Rizzi v. Barakat, No. Cv94-01121177 (Aug. 15, 1995)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION After trial, the court finds the following facts. In January 1994, the plaintiff and the defendant entered into a verbal agreement whereby the plaintiff sold to the defendant the plaintiff's customer list and good will for the plaintiff's business known as J K Produce. The agreed upon purchase price was $5,000 and the plaintiff and the defendant agreed that the price would be paid in weekly payments at the rate of $1.00 per produce package order sold by the defendant to the former customers of J K Produce. The defendant made two payments totalling $200 to the plaintiff and has made no further payments. The plaintiff brings this action seeking judgment for the $4,800 balance alleged to be due.

In finding these facts, the court credited the plaintiff's testimony. The court found that the defendant was not credible.

Judgment is entered for the defendant, however, because the plaintiff failed to sustain his burden of proving damages. The agreement between the parties provided for payment at the rate of $1.00 per package sold by the defendant to former customers of J K Produce. The parties did not agree to a date when the balance of the $5,000 must be paid. Nor did their agreement provide for acceleration of the balance due if a payment was missed. As a result, the amount due the plaintiff as of the date of trial is limited to $1.00 per package of produce sold to former customers of J K Produce. The plaintiff, therefore, failed to present any evidence with respect to the number of produce packages sold by the defendant to former customers of J K Produce. The plaintiff failed to sustain his burden of proof with respect to damages.

VERTEFEUILLE, J.