Clement v. Producers' Refining Co.

• Decision Date: 02 December 1925
• Docket Number: (No. 773-4375.)
• Citation: 277 S.W. 634
• Parties: CLEMENT v. PRODUCERS' REFINING CO.
• Court: Texas Supreme Court

Page 634

277 S.W. 634

CLEMENT v. PRODUCERS' REFINING CO.

(No. 773-4375.)

Commission of Appeals of Texas, Section A.

December 2, 1925.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Action by W. J. Clement against the Producers' Refining Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals (270 S. W. 206), and plaintiff, deeming relief insufficient, brings error. Affirmed in part, and reversed in part, and remanded.

Stuart, Bell & Moore, of Gainesville, for plaintiff in error.

Phillips, Trammell & Chizum, of Fort Worth, and H. O. Caster, of Bartlesville, Okl., for defendant in error.

BISHOP, J.

W. J. Clement, plaintiff in error, and the Home Petroleum Company entered into the following written contract:

                         "Home Petroleum Company
                      "Fort Worth, Texas, January 13, 1916
                

"W. J. Clement, Gainesville, Texas — Dear Sir: You are hereby appointed agent for the Home Petroleum Company at Gainesville, effective December 1, 1915. Your duties will be to sell and distribute there, and in the territory hereafter designated by us in writing as tributary thereto, the goods and products which you may be supplied by the company, to collect accounts due or which may become due the company in that locality, to look after and properly care for all property of the company which may be placed in your charge, to make reports and perform other duties as may be required by the company from time to time, and to faithfully and accurately account for all funds, goods, products, and property of every kind belonging to the company coming into your possession or under your control, and all indebtedness from you to the company shall be payable at home office.

"Prices: You are to be governed strictly in making sales by the prices fixed by our general manager in writing, and, whenever your commission is divided with the buyer, this appointment is revocable.

"Remittances: It will be your duty to remit daily, unless otherwise instructed, the proceeds of all collections.

"Bonds: You will be required to give bond in an approved surety company for $500, to be paid for by the company.

"Compensation: In full payment for all your services and for the further consideration of your bearing all expenses incident to the operation of Gainesville station, except freight, license, and taxes, you will receive the following commissions: Home gasoline, .015; Homelite kerosene, .0200; Home auto oil, 15 per cent.; Rex auto oil, 15 per cent. An additional commission of one-half cent per gallon Homelite kerosene and one-fourth of one cent on Home gasoline will be allowed on deliveries made to the country towns outside of Gainesville. This agreement is to remain in effect for twenty-four months from date, with the privilege of renewal for twenty-four months. That are authorized to be sold by you through Gainesville Agency. It is further understood that your commission is based on less than carload sales only, and that no commission is to be paid on carload sales, unless agreed to in writing by the employee and general manager, prior to the date such sale is made. The commission herein agreed upon is for compensation for all other services rendered by said employee for Home Petroleum Company.

"Transfers: Commission of one-half cent per gallon on gasoline, naphtha, and kerosene, one cent per gallon on lubricating oils, and five cents per case on case goods is allowed.

"This cancels all agreements, verbal or written, as to remuneration or employment, heretofore existing.

"Kindly sign the acceptance clause below, and return one of the duplicate parts of this letter. It will then operate as our contract.

"Not subject to cancellation.

                          "Home Petroleum Company
                     "By Hugo H. Hoevel, Sec'y and Mgr
                

"I accept the appointment and agree to all the terms and conditions in the foregoing.

                                   "W. J. Clement, Agent."
                

Thereafter the Home Petroleum Company was dissolved, and defendant in error, Producers' Refining Company, took over its business, including this contract. There is evidence showing that under the terms of the contract Clement, at considerable expense, furnished equipment, barrels, horses, wagons, and trucks, which he used in the conduct of the business, and that under his management the business increased until the commissions to which he was entitled amounted to several hundred dollars per month. On about the 29th of September, 1917, he was discharged by the Producers' Refining Company.

He sought in this suit to recover commissions on sales of goods and products which he had made, and also for damages for wrongful discharge. The trial court directed a verdict in his favor...