COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60344 APEX SALES AGENCY, INC., : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION THE MATHER COMPANY, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 19, 1992 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 099,717 JUDGMENT : MODIFIED, AND AS MODIFIED, : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Frank R. Osborne ARTER & HADDEN 1100 Huntington Building Cleveland, Ohio 44115 For defendant-appellant: Owen L. Heggs Harry R. Silver JONES DAY, REAVIS & POGUE 901 Lakeside Avenue Cleveland, Ohio 44114 -2- NAHRA, P.J.: Apex Sales Agency, Inc. (hereinafter "Apex"), plaintiff- appellee, began representing The Mather Company (hereinafter "Mather"), defendant-appellant, in 1965 as one of Mather's sales representatives. Mather was a manufacturer of a variety of parts for industrial markets. In 1970, Mather and Apex entered into one of their many manufacturer's representative agreements which were signed over the years. Such contract required that Mather pay Apex 10% commission as the exclusive compensation for sales made by Apex of Mather products in designated territories. The contract also provided that it could be terminated upon thirty days' notice. Under the 1970 contract, Mather reserved the right to reduce commissions, but only in the event that Mather's profit margins could not be maintained for the particular product being sold. In 1975, Frank Mastromatteo, a salesman for Apex, initiated a project with the Harrison Radiator Division of General Motors (hereinafter "Harrison") to develop a teflon "lip seal" for use in the air-conditioning compressors for General Motors' vehicles. Over the next ten years, Mastromatteo devoted enormous amounts of time and energy in nurturing the lip seal project. Apex's goal was to secure for Mather an exclusive long-term requirements contract from Harrison concerning the lip seal. Such contract would represent millions of dollars of lip seal sales for Mather with excellent profit margins and, accordingly, large commissions for Apex resulting from such sales. -3- In 1981, it became clear to Apex that several more years of effort would be necessary to convince Harrison to enter into a long-term requirements contract with Mather. For several years prior to this time, Apex had sought a long-term agency contract from Mather. John Marron, Apex's president and owner, testified that long-term agency contracts are not unusual in Apex's business and are commonly given when a manufacturer's representative has represented a manufacturer for a substantial period of time. On January 21, 1981, Marron received a new contract offer from Mather, which required that either party give ten years' prior written notice in order to terminate the agreement. The contract (hereinafter "1981 Bloser contract") was executed on behalf of Mather by its sales manager, Charles Bloser; two of Mather's other employees witnessed the contract. Apex accepted the offer as evidenced by Marron's signature. Marron stated he sent the contract back to Bloser. Bloser testified that he made the offer because he believed it prudent business that Mather be linked to Apex for an extended period of time. Bloser believed that Apex was Mather's best manufacturer's representative. Bloser resigned from Mather three months after entering the contract. Marron further testified that he believed at the time the 1981 Bloser contract was offered and accepted that Bloser had the authority to enter into the agreement on behalf of Mather. The 1981 Bloser contract provided that Mather pay Apex 5% commission on a monthly basis for all sales made by Apex in its -4- territories. Similar to prior contracts, Mather reserved the right to reduce commissions if Mather's profit margins could not be maintained on a particular product. Evidence in the record indicates that Apex's sales representatives were independent contractors who were paid a commission by Apex amounting to 65% of the commissions actually received by Apex. On September 9, 1985, Harrison and Mather placed final signatures on a long-term requirements contract. The contract provided that Harrison would purchase all of its air-conditioning lip seals from Mather for at least three years. On the same day, Douglas Taylor, Mather's sales manager at the time, dated a letter to Apex which stated that Apex was terminated as Mather's sales agent and was instructed to stop calling on Mather's accounts "effective immediately". On September 13, 1985, the "termination letter" was shown to Apex at a meeting called by Taylor. At such meeting, Taylor initially gave Apex an ultimatum. He stated that unless Apex agreed to reduce its commissions on the lip seals from 5% to 