Cue Oil Co. v. Fornea Oil Co., 37450

• Decision Date: 10 April 1950
• Docket Number: No. 37450,37450
• Citation: 45 So.2d 597,208 Miss. 810
• Parties: CUE OIL CO. v. FORNEA OIL CO., Inc.
• Court: Mississippi Supreme Court

Page 597

45 So.2d 597

208 Miss. 810

CUE OIL CO. v. FORNEA OIL CO., Inc.

No. 37450.

Supreme Court of Mississippi, in Banc.

April 10, 1950.

Gex & Gex, Bay St. Louis, Weaver Gore, Jackson, for appellant.

J. E. Stockstill, Picayune, for appellee.

LEE, Justice.

Fornea Oil Company sued Cue Oil Company to recover a sum of money. From a jury verdict for the amount sued for, and a judgment thereon, the latter appeals.

Appellee was a partnership, handling Sinclair products, with a bulk plant in the Town of Picayune. The appellant was a corporation, handling Shell products, with its principal office at Bay St. Louis, and having a bulk plant also in the Town of Picayune, with one Taylor as its agent over the bulk plant. This agent worked on a commission basis. The appellant delivered Shell products to him at its bulk plant. His sole duties were to sell and deliver these products at retail stations, collect the money, and remit to the home office. In the case of approved customers, he simply delivered the products, and those customers made their remittances direct to the company. Taylor had no authority whatever to buy these products, or any products for the bulk plant.

Taylor had an independent service station, and he could, for that station, buy or use whatever products he desired.

Over a period of about ten days in the latter part of July, 1947, Taylor, from appellee's bulk plant, obtained about eight loads of gasoline, aggregating 4,200 gallons, and other products, of the value of $799.47. These were Sinclair products, and were delivered into his tank truck, on which Shell was painted. Appellee claimed that this was a loan, because Taylor represented that appellant's delivery truck was broken down. On the contrary, appellant asserted that its delivery truck was not broken down,--that it delivered the products when and as it became necessary, and that public transports were available in that contingency. In the first place, Taylor had no right to borrow, but, in the second place, if he had done so and used such borrowings for appellant's benefit, there would have been an overplus in his account. Instead of an overplus, Taylor was always in arrears--he did not account for all the products which appellant sent him.

Appellee undertook to show that interchange of petroleum products had taken place previously. Once or twice, Taylor's predecessor borrowed gasoline from another company, but it was returned on the following day, and appellant had no notice thereof. Another instance of like import was shown, but appellant was not apprised of this transaction. Appellee offered proof of several like deals, as where they would lend today and a return would be made tomorrow. But in none of these cases was there any proof that these deals were called to the attention...