Owen, S. The evidence showed that Hewlett-White has been an established business for thirty-three years and has consistently shown profits. Additionally, there was evidence that the sale of flowers is not an uncertain or speculative business. A representative for Southwestern Bell testified that directory advertising is a very effective method of attracting business for florists.
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The representative further added that a business would be hurt if its telephone number was incorrectly listed in the yellow pages. Hewlett-White's business records were introduced to show the gross sales in the years through , and was the only year with a decline in gross receipts. White's certified public accountant, using "linear regression" analysis, testified what White's sales should have been in There was testimony that Hewlett-White's sales through wire services, which are unrelated to yellow-page advertising, increased in White's income tax returns and other testimony conflicted with these figures; however, the determination of which figure is correct is for the jury.
Harrison-Wilson-Pearson, S. White testified that twenty-five to thirty percent of his gross receipts is profit. His estimate as to what percentage of his receipts is profit was reasonably certain because of his experience in the field. Under the facts of this case, it cannot be said, as a matter of law, that White is not entitled to recovery for his lost profits. We hold White's evidence presented a fact question for jury determination. The telephone company, as an additional basis for its motion for instructed verdict, asserted that White has no standing as a "consumer" under the Deceptive Trade Practices Act.
Code Ann. This contention is without merit as White sought and paid for additional telephone lines and yellow-page advertising, and therefore is a consumer under the Act. Further, Southwestern Bell alleged that its affirmative defense of accord and satisfaction was conclusively proved because White agreed to an eighty percent reduction in his monthly advertising rates. We hold that a fact question exists as to whether the elements of this defense are established.
See Jenkins v. Henry C. Beck Co. Consequently, the instructed verdict cannot be upheld on this point. Southwestern Bell contends that its liability, if any, is limited by its tariff and advertising contract. Calidad, servicio y estilo al mejor precio para la mujer de hoy. San Antonio Office — Sales.
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