2%, termination would occur. Apex's representatives, Mastromatteo and George Boscia, asked Taylor whether Mather could justify a reduction in commissions on the premise that Mather's profit margins could not be maintained on the lip seal product. Taylor did not state that Mather's profit margins on the lip seal were unacceptable. Apex refused to accept the reduction and was terminated thereafter. -5- From November, 1985 to June, 1990, Mather's lip seal sales to Harrison exceeded $15 million. The profit margin on such sales ranged from 30% to 36%. Mather personnel indicated that they learned of the 1981 Bloser contract for the first time when Apex filed its complaint in 1985. Taylor testified that prior to writing the letter of termination, he reviewed Mather's files to study the Apex contract. In Apex's file, he found only the 1970 contract between the parties. He further testified that it was this contract which he intended to terminate. Mather did not abide by the terms of the 1981 Bloser contract which required that Mather pay monthly commissions. In October, 1985, Apex filed a complaint against Mather alleging injury as a result of the breach of the 1981 Bloser agreement. Count I of the complaint alleged breach of contract; Count II of the complaint alleged the wrongful termination of an agency relationship; Count III of the complaint forwarded a claim based on promissory estoppel; count four sought recovery based on the principle of quantum meruit; and count five sought recovery for unjust enrichment. In addition to its answer, Mather filed a counterclaim in which it alleged that Apex breached its fiduciary duty as Mather's agent by concealing the 1981 Bloser agreement and that such concealment was fraudulent. -6- A trial ensued and, at the close of Apex's case, Mather made a motion for a directed verdict with respect to Counts I and II of Apex's complaint. The trial court denied such motion. At the close of Mather's case, Apex moved for a directed verdict in its favor on Count I of its complaint. Apex maintained that the meaning, validity, and terms of enforceability of the 1981 Bloser agreement were clear. The trial court granted Apex's motion. Apex then made a motion to dismiss Counts III through V of its complaint which the trial court granted. Apex also made a motion for a directed verdict with respect to Mather's counterclaim; the trial court granted Apex's motion. Mather, in turn, moved for a directed verdict concerning Count II of Apex's complaint which the trial court granted. On August 15, 1990, the trial court entered judgment for Apex and awarded $983,743.85 in damages to Apex on Count I of the complaint. Thereafter, Apex filed a motion for prejudgment interest. The trial court granted such motion in the sum of $220,062.91. This appeal follows. I. Appellant's first assignment of error states: THE TRIAL COURT ERRED TO MATHER'S PREJUDICE IN FAILING TO ALLOW THE JURY TO DECIDE WHETHER MATHER'S CONDUCT PRIOR TO THE FILING OF THIS ACTION CONSTITUTED A BREACH OF THE 1981 BLOSER AGREEMENT. -7- Mather maintains that the trial court erred when it granted a directed verdict for Apex on the issue of whether Mather breached the 1981 Bloser contract. Civ. R. 50(A)(4) states: When granted on the evidence. When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. It is the duty of the trial court to withhold an essential issue from the jury when there is insufficient evidence relating to that issue to permit reasonable minds to reach different conclusions on that issue. O'Day v. Webb (1972), 29 Ohio St. 2d 215, 220, 280 N.E.2d 896. The court should not consider the weight of the evidence or the credibility of the witnesses. Strother v. Hutchinson (1981), 67 Ohio St. 2d 282, 483 N.E.2d 467. Construing the evidence most favorably to Mather, we find that the trial court properly directed a verdict for Apex on Count I of its complaint and on the issue of Mather's breach of the 1981 Bloser contract. Mather claims that a jury might have concluded that it had not breached the terms of the 1981 Bloser agreement and that its actions merely constituted an anticipatory breach of such contract. An anticipatory breach of a contract by a promisor -8- involves a repudiation of the promisor's contractual duty before the time fixed for performance has arrived. McDonald v. Bedford Datsun (1989), 59 Ohio App. 3d 38, 40, 570 N.E.2d 299. The repudiation must be expressed in clear and unequivocal terms; mere requests for changes in the terms or requests for cancellation of the contract do not constitute a repudiation. Id. at the syllabus; Gilmore v. American Gas Machine Co. (C.P. 1952), 70 Ohio Law Abs. 569, 570-571, 129 N.E.2d 93. Here, Mather unequivocally cancelled