Action by C. E. Wise & Bro. against the Texas Company..From an adverse judgment, defendant appeals. Reversed.
This action was brought to recover $1,500, as damages, for an alleged breach of contract to sell and deliver to the plaintiffs, at Norfolk, Va., f. o. b. 350 barrels of motor gasoline, the balance of the entire lot of 500 gallons called for by the original contract. It is alleged that the contract was made through one C. C. Clark, agent of the defendants, and the price was 8 1/2 cents per gallon. Defendants refused to ship the oil, and denies that any such contract was ever made. Plaintiffs put in evidence a written contract, signed by them and C. C. Clark, salesman, dated August 19, 1911. It appears that this contract was not really made on the day of its date, but in the latter part of October, 1911, and dated back to August 19, 1911, for the reason that the agent of defendants, C. C. Clark, had been forbidden by them to make any contracts after August 19, 1911, for the sale of gasoline at 8 1/2 cents per gallon; the price of gasoline having advanced rapidly at the time the paper was signed in October, and was still advancing, the price in October being 9 1/2 cents per gallon. The contract was as follows:
The Texas Company.
Ship to C. E. Wise & Bro., Stumpy Point.
When ship: As required.
Route............
Freight allowance to............
Terms 30 days. 500 barrels motor gasoline @ 8 1/2 cents f. o. b. Norfolk.
In purchasing the above quantity it is the intention of the purchaser to cover his entire requirements for one year from date. If, however, purchaser shall be unable to use the entire quantity during the period indicated, the seller may cancel unused balance or extend period of delivery. C. C. Clark, Salesman.
Accepted: C. E. Wise & Bro., Purchaser.
Clark inclosed the contract to plaintiffs in a letter suggesting that they remit some money to keep the company in better humor. E. F. Wise testified in part:
"We had a contract with the Texas Company about some oil. (The contract is in writing and it is shown witness; it is signed by 'C. E. Wise & Bro.') I did it. The name 'C. C. Clark, Salesman, ' was written by C. C. Clark. I know him. I saw him here to-day. He is here. I had dealings with him, buying oil from him, etc. I went over to the Texas office. I have been dealing with the Texas Company, through Mr. Clark, nearly a year. I know where the Texas Company's office is in Elizabeth City. Mr. C. C. Clark is in that office, acting for the company. He is the man who signed this paper, and was in the office of the Texas Oil Company in Elizabeth City when he signed the contract. We went to see him some time toward the latter
part of October, 1911. Mr. Clark was in the office. Q. What was said by you and him about entering into this contract at that time? A. He said that the company had quit accepting contracts after the 19th of August. Q. What else? A. He said that, by dating it back, he thought that the company might accept it. He filled out the contract and signed and passed it to me, and I signed it. Q. What did you and he agree to do about it? A. He said that he was not positive that it would go through, but that he would send it to the Norfolk office and find out, and, if it was accepted there, it was all right. Q. Anything else said? A. No, sir, I left and went home, and he signed the contract. He sent a letter with it, and I have it with me. It was about a week after Clark signed the contract before I received the contract through mail. * * * After looking at the letters and so on, I am willing to withdraw the statement positively that it was in November; it was in the latter part of October. I was in Elizabeth City when I made this arrangement with Clark. I didn't date it back to August 19th. I haven't anything to do with that part of it. Q. Didn't he tell you that he could not make the contract unless he dated it back? A. He told me that; yes, sir; but I didn't have anything to do with that part of it. Mr. Clark didn't tell me that he could make the contract. He said that the company had notified him not to accept any more contracts, but that was his own business and not mine. He then said he would send it to the office. I don't know whether oil had gone up at that time as much as a cent. It was worth 9 or 9 1/2 cents. He told me he would rather we sign a contract: that several others had signed it; and he would rather we would. I stated when I was on the stand before as follows: 'Q. Why did he say he wanted it dated back to August 19th? A. Because that was the time the time expired for accepting contracts. The company would not accept any more after that date.' That was my answer; as a matter of fact, he didn't tell me that the company would not accept any more. Q. You did testify to that before? A. I testified to that, but he must have known it by accepting it. He told me that the company would not accept any more after that date. He stated that he was not sure he could get it through, but that he would send it to the Norfolk office and see if he could get it accepted. When I got this contract, Mr. Clark told me he had instructions from the company not to take the contract, and it was dated back so that the company would furnish the oil. He told me the oil was going up, and that he received a wire not to make any more contracts at that price, and the only way he could make the contract was to date it back, and I agreed to take it with that understanding; that proposal was made to me by him. Q. Wasn't that a fact? A. Yes, sir; most of it was. He told me that the company had refused to accept the contract. He made the proposal to me to get this contract through. He presented the contract to me, and said that the company had notified him not to take any more contracts, but that he thought he could get it through. I said to him, if he could get it through. I would take the risk of the oil going up or down."
