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Ashe v. Sunshine Broadcasting Corp.

OPINION FILED NOVEMBER 13, 1980.

SAMUEL D. ASHE, PLAINTIFF-APPELLEE,

v.

SUNSHINE BROADCASTING CORP., DEFENDANT-APPELLANT. — (WILLIAM VARECHA ET AL., DEFENDANTS.)



APPEAL from the Circuit Court of Jackson County; the Hon. ROBERT W. SCHWARTZ, Judge, presiding.

MME JUSTICE SPOMER DELIVERED THE OPINION OF THE COURT:

This is an appeal by Sunshine Broadcasting Corporation from a judgment of the Circuit Court of Jackson County in favor of plaintiff-appellee Samuel D. Ashe. Ashe's cause of action was based upon the wrongful termination of his employment contract as sales manager of radio station WTAO in Murphysboro. The written contract, entered into on November 1, 1976, provided in pertinent part that Ashe would be paid a 15-percent commission on all sales of advertising at WTAO and would be entitled to 10 percent of the stock in the corporation upon completion of two years in the position.

The trial court, sitting without a jury, found in favor of the individual defendants (president and secretary of the corporation) and against the corporation. Damages were assessed at $61,573. No appeal is taken from the finding that Ashe was wrongfully discharged. Rather, the appellant seeks a new trial limited to the question of damages. The principal issue raised is that the court erred in excluding evidence that the parties agreed, subsequent to execution of the written contract, that Ashe's commissions would be based, not on all sales, but on amounts actually collected on sales of advertising. Other errors in ascertaining the amount of the plaintiff's damages are also raised.

On cross-examination by counsel for the defendants, Ashe was asked the following question:

"Isn't it true that in December, 1976, you and Varecha [president of the corporation] agreed that sales that you would be paid on would only be on collected sales?"

The plaintiff's objection based upon the parol evidence rule was sustained, the court stating "you are apparently attempting to modify the contract by statements that they made during the formulation of the contract."

The following exchange took place during the direct examination of defendant William Varecha:

"Q. Now Mr. Varecha, during the time Mr. Ashe — strike that. Did Mr. Ashe during the period of time that he worked there at your radio station ever say anything to you with regard to the compensation that he was receiving for his employment?

A. Yes, that was discussed at great length.

Q. When was the first discussion?

A. Immediately upon his arrival.

Q. Where was that discussion and who was present?

A. I believe the discussion took place at home. We reiterated it again on other occasions.

Q. Where was that discussion, who was present and what was the substance ...


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