Gilmore v. Texas Co.
| Decision Date | 14 July 1930 |
| Citation | 129 So. 587,100 Fla. 169 |
| Parties | GILMORE v. TEXAS CO. |
| Court | Florida Supreme Court |
Error to Court of Record, Escambia County; C. M. Jones, Judge.
Action by S.E. Gilmore against the Texas Company. Judgment for defendant, and plaintiff brings error.
Reversed.
D. W. Berry, of Pensacola, for plaintiff in error.
E. C Maxwell, of Pensacola, for defendant in error.
In this case the plaintiff in error was a gasoline dealer running three filling stations in Escambia county, outside the city limits of Pensacola.
There was a contract between the parties for the purchase and sale of gasoline to be used at the three stations owned by the plaintiff in error. The provisions in the contract as to price were as follows:
'Price Seller's tank wagon price, current date of delivery, less a discount of two and one-half (2-1/2¢ ) per gallon, said discount to be allowed only in the event that actual deliveries hereunder amount to not less than
within a calendar month.'
The suit was for an overcharge of one cent per gallon for gasoline sold and delivered to the plaintiff in error by the defendant in error between May 9 and July 9, 1928, amounting to 41,912 gallons of gasoline and amounting to $419.12.
The declaration which the plaintiff in the court below stood on was one in assumpsit, containing, amongst others, common counts for money paid by the plaintiff for the defendant at defendant's request; money received by the defendant for the use of the plaintiff. In Cullen v. S. A. L. R Co., 63 Fla. 122, 58 So. 182, this court say:
'A common count for money payable to the plaintiff for money had and received by the defendant for the use of the plaintiff is applicable in all cases where the defendant has obtained money which ex aequo et bono he ought to refund.
'A common count for money had and received lies for money paid by mistake or upon a consideration which has failed, or for money obtained through imposition, express or implied, or extortion or oppression, or an undue advantage taken of the plaintiff's situation, contrary to laws made for the protection of persons under these circumstances.'
The evidence shows that during the period involved in this suit the defendant in error was engaged in the business of selling gasoline at wholesale in Pensacola and in Escambia county that the city of Pensacola imposed a city tax of one cent per gallon on gasoline sold within the city; that the wholesale dealers in gasoline added the state tax and the city tax to their tank wagon prices, and collected both the state tax of 5 cents per gallon and the city tax of one cent per gallon. The state tax was not entered on the bill separate from the wholesale price of the gasoline, and it is explained in the record, the dealer was required to pay the 5 cent state tax on all gasoline, and therefore there was no necessity of making a separate entry on each charge of the amount of the state tax. But the city tax was entered separately on bills for gasoline sold to service stations within the city limits. When the gasoline was delivered to the purchaser, the plaintiff in error here, whose stations were just outside the city limits, the gasoline was billed to him at 21 cents per gallon...
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...143 So. 759, 152 So. 1; Citizens' Bank of Ft. Myers v. First National Bank of Waynesboro, 101 Fla. 908, 132 So. 478; Gilmore v. Texas Co., 100 Fla. 169, 129 So. 587; Liddon v. Hatton, 64 Fla. 361, 60 So. 340; Cullen v. Seaboard Air Line Railway Co., 63 Fla. 122, 58 So. 182. This rule, howev......
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... ... 122, 58 ... So. 182; Willis v. Fowler, 102 Fla. 35, 136 So. 358; ... Citizens' Bank v. First Nat. Bank, 101 Fla. 908, ... 132 So.478; Gilmore v. Texas Co., 100 Fla. 169, 129 ... So. 587; Love v. Brown Development Co., 100 Fla ... 1373, 131 So. 144 ... It has ... also been ... ...
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