, Inc. v. Wood, 369 U.S. 469, 478, 8 L. Ed. 2d 44, 82 S. Ct. 894 (1962). Nor is an accounting in such a case available for Genica to obtain the sales information from Holophane that Genica has had, through discovery, opportunity to obtain. See First Commodity Traders, Inc. v. Heinold Commodities, Inc., 766 F.2d 1007, 1010-11 (7th Cir. 1985) (no accounting where no showing why claims for money were not damages and plaintiff had full access to defendant's business records to discover amount of compensation). There is thus no need for a further accounting.
AND NOW, this 30th day of January, 1987, upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is hereby ORDERED that:
1. Judgment is entered for Genica against Holophane on Genica's Complaint in the amount of $1,923.22.
2. Judgment is entered for Holophane against Genica on Holophane's Counterclaim in the amount of $29,757.56.
3. The parties are to bear their own costs of this proceeding.
MARVIN KATZ, J.
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