Apex's agency effective immediately. Although damages continued to accrue until the time of trial, the breach occurred when the agency relationship was terminated. Thus, Mather's actions did not constitute an anticipatory breach of the contract and no jury question was presented. See Gilmore v. American Gas Machine Co. (C.P. 1952), 70 Ohio Law Abs. 569, 570-71, 129 N.E.2d 93. Appellant's assignment of error is overruled. II. Appellant's second assignment of error states: THE TRIAL COURT ERRED TO MATHER'S PREJUDICE IN FAILING TO ALLOW THE JURY TO DECIDE WHETHER THE 1981 BLOSER AGREEMENT WAS VOID FOR LACK OF CONSIDERATION. Mather asserts that the trial court erred by directing a verdict for Apex on Count I of Apex's complaint and that the trial court should have submitted to the jury the question of whether the 1981 Bloser contract lacked consideration. Mather argues that the 1981 Bloser agreement did not contain independent -9- consideration and that the two parties were already bound by the 1970 contract. The party seeking enforcement of a contract has the burden of proving consideration. Forester v. Scott (1973), 38 Ohio App. 2d 15, 311 N.E.2d 27. A promise to do something which the promisor is already obligated to perform is insufficient to constitute consideration of a new contract. Rhoades v. Rhoades (1974), 40 Ohio App. 2d 559, 321 N.E.2d 242. It is well settled that courts will not inquire into the adequacy of consideration once consideration is said to exist. Rogers v. Runfola & Associates, Inc. (1991), 57 Ohio St. 3d 5, 6, 565 N.E. 2d 540. The 1981 Bloser contract contained a ten-year termination clause to which the parties agreed. This clause constituted a material difference from the thirty-day termination clause contained in the 1970 contract between the parties. Bloser, Mather's sales manager at the time, testified that he entered into the contract for Mather's benefit insofar as he believed that Apex would be motivated to better perform its job on behalf of Mather. His testimony also indicated that the ten-year termination clause would make certain that Apex kept the lip seal project with Mather. This evidence established sufficient consideration and the trial court properly directed a verdict for Apex on Count I of Apex's complaint. Appellant's assignment of error is overruled. III. -10- Appellant's third assignment of error states: THE TRIAL COURT ERRED TO MATHER'S PREJUDICE IN FAILING TO ALLOW THE JURY TO DECIDE WHETHER APEX HAD PROVED, BY A PREPONDERANCE OF THE EVIDENCE, THAT BLOSER POSSESSED THE REQUISITE AUTHORITY TO BIND MATHER TO THE 1981 BLOSER AGREEMENT. Mather contends that the trial court erred by not submitting to the jury the issue of whether or not Bloser, Mather's sales manager, had actual or apparent authority to bind Mather to the 1981 contract. The Supreme Court of Ohio has stated: Even where one assuming to act as agent for a party in the making of a contract has no actual authority to so act, such party will be bound by the contract if such party has by his words or conduct, reasonably interpreted, caused the other party to the contract to believe that the one assuming to act as agent had the necessary authority to make the contract. Miller v. Wick Bldg. Co. (1950), 154 Ohio St. 93, 93 N.E.2d 467, paragraph two of the syllabus. The Supreme Court of Ohio has also stated: In order for a principal to be bound by the acts of his agent under the theory of apparent agency, evidence must affirmatively show: (1) that the principal held the agent out to the public as possessing sufficient authority to embrace the particular act in question, or knowingly permitted him to act as having such authority, and (2) that the person dealing with the agent knew of those facts and acting in good faith had reason to believe and did believe that the agent possessed the necessary authority. Master Consolidated Corp. v. BancOhio Nat'l. Bank (1991), 61 Ohio St. 3d 570, 575 N.E.2d 817, syllabus. The burden of proving that such agency exists rests upon the party asserting the agency. -11- Irving Leasing Corp. v. M & H Tire Co. (1984), 16 Ohio App. 3d 191, 195, 475 N.E.2d 127. Construing the evidence in Mather's favor, we do not believe that the trial court erred by withholding such issue from the consideration of the jury. Civ. R. 50(A)(4); O'Day v. Webb (1972), 29 Ohio St. 2d 215, 280 N.E.2d 896. Bloser testified that his authority as Mather's sales manager in 1981 included the handling of Mather's contracts with sales representatives. He testified affirmatively that he had the authority to enter into the contract in question with Apex. Mather presented no testimony to dispute this testimony. Jerry Cooper, Mather's general manager, testified that