Charles E. Russell Co. v. Carroll, 4050
| Decision Date | 09 March 1953 |
| Docket Number | No. 4050,4050 |
| Citation | 194 Va. 699,74 S.E.2d 685 |
| Court | Virginia Supreme Court |
| Parties | CHARLES E. RUSSELL COMPANY, INC. v. ROSA C. CARROLL. Record |
Bangel, Bangel and Bangel, for plaintiff in error.
Clyde W. Cooper, George H. Gray, for defendant in error.
Charles E. Russell Company, Inc., plaintiff, filed a motion for judgment in the Circuit Court of the City of Portsmouth against Rosa C. Carroll, defendant, seeking to recover rent money in the sum of $1,570 which had been paid by plaintiff to the defendant under protest.
The controversy grows out of the interpretation placed upon a written lease agreement signed by the parties. The lease was dated April 10, 1947, and was for a term of five years. The property involved was a gasoline service station located in the city of Portsmouth.
The contract was prepared by the plaintiff corporation and the clauses involved read as follows:
'Lessee agrees to pay as rent for said premises the sum of two (2) cents per gallon on all House-brand and Ethyl gasoline delivered to this location.
'Lessor agrees that if during the term of this lease the present dealer's margin on gasoline should become less than as of this date, lessor and lessee will get together and establish a rental return on a ratio and proportion basis in keeping with the decrease.'
Clause 20 of the lease provides: 'It is expressly understood and agreed by and between lessor and lessee that there is no verbal understanding or agreement which in any way changes the terms, covenants and conditions herein set forth; * * *'.
The service station in question, so far as the record shows, was unoccupied on April 10, 1947, the date of the lease. The plaintiff later subleased it to one Shelton Ferguson, and under plaintiff's interpretation 'the operator of the filling station' (Ferguson) was the 'dealer' mentioned in the contract and his margin of profit on gasoline at the time he subleased the station was six cents per gallon.
Plaintiff claims that on August 14, 1950, ' Plaintiff thus claims that the rent on the station should have been reduced from two cents per gallon for all gasoline delivered to the station to one cent per gallon and that it should be permitted to recover the sum of $1,570 excess rent paid under protest.
Defendant challenges the interpretation placed upon the contract by the plaintiff, contending that the contract was plain and unambiguous, and that parol evidence was not necessary to explain its terms.
This case has been tried twice. The evidence introduced on each trial was to all intents and purposes the same. On the first trial a jury verdict for the plaintiff in the amount sued for was set aside by the trial court on the ground that the jury had been improperly instructed.
The second trial proceeded as the first. Plaintiff introduced the contract and contended that Ferguson was the 'dealer' contemplated therein; that Ferguson purchased gasoline from the Russell company and retailed it to the public; that on account of the gas was Ferguson, the station operator, was forced to cut his profit from six cents to three cents on the gallon; that because Ferguson was suffering from the price war the Russell company wanted to help him and decided to try to have defendant reduce the rent and thus pass the savings on to Ferguson. Evidence was also introduced over defendant's objection to show that generally in the trade a station operator is considered a dealer, and the plaintiff, the Russell company, is generally termed a distributor or wholesaler.
Upon the completion of the evidence the court sustained defendant's motion to strike the evidence of the plaintiff. This resulted in a verdict for the defendant, on which judgment was entered by the court over plaintiff's objection. To this judgment we granted plaintiff a writ of error.
Two questions are presented by plaintiff in its assignments of error:
1. Did the lower court commit error in setting aside the verdict in the first trial and ordering a new trial, and
2. Did the court err in sustaining the defendant's motion to strike the plaintiff's evidence on the second trial and entering final judgment for the defendant.
The question raised by the first assignment can be answered in our treatment of the second....
To continue reading
Request your trial
-
NOELL CRANE SYSTEMS v. NOELL CRANE & SERVICE
...from ambiguity or doubt, the agreement between them furnishes the law which governs them.'" Id. (quoting Charles E. Russell Co., Inc. v. Carroll, 194 Va. 699, 703, 74 S.E.2d 685 (1953)). "Whether contractual provisions are ambiguous is a question of law and not of fact," making the resoluti......
-
McDevitt & Street Co. v. Marriott Corp.
...Bob Grissett Golf Shoppes, Inc. v. Confidence Golf Co., 44 B.R. 156, 159 (Bankr.E.D.Va.1984); Russell County v. Carroll, 194 Va. 699, 703, 74 S.E.2d 685, 687-88 (1953). In Virginia, it is settled beyond question that "where an agreement is complete on its face, is plain and unambiguous in i......
-
Winn v. Aleda Const. Co., Inc.
...a contract is clear and unambiguous, it is the duty of the court, and not the jury, to decide its meaning. Russell Co. v. Carroll, 194 Va. 699, 703, 74 S.E.2d 685, 688 (1953); Krikorian v. Dailey, 171 Va. 16, 24, 197 S.E. 442, 446 (1938); Lynnhaven Beach Co. v. Moore, 156 Va. 683, 690, 158 ......
-
Drummond Coal Sales, Inc. v. Norfolk S. Ry. Co.
...is free from ambiguity or doubt, the agreement between them furnishes the law which governs them." Charles E. Russell Co., Inc. v. Carroll, 194 Va. 699, 703, 74 S.E.2d 685, 688 (1953). There is little doubt that any claim and/or cause of action arising or accruing prior to the parties' exec......