Burnett v. Texas Co.
Decision Date | 29 March 1933 |
Docket Number | 281. |
Citation | 168 S.E. 496,204 N.C. 460 |
Parties | BURNETT v. TEXAS CO. |
Court | North Carolina Supreme Court |
Appeal from Superior Court, Columbus County; Small, Judge.
Action by W. L. Burnett, trading as Burnett Motor Company, against the Texas Company. From a judgment for plaintiff for less than the amount claimed, plaintiff appeals.
No error.
One agreeing to operate filling station and to make repairs and exonerate owner from all claims "arising from the existence of" equipment furnished, held precluded from recovering from owner for loss resulting from faulty operation of pumps.
The defendant owned a filling station near Chadbourn, and on or about December 12, 1930, entered into a written agreement with the plaintiff by the terms of which the plaintiff was to operate the filling station. The written instrument stipulates:
It was further provided that
The evidence tended to show that the plaintiff began the operation of the filling station and on May 11, 1931, brought this suit, alleging that the defendant had negligently furnished the plaintiff Wayne electric pumps for the sale of gasoline, but that such pumps were defective, in that they did not correctly measure gasoline purchased by customers and that, as a result of such defect, plaintiff had suffered loss in the sum of $1,500. It was also alleged that the defendant had required the plaintiff to buy it certain uniform for the sum of $13.
The defendant set up the written agreement as a bar to plaintiff's right to recover, and denied all negligence alleged in the complaint.
The plaintiff testified that the tanks were installed and had been used previously by another person, and that he was required to buy gasoline exclusively from the defendant, and was to receive two cents per gallon. He further testified that
Another witness for plaintiff testified about the tanks, and said:
The plaintiff further testified that, when he discovered that the equipment did not correctly measure gasoline, he made complaint to the defendant, and that it sent an agent to
The following issues were submitted to the jury:
By consent the court answered the first issue "Yes," the fourth issue, "13.12 with interest from April 31, 1931," and the jury answered the second issue "Yes," the third issue "$400," and the fifth issue "Yes." The court, being of the opinion that the answer to the fifth issue constituted a bar to recovery, rendered judgment that the plaintiff recover the sum of $13, with interest and costs, from which judgment the plaintiff appealed.
E. Manly Toon, of Whiteville, and Varser, Lawrence, McIntyre & Henry, of Lumberton, for appellant.
Powell & Lewis, of Whiteville, for appellee.
The records of this court and of courts generally, disclose a variety of contracts between oil companies and the operators of filling stations. The written contract between the parties specified that the defendant leased the equipment to the plaintiff "for installation and use." Although the contract further provided that the alleged lessee should keep the equipment in repair, nevertheless it was the duty of the defendant to furnish to the plaintiff equipment reasonably suitable for the purposes contemplated by the parties. The defendant was desirous of selling its products, if...
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