In Gage Corp. v. Tamareed Co.(2017AP881), the Court of Appeals District IV held that Gage Corp. did not owe commission to sales agent Tamareed Corp. after Gage’s deal for a Saudi building project collapsed.

Tamareed procured a contract between Gage and the Saudi company. Gage and the Saudi company entered into an agreement, but Gage later discovered that the Saudi company was counterfeiting the design for its product. The two companies settled, and Gage offered Tamareed a portion of its settlement proceeds. Tamareed rejected the settlement funds and sought its full commission payment in court.

The court determined that email agreements between Gage and Tamareed established a contract between the parties that Gage would only pay Tamareed upon receiving payment for the goods it sold. Therefore, since Gage ultimately sold no goods to the Saudi company, Tamareed was not entitled to the full commission payment. The court rejected Tamareed’s argument that a prior case, Foster v. Holbrook-Armstrong Iron Co., created a blanket rule that sales agents should receive commission for procuring contracts between buyers and sellers, whether or not the sale ultimately goes through. The court ruled such a “procuring clause doctrine” favoring sales agents does not override contracts. Furthermore, the court said Tamareed could not pursue an unjust enrichment claim as an alternative to its breach of contract claim.

The court also rejected Tamareed’s argument that the circuit court erred in allowing expert witness testimony under the Daubert standard. The court ruled the expert used by Gage to testify to custom and usage in the trade industry was relevant and reliable, so the admissibility was at the proper discretion of the circuit court.