he did express to Bloser on one occasion that he was not in favor of a long- term contract with Apex. However, Cooper's testimony does not reveal that he told Bloser in any way that Bloser lacked the authority to enter into the 1981 contract. Cooper claimed that Bloser would need the approval of Mather's President in order to enter a contract of more than one year; yet, Cooper admitted that he did not inform Bloser about such a requirement. Bloser further testified that he knew of no such requirement or company policy. Apex's President, John Marron, testified that he too believed that Bloser had the authority to enter into the contract on Mather's behalf. Marron indicated that he knew of other long- term contracts that Mather had entered into by its sales managers. -12- As a result of the foregoing, we find that the trial court's decision not to submit to the jury the issue of Bloser's apparent authority was proper. Accordingly, appellant's assignment of error is overruled. IV. Appellant's fourth, sixth, seventh, and eighth assignments of error are interrelated and shall be examined together. They state: 4. THE TRIAL COURT ERRED TO MATHER'S PREJUDICE IN RULING THAT APEX WAS ENTITLED TO DAMAGES PRIOR TO THE YEAR 2005. 6. THE TRIAL COURT ERRED TO MATHER'S PREJUDICE IN CALCULATING APEX'S ALLEGED DAMAGES WITHOUT SUBTRACTING PERSONNEL COSTS WHICH APEX SAVED WHEN IT CEASED PERFORMING SERVICES FOR MATHER IN SEPTEMBER 1985. 7. THE TRIAL COURT ERRED TO MATHER'S PREJUDICE IN CALCULATING APEX'S ALLEGED DAMAGES WITHOUT DEDUCTING APEX'S OVERHEAD COSTS, AND WITHOUT ALLOWING MATHER TO ARGUE TO THE JURY THAT APEX'S ESTIMATES OF OVERHEAD WERE INACCURATE OR THAT APEX'S ALLEGED DAMAGES WERE SPECULATIVE. 8. THE TRIAL COURT ERRED TO MATHER'S PREJUDICE IN FAILING TO REDUCE APEX'S ALLEGED DAMAGES TO THEIR PRESENT VALUE. In its written findings pursuant to Civ. R. 50(E), the trial court stated in part: The said contract between the parties hereto provided that it would be in full force and could not be terminated in less than ten (10) years from the date of written notice of such termination. Defendant gave such a written notice on September 15, 1985. Therefore, the actual termination would be effective September 15, 1995., The defendant continued -13- to reap the benefit of sales upon which the plaintiff was entitled to receive his contractual commissions. The defendant, however, did not pay these to the plaintiff. The total sales upon which plaintiff was entitled to recover its commission from October 1985 was stipulated to by the parties in exhibits which were admitted by agreement of the parties. The mathematical calculation of the commissions due plaintiff based upon the contract of the parties and the said stipulated amount of business was $983,743.85 for which judgment was entered. Plaintiff had some obligations to others which did not affect the defendant's obligation to pay plaintiff. The defendant became unhappy about the amount of money plaintiff was entitled to receive in accordance with the contract of the parties. However, there were no disputed issues for the jury to decide. The motion of the plaintiff for a directed verdict was duly made and granted. Mather argues that the trial court erred when it awarded Apex damages in the amount of $983,743.85. Mather asserts initially that any amount owed Apex was not due until the year 2005 based on the terms of the 1981 Bloser agreement. However, the terms of such contract indicate clearly and unambiguously that Mather was required to pay commissions to Apex on the 25th day of each month for a period of ten years after notice of termination had been given. The 1981 Bloser agreement provides in pertinent part: This agreement shall remain in full force and effect until terminated by either party by written notice, with actual termination dated being ten years from the date of the written notice. Upon termination of this agreement, commissions shall be payable to the Representative only upon sales represented by orders received, accepted and shipped by the Manufacturer during the period of this Agreement. Such commissions will be paid within ten (10) years after the termination date. The Representative shall be entitled to commissions for his services computed at the rate of five percent (5%) of net selling prices, payable on the 25th day of each -14- month in respect of net selling of goods shipped during the previous month. The interpretation of a written agreement is a matter of law for the court. Alexander v. Buckeye Pipe Line Co. (1978), 53 Ohio St. 2d 241, 374 N.E.2d 146. The purpose of contract construction is to effectuate the intent of the parties. Skivolocki v., East Ohio Gas Co. (1974), 38 Ohio St. 2d 244, 313 