The following is a part of the testimony of E. F. Wise, one of the plaintiffs, on a former trial of this case at July term, 1913:
"Q. Then did you get this under the contract? A. It must have been so. Q. Then your contract was made before October 14th, wasn't it. A. I don't think so. Q. Will you explain to the court and jury how you got that at 8 1/2 cents October 14th. if it wasn't under the contract? A. I don't know the exact date our contract was signed; I judged it to be in Novem-ber. Q. I am asking you to state whether or not this was under the contract. A. It must have been under the contract. Q. Then, according to that, the contract was made before October 14th? A. Yes, sir. Q. When you got this contract, Mr. Clark told you that he had instructions from the company not to make the contract, didn't he; and you had it dated back so that the company would furnish the oil? A. Yes, sir; he dated it back and told me about it. He told me that oil was going up, and he had received a wire not to make any more contracts at that price, and that the only way he could make the contract was to date it back, and I agreed to take it with that understanding. Q. When he agreed to that, then he signed the paper? A. I signed it, and he signed it also. Q. So then, at the time the contract was made, oil had gone up how much? A. It seems to me it was about 9 cents. Q. And the only way he could get that to you was to date the contract back? (Plaintiffs object; objection overruled, and the plaintiffs except.) A. That was the only way to get it through, so he said."
The defendant alleged and offered evidence to show that C. C. Clark had no authority to make the contract, but had been forbidden to do so, and that they would not have shipped any oil to plaintiffs under the terms of the paper, had it been known at the time that the contract had been antedated in order to deceive them and produce the impression upon them, which was done, that the contract was correctly dated and they were bound to ship the oil, as it was not forbidden by the special instructions given to Clark by the defendant. On this part of the case, and with reference to the orders for oil sent in by plaintiffs, W. Thompson testified:
"On October 14, 1911, an invoice was sent to us, showing a delivery to C. E. Wise & Bro. at 8 1/2 cents a gallon, which was one cent lower than prices were at that time. It was not in accordance with our prices. It was sent in for approval, but was not approved, and I refused to approve it, and held the invoice up, and would not allow them to enter it on our books, and I asked Mr. Clark why he had done so. He said he had a contract with C. E. Wise. I said, 'We have no record of it;' he said, 'It ought to have been sent to you.' A short time after that he sent what purported to be a contract in; when it came it bore date of 'August 19, 1911.' I took the contract in faith that it was made on the date shown. I first learned last term of court about its being dated back by hearing the testimony of Mr. Wise on the stand. Oil was worth, when the contract was sent in by Mr. Clark, 9 1/2 cents f. o. b. Norfolk, wholesale. The oil would not have been delivered if I had known it had been dated back. I would not have sent any if I had known it was made in October instead of August. There were 79 barrels shipped. The company made contracts at this time, from May 1, 1911, to August 19, 1911. On August 19, 1911, our instructions to our salesmen were to increase their price one cent a gallon, and to take no more contracts. I sent him instructions by telegram and called him up over the phone. I have not the letter. I do not think we have been able to find it. We found a letter of August 23d, asking that Mr. Clark acknowledge receipt of our instructions. I instructed him to discontinue making contracts, to increase the price one cent a gallon, making 9...
