George W. Wilcox, Inc. v. Shell Eastern Petroleum Prods., Inc.

• Decision Date: 29 June 1933
• Citation: 186 N.E. 562,283 Mass. 383
• Parties: GEORGE W. WILCOX, Inc., v. SHELL EASTERN PETROLEUM PRODUCTS, Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

283 Mass. 383

186 N.E. 562

GEORGE W. WILCOX, Inc.,

v.SHELL EASTERN PETROLEUM PRODUCTS, Inc.

Supreme Judicial Court of Massachusetts, Franklin.

June 29, 1933.

Exceptions from Superior Court, Franklin County.

Action by George W. Wilcox, Inc., against Shell Eastern Petroleum Products, Inc. On motion of the defendant, the judge entered a verdict for defendant, and plaintiff and defendant both bring exceptions.

Exceptions overruled.

C. Fairhurst and Stoddard, Ball & Bartlett, all of Greenfield, for plaintiff.

Pillsbury, Dana, Young & Moulton, of Boston (S. H. Pillsbury and F. E. Allison, both of Boston, of counsel), for defendant.

DONAHUE, Justice.

The plaintiff conducts in Greenfield the business of selling gasolene, oil, automobiles and automobile supplies, and a service station and repair shop. In March, 1929, it made a written contract with the Gulf Refining Company by which that company agreed to sell and the plaintiff to purchase gasoline for use in the plaintiff's plant during a three-year period beginning in March, 1929. The defendant is engaged in the sale and distribution of gasolene and other petroleum products in New England and other Atlantic States. On June 14, 1929, a written instrument was signed on behalf of the plaintiff by its president and in the name of the defendant by one Algar, who was an assistant district manager of the defendant. The plaintiff has brought suit on this instrument. The answer of the defendant includes a denial of the signature, execution and delivery of the instrument by the defendant and a specific denial of the authority of Algar to sign, seal, execute or deliver it.

The case was tried before a jury in the superior court. In answer to written questions submitted by the judge the jury found that Algar had authority to bind the defendant by signing the instrument in its behalf, that the plaintiff was excused by acts of the defendant from procuring a release from the plaintiff's contract with the Gulf Refining Company as required by the plaintiff's contract with the defendant and that the defendant broke its contract with the plaintiff, the plaintiff not being in default. The jury returned a verdict for the plaintiff in the sum of $50,083 the judge having reserved leave with the assent of the jury under G. L. (Ter. Ed.) c. 231, § 120, to enter a contrary verdict. On motion of the defendant the judge entered a verdict for the defendant. The plaintiff's exception to this action of the judge is here presented by a bill of exceptions. The defendant has also filed a bill of exceptions setting forth exceptions taken by it to the refusal of the judge to give certain requested rulings and to the admission of certain testimony during the course of the trial. The defendant agrees that if the plaintiff's exceptions are overruled the exceptions taken by the defendant become immaterial.

The instrument recites in its preamble that the plaintiff ‘operates a filling station at 100 Federal Street in said Greenfield, and is selling products of the Gulf Refining Company’; that the plaintiff ‘is at the present time under what appears to be a written contract obligating it to continue to sell Gulf products at said filling station until approximately March, 1932’; that ‘the parties hereto have entered into certain negotiations with regard to the sale’ by the plaintiff of the defendant's products; and that the defendant ‘expects to acquire land on West Main Street in said Greenfield and construct thereon a modern well equipped service station and will apply either directly or indirectly for a permit from the town authorities to operate said station.’ The instrument provides that ‘in the event that the * * * [plaintiff] shall obtain a release of its written contract with the Gulf Refining Company prior to the time that the West Main Street Station of the * * * [defendant] is ready for occupancy, the parties hereto will enter into an agreement containing the following provisions.’ Then follow five numbered paragraphs which provide (1) that the plaintiff ‘shall have the exclusive right to sell within the limits of the Town of Greenfield the * * * [defendant's] gasoline and lubricating products, and the * * * [defendant] will not either directly or indirectly operate any filling station in said Greenfield on its own behalf’; (2) that the defendant ‘will sell gasoline to the * * * [plaintiff] at the same price based upon its retail service station price as is now provided in the * * * [plaintiff's] contract with the Gulf Refining Company’; (3) that the defendant ‘will pay for all newspaper and billboard advertising and will pay a portion of the cost of direct mail advertising’; (4) that the defendant ‘will give to the * * * [plaintiff] the option to rent at such price as may be later determined, not exceeding per year six per cent. of its real estate investment (exclusive of the cost of equipment) its service station on West Main Street * * * Greenfield, provided that a permit shall be granted by the Greenfield Board of Selectmen, for the sale of petroleum products at said station’; (5) that ‘the agreement to be entered into between the parties hereto as provided above shall cover the period of five years from the date thereof with the privilege on the part of the * * * [plaintiff] to renew said contract for a further period of five years.’ At the time the instrument was signed on June 14, 1929, the defendant had an option to purchase the land referred to in the instrument for $30,000. The option by its terms expired June 27, 1929, and was not renewed. The defendant never purchased that land but later built a station on the opposite side of West Main street which was put into servicein the summer of 1930. A few days after the day when the instrument was signed the president of the plaintiff corporation went with his attorney to the office of the Gulf Refining Company in Boston and requested a release from the contract. He went there again in November, 1929, and a representative of that company estimated that the plaintiff would have to pay $25,000 or $30,000 to get out of its contract but no definite offer was made. No release was ever obtained.

The fact that the parties agreed in the instrument that there should be a later formal contract while not conclusive on the question whether they intended earlier to be bound or to what extent they intended to be so bound, Donovan v. Freeman, 263 Mass. 561, 161 N. E. 606, tends to indicate the intent that their final contract was to be the binding expression of all their completed negotiations, Lyman v. Robinson, 14 Allen, 242, 254;Doten v. Chase, 237 Mass. 218, 220, 129 N. E. 363. The nature of their mutual undertakings takings and the circumstances existing at the time of the signing of the indenture and reasonably to be anticipated at that time point toward the same conclusion. The defendant was to give the plaintiff the exclusive right to sell the defendant's gasolene and petroleum products within the limits of the town of Greenfield in any event for a period of five years and, at the option of the plaintiff, for five years more. The relationship which the...