Fox v. Churngold Corp.
| Decision Date | 11 June 1956 |
| Citation | 136 N.E.2d 754,101 Ohio App. 368 |
| Parties | , 1 O.O.2d 309 Carl FOX, Plaintiff-Appellee, v. The CHURNGOLD CORPORATION, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Dinsmore, Shohl, Sawyer & Dinsmore, William A. Georghegan, Cincinnati, for defendant-appellant.
Aug, Elder & Reilly, Cincinnati, for plaintiff-appellee.
The plaitiff-appellee obtained a verdict for $3,500, and a judgment thereon, as the result of a trial of issues raised by an amended petition and an answer thereto. The defendant has appealed on law from that judgment.
In his amended petition the plaintiff alleged that he was the owner of a certain Ford Tractor, and that on February 1, 1954, he entered into a written lease under the terms of which he was to furnish said tractor to haul the defendant's products on such schedules and to such places as defendant designated, and would pay all the cost of operation of the tractor in consideration of which the defendant agreed to pay plaintiff the sum of thirteen cents for each mile traveled, for a period of one year with the proviso that at the end of one year it would be automatically renewed for an additional year unless a five days written notice of cancellation was given by either party to the other.
The plaintiff also alleged that plaintiff obligated himself to furnish a suitable driver, acceptable to the plaintiff, for the Ford tractor, and defendant obligated itself to pay the driver directly as a regular employee of the defendant. He also alleged that it was orally agreed that he should be the driver and he was accepted by the defendant as such.
It was also alleged in the amended petition that defendant would pay plaintiff '14 1/2 cents a mile on the lease and 6 cents as a driver.
It was also alleged that defendant orally agreed that it would 'Guarantee the plaintiff a minimum of 1000 miles a week operation of his tractor under the lease and as driver.'
Finally, it was alleged that he had fully performed all his obligations under the contract, and was ready, willing, and able to continue to perform, but that defendant violated its obligation by notifying him on July 8, 1954, and thus before the expiration of one year, that it was cancelling said lease and would not continue to perform after July 14, 1954, and did in fact refuse, and failed to perform thereafter, and that he had been damaged in the sum of $5,772.50.
By answer the defendant admitted the plaintiff's ownership of the Ford Tractor and that, on February 1, 1954, it entered into a written lease thereof, whereby the plaintiff agreed to pay all the cost of operating the said tractor and that defendant agreed to pay 13 cents per mile for the use of the tractor and the sum of 7 1/2 cents per mile for his services as its driver, and admits that it notified the plaintiff on July 8, 1954, of its intention to cancel said lease and on July 14, 1954 did cancel said lease.
The defendant did not admit that the lease provided for a leasehold of one year with an automatic renewal for an additional one year unless 5 days written notice was given, and quoted section 9, and alleged as a conclusion that it provided for an option to terminate the relation at any time upon 5 days notice. The answer closed with a general denial of all allegations not specifically admitted.
At the trial, the plaintiff, without objection, introduced the written lease or agreement of February 1, 1954. This writing begins with the recital that the agreement or lease is between 'Carl Fox, of Guilford, Indiana, hereinafter called 'Lessor,' and The Churngold Corporation having its principal office in Cincinnati, Hamilton County, Ohio, hereinafter called 'Lessee,' Witnesseth that--' Then, after describing the Ford tractor, proceeded as follows:
'The above described vehicle, is in good mechanical condition and is suitable for the transportation of Margarine and other commodities.
'Now Therefore Be It Agreed As Follows:
'1. In consideration of payment by Lessee to Lessor of the sum of 13 cents per mile operated or used, Lessor hereby agrees to lease vehicle to Lessee.
'2. Lessee will have complete domination and control over said vehicle or vehicles, during the full period of the lease and shall direct the operation of the vehicle, or vehicles, in all respects such as loading, unloading, reloading, departure, return time, route to use, etc.
'3. Lessor shall furnish all gasoline, oil, grease and other fuels and shall keep the vehicle, or vehicles, in good and serviceable condition.
'4. Lessee agrees to employ a suitable driver who shall be registered as a regular employee of Lessee and shall receive his compensation directly from Lessee who shall pay Social Security Tax, Workmen's Compensation Insurance and make deductions for income tax and all other requirements as required by any governmental body.
'5. Lessee further agrees to provide public liability and property damage insurance, which policy shall be made payable to the Lessor & Lessee, as their interest may appear.
'It is further understood and agreed that fire and theft insurance coverage shall be maintained by the Lessor.
'6. Lessor shall pay for and provide license plates and, in the event the license tax falls due during the period of said lease, the lease shall automatically become null and viod should Lessor fail to provide suitable license as required for the vehicle, or vehicles.
'7. It is further agreed by and between Lessor and Lessee that no name or marking shall be displayed upon the vehicle or vehicles, subject to this lease other than the name of the Lessee should it so desire.
'8. It is further agreed by and between the parties hereto that the compensation for the use of vehicle, shall be paid by Lessee to Lessor weekly.
'9. It is further agreed that this agreement shall cancel all previous lease agreements between the parties and shall remain in effect for a period of 1 year from the date executed and from year to year thereafter, but may be cancelled on five (5) days' written notice from one party to the other.'
A comparison of the terms of this lease with the allegations of the amended petition discloses at once that it fails to support the allegations of the amended petition in the following respects:
(1) There is no express provision for an unconditional lease for one year with an automatic renewal for another year, in the absence of five days' written notice of cancellation given by either party to the other.
(2) There is no provision giving the lessor the right to designate the driver of the tractor. That right is expressly granted to the lessee.
(3) There is no guarantee that the tractor would be operated 1000 miles per week.
(4) There is no...
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