Cox, Inc. v. Humble Oil & Refining Co.

• Court: Texas Supreme Court
• Writing for the Court: Leddy
• Citation: Cox, Inc. v. Humble Oil & Refining Co., 16 S.W.2d 285 (Tex. 1929)
• Decision Date: 24 April 1929
• Docket Number: (No. 1043-5238.)
• Parties: COX, Inc., v. HUMBLE OIL & REFINING CO.

Page 285

16 S.W.2d 285

COX, Inc., v. HUMBLE OIL & REFINING CO.

(No. 1043-5238.)

Commission of Appeals of Texas, Section B.

April 24, 1929.

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

Suit by Cox, Incorporated, against the Humble Oil & Refining Company, in which defendant filed a cross-action. Judgment for plaintiff was reversed and case remanded by the Court of Civil Appeals , and plaintiff brings error. Reversed, and judgment of trial court affirmed.

Touchstone, Wight, Gormley & Price, of Dallas, for plaintiff in error.

Davis, Synnott & Hatchell, of Dallas, for defendant in error.

LEDDY, J.

We adopt the following statement of the case made by the Court of Civil Appeals :

"This suit (commenced March 3, 1923) by appellee against appellant was for damages in the sum of $9,000, which appellee alleged it suffered because of a breach by appellant of a parol contract alleged by the former to have been entered into between them or on about April 15, 1922 (appellant acting by its `duly authorized agent,' one Monroe), and to have been as follows:

"`That plaintiff (appellee) would purchase all gasoline to be used by plaintiff in its business of operating a filling station on the following terms: That it would pay to the defendant (appellant) for such gasoline three cents less than the retail price of such gasoline; that such retail price would be considered to be two cents less than the retail price posted by the Texas Company and the Magnolia Petroleum Company in Dallas, Tex.; that said contract would continue in effect as long as the latter companies should grant what is known as a commercial discount, which is a term used in Dallas and vicinity by the oil trade to indicate a discount to users of gasoline in quantities, as, for instance, a business concern using a fleet of trucks.'

"Appellee alleged that, after it and appellant so contracted, they `continued to operate under such agreement up to and including April 28, 1922, upon which date the defendant refused to proceed under such contract,' and, after alleging that the Texas Company and Magnolia Petroleum Company had `continued up to this date (quoting) to grant the "commercial discount,"' alleged as follows:

"`That for gasoline purchased between April 28, 1922, and May 27, 1922, this plaintiff has settled with the defendant on the basis of said agreement. That between May 27, 1922, and April 15, 1923, plaintiff has used in its filling station 350,000 gallons of gasoline. That plaintiff would have used in its filling station 450,000 gallons of gasoline had defendant complied with its contract and furnished the gasoline as agreed, for the reason that it would have been unable (able?) thereby to undersell its competitors. That at all times during the period between May 27, 1922, and March 1, 1923, the usual and customary discount granted to purchasers of gasoline at wholesale upon the market in Dallas was 3 cents per gallon. That the difference between the market value of gasoline at wholesale in Dallas and the agreed price under the agreement hereinabove set out was 2 cents per gallon on each day upon which plaintiff was compelled to purchase gasoline.'

"Appellant's answer consisted of a general demurrer, a general denial, and a special plea denying that it or any one authorized to act for it contracted as alleged by appellee; and by a cross-action appellant sought a recovery against appellee of $618.56, which, it charged, was the balance due it on an open account for goods it sold and delivered to appellee during a period beginning April 15, 1922, and ending May 27, 1922. On special issues submitted to them the jury found as follows: (1) That appellee and appellant, the latter acting by its agent one D. T. Monroe, on or about April 15, 1922, entered into an agreement whereby appellee was to purchase of appellant the gasoline it (appellee) sold at retail. (2) Said agreement provided for a differential to appellee of three and two cents, or five cents, `under the posted market prices of the Magnolia Oil Company, the Texas Company, and other big oil companies.' (3) By the terms of the agreement, the differential was to continue `for a period (quoting) of one year, or as long during such year as the Texas Company and Magnolia Petroleum Company should grant what is known as the commercial discount of two cents. (4) That said Monroe, at the time he acted for appellant had `apparent authority (quoting) to make such agreement as he made.' (5) That neither the Texas Company nor the Magnolia Petroleum Company `effectively discontinued such commercial discount at any time during the year following the making of such agreement.' (6) Appellant, `prior to the cessation of purchases' by appellee, `under the alleged contract, refused to continue selling' appellee on the basis of the alleged two and three or five cents per gallon differential. (7) Appellee was damaged in the sum of $3,500 `by reason of the refusal' of appellant to furnish gasoline to it `at the alleged differential of 5 cents per gallon during the year following the making of said agreements.' The court having rendered judgment in favor of appellee against appellant for the sum found by the jury, the latter prosecuted this appeal."

The Court...