## Facts

- Robert DeMarco worked as a sales representative for Ohio Decorative Products, Inc. (Ohio Decorative).
- DeMarco claimed the parties agreed that he would receive “life-of-the-part” commissions—commissions on each part for which he obtained the first order, continuing even after his relationship with Ohio Decorative ended.
- DeMarco’s contract claim relied in part on a written agreement from 1965 that he said reflected the life-of-the-part arrangement.
- The original 1965 contract could not be produced at trial. DeMarco testified that he searched for it but could not find it and believed it had been lost or destroyed.
- Ohio Decorative stopped paying commissions after DeMarco’s relationship with the company ended, including commissions on parts DeMarco claimed were covered by the life-of-the-part agreement.
- DeMarco sued Ohio Decorative for breach of contract seeking unpaid post-termination commissions.
- At trial, Ohio Decorative objected to testimony about the missing 1965 contract’s terms, arguing the best evidence rule barred secondary proof of its contents.
- The district court allowed testimony about the lost contract and the alleged life-of-the-part term.
- The jury returned a verdict for DeMarco, and the district court entered judgment awarding damages (and related relief).
- Ohio Decorative appealed, challenging the admission of secondary evidence and the sufficiency of the evidence supporting liability and damages.

## Issues

1. Whether the best evidence rule barred testimony about the contents of the missing 1965 contract where the proponent claimed the original was lost or destroyed.
2. Whether the evidence permitted a reasonable jury to find that the parties agreed to a life-of-the-part commission term and that the term was enforceable rather than too indefinite.
3. Whether the district court properly denied post-trial relief attacking the verdict (including challenges to the sufficiency of the evidence and the amount of damages).
4. Whether the district court committed reversible error in awarding and/or calculating prejudgment interest.

## Decision

- The Sixth Circuit affirmed the judgment for DeMarco.
- The court upheld the district court’s ruling allowing secondary evidence of the 1965 contract after DeMarco showed the original was unavailable despite a search and there was no showing of bad-faith loss or destruction.
- The court concluded the record contained sufficient evidence for the jury to find an agreement for life-of-the-part commissions and to award damages based on that agreement.
- The court found no basis to disturb the district court’s denial of post-trial motions seeking judgment as a matter of law or a new trial.
- The court found no reversible error in the prejudgment interest determination.

## Legal Principles

- Under the best evidence rule, the original writing is generally required to prove its contents, but secondary evidence (including witness testimony) is admissible if the proponent establishes the original was lost or destroyed without bad faith and cannot be obtained by reasonable means.
- A commission agreement may provide for post-termination commissions where the factfinder determines the parties assented to such a term; enforceability turns on whether the term is sufficiently definite to be applied to the transactions at issue.
- On appeal from a jury verdict, courts review the evidence in the light most favorable to the verdict and will not reweigh credibility; a verdict stands if supported by evidence from which a reasonable jury could find liability and damages.
- Prejudgment interest determinations are reviewed for legal error and, where discretionary, for abuse of discretion; reversal requires a showing that the governing standard was misapplied or the computation was erroneous.

## Conclusion

DeMarco held a jury verdict that Ohio Decorative breached a life-of-the-part commission agreement by stopping post-termination commission payments. The Sixth Circuit affirmed, ruling that testimony about a missing 1965 contract was admissible once DeMarco showed the original could not be found without bad faith, and that the trial record supported the jury’s findings on the existence and enforceability of the life-of-the-part term, the resulting damages, and the prejudgment interest award.


DeMarco v. Ohio Decorative Products, Inc., 19 F.3d 1432 (1994)