DocketNumber: File No. 1276
Citation Numbers: 466 A.2d 340, 39 Conn. Super. Ct. 430
Judges: PER CURIAM.
Filed Date: 8/5/1983
Status: Precedential
Modified Date: 7/5/2016
The plaintiff instituted this action seeking to recover lost profits on merchandise alleged to have been misdelivered to the defendant and subsequently sold. The plaintiff is a wholesaler to drugstores of miscellaneous sundries. The defendant is also a seller of miscellaneous merchandise purchased in odd lots which it offers for sale at discount prices in its retail *Page 431 stores. In April of 1978, the presidents of both corporations met with representatives from Ketchum Distributors, Inc., which was closing one of its wholesale divisions in Columbus, Ohio.
At the Ohio meeting, the plaintiff and the defendant negotiated the purchase from Ketchum of the division's remaining inventory, valued at approximately $170,000, at 27 percent of the wholesale cost. An arrangement was made whereby the plaintiff's president would draw up a list indicating that portion of the merchandise he desired to buy, which he anticipated would comprise about 10 percent of the inventory. The defendant agreed to purchase the rest. The goods were to be shipped separately to each corporation.
When the plaintiff's goods arrived on May 11, 1978, some of the merchandise was missing. In response to the plaintiff's inquiry, Ketchum stated that the missing items were sent to the defendant by mistake. The plaintiff notified the defendant of this alleged error and sent a letter itemizing the goods claimed to be missing from its shipment. Despite the fact that the shipment was incomplete, the plaintiff paid Ketchum $8726.09 for the entire amount of invoiced goods by a check dated May 17, 1978.
The defendant paid Ketchum $47,919.33 for its invoiced goods by check dated May 19, 1978, prior to receipt of the goods. When the merchandise arrived a month later, the defendant's employees checked the goods as they were unloaded against the items listed on the invoices accompanying the merchandise. According to the defendant, the items received corresponded to those listed on the invoices sent with the goods.
In July, 1978, the plaintiff took orders for the goods bought from Ketchum, including those allegedly misdelivered to the defendant. The plaintiff, however, never received the missing goods from the defendant *Page 432 and was therefore unable to complete their sale. The present suit was brought to recover the profits lost on the orders which the plaintiff was therefore unable to fill. After a trial, the court rendered judgment for the plaintiff, from which the defendant has appealed.
The defendant claims that the plaintiff failed to establish a legal relationship between the parties which would obligate the defendant to pay for any damages suffered by the plaintiff. In its complaint, the plaintiff alleged: (1) that it purchased personal property from the Forchheimer Division of Ketchum, Inc.; (2) that this property was delivered in error to the defendant; (3) that the plaintiff notified the defendant and demanded delivery of the property; (4) but that the defendant refused to return the goods. The cause of action thus pleaded is that of conversion.
"Conversion is usually defined to be an unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner's rights. Moore v. Waterbury Tool Co.,
The invoiced goods paid for by the defendant, however, did not include a batch of candles which was listed by the plaintiff as part of the property missing from its shipment. The documentary evidence submitted by the defendant indicates that the defendant did not receive these goods. The plaintiff's president, however, testified that he saw the candles at the defendant's warehouse when he went there in an attempt to retrieve his missing goods. Where testimony is conflicting the trier may choose to believe one version over the other. Cappiello v. Haselman,
The defendant's remaining claims of error pertain to the issue of damages. The first claim is that the trial court erred in allowing the plaintiff's president to testify regarding purchase orders taken for the resale of the goods in violation of the best evidence rule. The plaintiff's president testified that it was his custom to conduct shows where he displayed samples and pictures of the merchandise to be sold. Customers would then order goods based on these displays. He further testified that at his July, 1978 show, he took orders for all the goods he had purchased from Ketchum, including those he expected to receive from the defendant. Although he could not remember the specific prices he charged, he stated that his minimum sale price for any item would be the wholesale cost plus 10 percent for shipping.
The best evidence rule deals with documentary evidence and requires, absent an adequate explanation as to its whereabouts, the submission of the original document when a party attempts to establish the existence or exact terms and content of that document. State *Page 434
v. Moynahan,
The defendant further claims that the testimony relating to the purchase orders was inadmissible as hearsay. We disagree. The testimony as to statements made by customers was offered solely to prove the acceptance of the plaintiff's offers of goods for sale, and not to prove the actual content of the customers' statements. "Testimony of the contents of an utterance, offered only to prove that it was made, is not hearsay." (Citations omitted.) Gyro Brass Mfg. Corporation v. United Automobile Workers,
The defendant's next claim is that the admission of the testimony regarding the purchase orders violated its constitutional right of cross-examination under the
The defendant also claims that the plaintiff did not prove its damages with reasonable certainty. The plaintiff's cancelled check indicates Ketchum was paid the total amount listed on the master invoice sent with the plaintiff's shipment of goods. This invoice discloses that $172.73 was paid for the candles which amounts to 27 percent of their wholesale cost of $639.74. The *Page 435
testimony of the plaintiff's president as to the resale of the goods at a specified price above its wholesale cost presented a factual issue based on the credibility of the witness which is for the trier to determine. Piantedosi v. Floridia,
The defendant claims two further corrections are required in the method used to award damages. Both parties agree that the plaintiff's cost of purchasing the goods was erroneously included in the trial court's final award since the plaintiff's claim was for lost profits only. The defendant also claims that an additional 10 percent of the wholesale cost, representing the plaintiff's freight costs, was incorrectly added to the damages. Shipping costs are considered a cost of operation and are not added to the sale price in determining the net profit figure. Gordon v. Indusco Management Corporation,
There is error in part and the judgment is set aside with direction to render judgment for the plaintiff to recover of the defendant damages of $467.01.
DALY, BIELUCH and COVELLO, Js., participated in this decision.