N.E.2d 374, paragraph one of the syllabus. The intent of the parties to a contract is presumed to reside in the language they chose to employ in the agreement. Blosser v. Enderlin (1925), 113 Ohio St. 121, 148 N.E.2d 393, paragraph one of the syllabus. The court need not go beyond the plain language of the agreement to determine the parties' rights and obligations if a contract is clear and unambiguous. Id. at paragraph two of the syllabus. We find that the language of the 1981 Bloser contract is clear and unambiguous, and that it required Mather to pay Apex commissions on a monthly basis for the period of ten years after notice of termination had been given. Written notice was given by Mather in September 1985 and the "actual termination date" was September 1995. Mather's strained construction that it need not make any payments until 2005 contravenes the clear terms of the contract. The trial court's interpretation of such contractual terms was proper. Mather further argues that the trial court erred by failing to reduce Apex's award of lost profits by the amount of overhead costs that Apex would save in not being required to service the -15- Mather account between 1990 and 1995. In addition, Mather argues that Apex is entitled to only 35% of the judgment since Apex paid 65% of commissions received to its salesman who operated as independent distributors. In a breach of contract action, money damages are awarded to place the aggrieved party in the same position it would have been in had the contract not been violated. Schulke Radio Productions, Ltd. v. Midwestern Broadcasting Co. (1983), 6 Ohio St. 3d 436, 439, 453 N.E. 2d 683. The clear terms of the 1981 Bloser contract entitled Apex to receive 5% commission on the sales of Mather products each month. To subtract from that amount the percentage Apex owes its distributors would not make Mather whole with respect to Apex's agreement with Mather. Mather's contract was with Apex and not Apex's salesmen. Mather agreed, under the contract, to pay Apex on a commission basis. Apex, likewise, agreed to pay its salesmen on a commission basis. Apex was required to pay its salesmen only upon receipt of the commission proceeds from Mather. We believe that Mather was properly required to pay Apex the full amount owed under the contract in order to put Apex in the position it would have been in had the contract been performed. In a contract case, a plaintiff is entitled only to recover damages for the defendant's breach of the contract in the amount of the further compensation plaintiff would have received under the contract, less the value to plaintiff being relieved of the obligations of completing performance. Allen, Henton & McDonald -16- v. Castle Farm Amusement Co. (1949), 151 Ohio St. 522, 86 N.E.2d 782. In Schulke Radio Productions, Ltd. v. Midwestern Broadcasting Co. (1983), 6 Ohio St. 3d 436, 439, 453 N.E.2d 683, the Ohio Supreme Court stated that the amount saved by the aggrieved party "does not necessarily include overhead, or fixed expenses". Instead, the "wrongdoer is entitled to a credit for only those business costs as were reasonably saved by its breach". Id, citing R & I Electronics, Inc. v. Neuman (1978), 66 A.D. 2d 836, 838, 411 N.Y. Supp. 2d 401, 414. Here there was testimony by an Apex employee that Apex would save $25,000.00 in overhead expenses in not having to service the Mather account between 1990, the time of trial, and 1995. We believe that a reduction in the judgment to reflect such savings is reasonable and that the trial court should have done so. As a result, the judgment should be so modified. To this extent, appellant's assignment of error is sustained. V. Appellant's fifth assignment of error states: THE TRIAL COURT ERRED TO MATHER'S PREJUDICE IN FAILING TO ALLOW THE JURY TO DECIDE WHETHER APEX WAS EQUITABLY ESTOPPED FROM ENFORCING THE 1981 BLOSER AGREEMENT. Mather asserts that the trial court erred by not submitting to the jury the issue of whether Apex was equitably estopped from enforcing the 1981 Bloser contract. Mather maintains that Apex led Mather to believe that the 1970 agreement was still in effect -17- by remaining silent about the 1981 Bloser contract on numerous occasions after the 1981 contract was made. The Supreme Court of Ohio has stated: The purpose of equitable estoppel is to prevent actual constructive fraud and to promote the ends of justice. It is available only in defense of a legal or equitable right or claim made in good faith and should not be used to uphold crime, fraud, or injustice. (Citations omitted.) The party claiming the estoppel must have relied on conduct of an adversary in such a manner as to change his position for the worse and that reliance