discharge of its obligations under the representation
agreement. Accordingly, the first cause of action of the
complaint is dismissed for failure of proof.
Brasport identified Coafi as a company for which commissions
for sales ($12,600) was due from Celanese. The evidence at
trial, however, showed that Celbras, through Edward Weber and
Joao Hercoles, and Brasport, through Fabbri, entered into an
oral agreement pursuant to which Brasport agreed to waive its
right to receive commissions on the Coafi sales. Coafi was a
new customer, and the agreement was reached because the
promotional sales price was set so low. This agreement was
shown in the export permits which were required to be filed
with the Brazilian government and which were introduced into
evidence through the testimony of Dr. Juan Paulo Camargo De
Toledo, general counsel for Celbras. His testimony was not
challenged on this issue.
Celbras was Celanese's agent and affiliate in respect of
most sales of Celanese products covered by the representation
agreement. Plaintiff cannot claim that Celbras could not make
such an agreement with Brasport because it was not a party to
the representation agreement. As defendants point out in their
brief, such a claim would undermine the sole basis for
plaintiff's contention that Celanese bears responsibility for
Brasport's hiring of Fabbri and its resultant woes. The record
is clear that plaintiff claims through Goldlust's testimony
that Bruno Beer and Edward Weber, both officials of Celbras,
recommended Fabbri to him at a meeting in Sao Paulo.
Apparently in pre-trial testimony he had placed Whittall at
the meeting. Whittall has denied being present and at trial
Goldlust stated that he was no longer certain of Whittall's
presence at the Sao Paulo meeting when the Celanese people
spoke to him about Fabbri. Thus the only link from Celanese to
Brasport's hiring of Fabbri is Celbras. Plaintiff cannot
contend that Celbras' recommendation is binding on Celanese in
respect of the hiring of Fabbri, but that Celbras cannot act
for Celanese to bind Brasport and Celanese to a waiver of
commissions in a special case. The oral agreement to waive the
Coafi commissions was valid and no commissions from Celanese
for the Coafi promotional sales are owed to Brasport.
Whittall testified that Fabbri told him that he had
appropriated Brasport's bearer government bonds. Whittall
never reported this conversation to Brasport. Fabbri left a
receipt for the bonds in Brasport's safe and the receipt was
introduced at trial. Fabbri told Whittall that he was taking
the bonds to protect himself against the failure of Brasport
to pay him all that was due, and that he had advised Brasport
that he had taken the bonds. The evidence is clear that
Brasport had knowledge of the taking, and Whittall was under
no obligation to report to Brasport his conversation with
Plaintiff, as can be inferred from the above discussion, has
provided no evidence to justify an award of punitive damages.
Defendants assert that plaintiff failed to honor its
obligations to provide defendants with documents in its
possession when defendants made various discovery requests.
Felix Bachman provided plaintiff with an affidavit concerning
the events about which he testified at trial, but the
affidavit was not furnished to defendants until March, 1990,
although the affidavit is dated December 28, 1989. Bachman
also testified that he provided plaintiff with documents in
early 1988 relating to matters about which he testified at
trial, but these documents were not given to defendants until
the eve of trial. He testified that he wrote a report on the
matter which he gave to plaintiff in 1988. The report was
never given to the defendants.
Defendants requested the production of all documents
generated by Montero, Nunez & Associates relating to review or
analysis of Brasport's financial statements. That firm was
engaged and provided with books and records which they
analyzed, thereby determining that certain records were
missing, but none of the records examined were produced.
Miquel Angel Dequi, executive director of Brasport since
April 27, 1987, and the person in charge of the investigation
of Fabbri's activities undertaken by Brasport, testified that
there were 12 ledgers which recorded all of Brasport's
financial transactions, but none of these were supplied to
defendants. The evidence seems to support defendants' claims
on this issue. However, the matter need not be pursued since
the court finds defendants entitled to judgment on the merits.
In sum, all plaintiff's claims are dismissed and judgment is
IT IS SO ORDERED.
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