- 176 -
petitioner. The facts indicate otherwise. Not only did
petitioner overtly state to GM that Diesel Power was not GM's
authorized representative, but his behavior also indicated the
same. The record shows that petitioner was in control of
negotiations concerning the amount of commissions and that he
earned those commissions by performing the work for them. He or
one of his CTC employees also directed GM where to make
commission payments. Petitioner argues that, when the agreement
was first signed with GM, GM did not distinguish between CTC of
Iran and CTC of Ohio. After Diesel Power was established, he
argues, no one thought to change it, and in fact Diesel Power was
GM's representative for the sale of locomotives. He also
contends that the Zand FNCB London account was a Diesel Power
account used for the receipt of commissions in pounds sterling
from, among others, GM. This appears to be inconsistent with the
contemporaneous written material in evidence, to which we are
inclined to give greater weight. The Zand FNCB London account
was in petitioner's name, and instructions came from CTC to
deposit funds therein. We also point out that Diana Khalatbari
in a note to CTC called this account "JJ's London account", not
"Diesel Power's account". There also was ample evidence that
petitioner held himself out to GM as GM's representative,
referring to CTC and Diesel Power employees as his "associates".
We also emphasize that, by the specific terms of the agreement
Page: Previous 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 NextLast modified: May 25, 2011