must have been reasonable in that the party claiming estoppel did not know and could not have known that its adversary's conduct was misleading. (Citations omitted.) Ohio Sate Bd. of Pharmacy v. Frantz (1990), 51 Ohio St. 3d 143, 145, 555 N.E.2d 630. In order to sustain a defense of estoppel, all of the following elements must be established by a preponderance of the evidence: 1. False representation or concealment of material facts by words, acts, conduct or silence, where there is a duty to speak, 2. By a person with knowledge, actual or constructive of the true facts, 3. To a person without as great or sufficient knowledge, 4. With the intention that the misrepresentation or concealment shall be acted on by the latter person, 5. Who must so rely and act thereon, or omit to do some act, to his injury or prejudice. A change of position which will fulfill this element of estoppel must be actual, substantial and justified. (Citations omitted.) New York Central Railroad Co. v. General Motors Corp. (N.D. Ohio, 1960), 182 F. Supp. 273; see also State, ex rel. Cities Service -18- Oil Co. v. Orteca (1980), 63 Ohio St. 2d 295, 409 N.E.2d 1018. Here, there was no substantial evidence presented by Mather with respect to the first, third and fifth elements enumerated above. Apex's alleged silence in referring to the 1981 Bloser contract transpired after the agreement had been entered by both parties. We do not believe that Apex had a duty to mention the agreement at all after the 1981 Bloser contract had been consummated. Several of the communications between the parties involved the question of a change of territory and not of one of termination. In addition, Mather, through its agent Bloser, had full knowledge of the 1981 agreement. Finally, Mather failed to present any evidence that it relied to its detriment on Apex's failure to mention the contract after 1981. Construing the evidence in Mather's favor, we believe that the trial court's order for directing a verdict against Mather on the issue of equitable estoppel was proper since several of the elements were not met. Appellant's assignment of error is overruled. VI. Appellant's ninth assignment of error states: THE TRIAL COURT ERRED TO MATHER'S PREJUDICE IN GRANTING APEX'S MOTION OF PREJUDGMENT INTEREST ON APEX'S ALLEGED DAMAGES. Mather argues that the trial court erred in awarding prejudgment interest to Apex because the amount of the award is uncertain and the claim is unliquidated. -19- R.C. 1343.03(A) provides: In cases other than those provided for in sections 1343.01 and 1343.02 of the Revised Code, when money becomes due and payable upon any bond, bill, note, or other instrument of writing, upon any book account, upon any settlement between parties, upon all verbal contracts entered into, and upon all judgments, decrees, and orders of any judicial tribunal for the payment of money arising out of tortious conduct or a contract or other transaction, the creditor is entitled to interest at the rate of ten percent per annum, and no more, unless a written contract provides a different rate of interest in relation to the money that becomes due and payable, in which case the creditor is entitled to interest at the rate provided in that contract. Prejudgment interest is available under R.C. 1343.03(A) when the claimed amount due is "capable of ascertainment by computation or reference to well-established market values at the time the cause of action arose". Worrell v. Multipress, Inc. (1989), 45 Ohio St. 3d 241, 249, 543 N.E.2d 1277; see Mahen-Evans Realty Inc. v. Spike (1986), 33 Ohio App. 3d 268, 515 N.E.2d 953. When the amount is unliquidated and not sum certain, a party is not entitled to prejudgment interest. Braverman v. Spriggs (1980), 68 Ohio App. 2d 58, 426 N.E.2d 526, paragraphs one and two of the syllabus; see Jeppe v. Blue Cross (1980), 67 Ohio App. 2d 87, 425 N.E.2d 947, paragraph two of the syllabus. Here, the damages were capable of ascertainment at the time the cause of action arose in October, 1985. The 1981 Bloser contract provided that Mather pay Apex on the 25th day of each month following shipment. The contract further provided that Mather pay Apex a commission rate of 5% of Mather's net sales for the particular product sold by an Apex representative. Both -20- parties stipulated at trial to the amount of Mather's sales. As a result, the amount Mather owed each month was capable of ascertainment. The trial court's award of prejudgment interest was proper. Appellant's assignment of error is overruled. VI. Appellant's tenth assignment of error states: THE TRIAL COURT ERRED TO MATHER'S PREJUDICE IN REFUSING TO ALLOW MATHER TO PRESENT EVIDENCE ON ITS COUNTERCLAIM FOR BREACH OF FIDUCIARY