Clement v. Producers' Refining Co.

• Decision Date: 04 February 1925
• Docket Number: (No. 6824.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 270 S.W. 206
• Parties: CLEMENT v. PRODUCERS' REFINING CO. et al.
• Court: Texas Court of Appeals

Page 206

270 S.W. 206

CLEMENT v. PRODUCERS' REFINING CO. et al.

(No. 6824.)^*

Court of Civil Appeals of Texas. Austin.

February 4, 1925.

Rehearing Denied March 4, 1925.

Appeal from District Court, Cooke County; C. R. Pearson, Judge.

Action by W. J. Clement against the Producers' Refining Company and others, in which the defendants filed a cross-action. From a judgment in his favor for less relief than demanded and dismissing without prejudice defendant's cross-action, plaintiff appeals. Affirmed.

Stuart, Bell & Moore, of Gainesville, for appellant.

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

BAUGH J.

On January 13, 1916, the Home Petroleum Company employed W. J. Clement under the following 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."
                

The Home Petroleum Company was thereafter dissolved, and succeeded by the Producers' Refining Company, which took over its business, including this contract. On or about September 29, 1917, the Producers' Refining Company discharged Clement. He then brought this suit for $25,000 damages for breach of the contract above set out. The Producers' Refining Company filed a cross-action for certain moneys which it claimed Clement had collected and not accounted for. The case was submitted to a jury on special issues, but after the evidence was closed and they had had the case under consideration for some 24 hours, the court permitted the Refining Company to withdraw its cross-action, and instructed the jury to return a verdict in favor of plaintiff for $465. This sum was for commissions due plaintiff for products sold while in appellee's employ. The court then rendered judgment for said sum, dismissed the Refining Company's cross-action, and denied plaintiff any recovery for breach of contract. From this judgment this appeal is prosecuted.

Opinion.

Appellant's brief is not prepared according to the rules, but we will consider the main questions raised on the appeal. The first issue presented is whether or not the contract above set out is enforceable. Appellee's contention is that it is unilateral, and therefore not binding on either party to it.

It is well settled that a contract to be valid must be mutual and binding upon both parties. H. & T. C. Ry. Co. v. Mitchell, 38 Tex. 85; Ft. Smith Couch & Bedding Co. v. George (Tex. Civ. App.) 222 S. W. 335; Clegg v. Brannan, 111 Tex. 367, 234 S. W. 1076. It will be noted that appellant was appointed agent at Gainesville "and in the territory hereafter designated by us in writing as tributary thereto." Other than in the city of Gainesville it thus appears that Clement's territory was a matter wholly at the discretion and option of his employer. In the absence of a designation he could claim no territory other than Gainesville, nor could he under said contract, in case of refusal by the company to designate any additional territory, compel it to do so. Hence, as to any additional territory, the contract lacked mutuality. However, if this were the only obstacle the contract would be binding anyway within the city of Gainesville. But no salary was to be paid, and the only compensation to which appellant was to receive was his commissions, as specified in the contract, on "the goods and products which you may be supplied by the company." Also the prices on such goods and products were to be determined entirely by the general manager of the company. Nowhere does the employer agree to furnish either a specific or ascertainable quantity of "goods and products" for sale by the agent. Nor does said contract provide that appellant should be furnished such quantity at...