DUTY AND FRAUD, AND IN SUBSEQUENTLY DIRECTING A VERDICT AGAINST MATHER ON ITS COUNTERCLAIM. Mather asserts that the trial court erred by directing a verdict against Mather on its counterclaim. In its counterclaim, Mather alleged fraud and breach of a fiduciary duty by Apex when Apex failed to mention to Mather the existence of the 1981 Bloser agreement. As mentioned above, we do not believe that Apex had a duty to disclose the existence of the 1981 Bloser agreement after the agreement had been consummated by the parties. Mather knew of the contract through its sales manager, Charles Bloser, as well as through two other Mather employees who served as witnesses to the contract. There is nothing in the record to support the proposition that Apex perpetrated a fraud on Mather or that Apex breached a fiduciary duty that it owed Mather. As a result, we believe that the trial court's directed verdict against Mather on -21- its counterclaim was proper. Civ. R. 50(A)(4); O'Day v. Webb (1972), 29 Ohio St. 2d 215, 280 N.E.2d 896. Moreover, that evidence in the record reveals damages sought by Mather in its counterclaim were for the costs of defending the contract claim and filing the counterclaim, instead of any breach of a duty owed by Apex. The cost of litigation expenses are recoverable by the prevailing party only for a malicious prosecution or when the losing party has acted in bad faith or vexatiously. Buller v. Respicare, Inc. (1987), 39 Ohio App. 3d 17, 528 N.E.2d 1282. There is no evidence in the record that Apex prosecuted its case maliciously or that it acted in bad faith. Appellant's assignment of error is overruled. VII. Apex's sole assignment of error on its cross-appeal states: THE TRIAL COURT ERRED IN DENYING APEX'S MOTION FOR SUMMARY JUDGMENT AS TO LIABILITY UPON COUNT II OF THE COMPLAINT AND THEREAFTER DIRECTING A VERDICT AGAINST APEX ON THAT COUNT. In Count II of its complaint, Apex alleged that Mather terminated its contract with Apex in bad faith. Apex contends that each party owed each other reciprocal duties of good faith within the context of a principal-agent relationship. Apex maintains that the trial court erred by directing a verdict on Count II since Mather's termination of Apex at the same time that Mather entered into a contract with the Harrison division of -22- General Motors created a factual question for the jury on the issue of a bad faith termination. In the context of a principal-agency relationship, the parties owe each other reciprocal duties of good faith. Bonnell v. B & T Metals Co. (1948), 52 Ohio Law Abs. 1, 3, 81 N.E.2d 730. One such duty of good faith is for a principal not to terminate an agent in bad-faith or in order to avoid payment of a commission. Smith v. Frank P. Schoner, Inc., (1953), 94 Ohio App. 308, 115 N.E.2d 25. However, employment contracts of infinite duration between a principal and an agent are terminable at-will. Brudzinski v. Nationwide Mutural Insurance Co. (Aug. 18, 1977), Cuyahoga App. No. 36055, unreported; see Miller v. Wikel Mfg. Co. (1989), 46 Ohio St. 3d 76, 78, 545 N.E.2d 76; see also Randolph v. New England Mutual Life Insurance (C.A. 6, 1975), 526 F.2d 1383. The employment-at-will doctrine holds that "either party * * * may terminate the relationship for any reason which is not contrary to law." Biskupich v. Manor Nursing Home (1986), 33 Ohio App. 3d 220, 221, 515 N.E.2d 632 quoting Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 103, 483 N.E.2d 150. Here, the 1981 Bloser agreement was one of indefinite duration. As a result, such contract was terminable at-will and Mather was entitled to terminate Apex regardless of Mather's motive. Further, the 1970 contract, on which Mather allegedly relied when it provided Apex with notice of termination, was also of indefinite duration. Moreover, the explicit language of both contracts provided that written notice of termination could be -23- given by either party at any time. Damages were accounted for between the time that notice was given and the predetermined date of termination. To the extent that Mather did rely on the 1970 contract which contained an actual termination date thirty days after notice was given, Mather's termination was not executed in bad faith, or as a means to avoid a commission. For these reasons, we find that the trial court's ruling directing a verdict for Mather on the issue of a bad faith temination was proper. Civ. R. 50. Apex's assignment of error on its cross-appeal is overruled. The judgment of the trial court is modified, and as modified, affirmed. -24- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATTON, J., and KRUPANSKY, J., CONCUR. JOSEPH J. NAHRA PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .