Gulf Refining Company v. Williams Roofing Company

• Decision Date: 26 March 1945
• Docket Number: 4-7558
• Citation: 186 S.W.2d 790,208 Ark. 362
• Parties: Gulf Refining Company v. Williams Roofing Company
• Court: Arkansas Supreme Court

186 S.W.2d 790

208 Ark. 362

Gulf Refining Company v. Williams Roofing Company

No. 4-7558

Supreme Court of Arkansas

March 26, 1945

Appeal from Pulaski Chancery Court; Frank H. Dodge, Chancellor.

Affirmed.

E W. Moorhead, for appellant.

Thweatt & Stubblefield, for appellee.

OPINION

Millwee J.

This suit was filed in the Pulaski Circuit Court and later transferred to chancery. Appellant, Gulf Refining Company, seeks to recover $ 975.84 from appellee, Williams Roofing Company, which amount was deducted and withheld by appellee from its running account with appellant. The account was based on invoices showing the sale of oil products and services by various authorized retail dealers of appellant. Under the arrangement between the parties, these invoices were assigned to appellant by the various Gulf retail dealers who obtained credit from appellant upon their purchases of gasoline and other oil products.

On July 24, 1939, B. J. Dixon, who had charge of the trucks of appellee, wrote the Gulf Company in Little Rock stating that his company operated several trucks out on the road and requested that appellant issue eight courtesy or credit cards for the use of the drivers of these trucks. In response to this request, the credit cards were issued, numbered one to eight, respectively. The face of each card contained the customer's name, registered number, and address which were placed on the card by addressograph plate by appellant, together with the card or serial number which was placed thereon by appellant by typewriter. Upon receipt of the cards and before delivery to the truck drivers, Dixon wrote across the face of each card "Good for Truck Only" by typewriter. The reverse side of each card contained a provision that the registered holder assumed full responsibility for payment for all merchandise or services obtained on credit by any person through its presentation, and that loss or theft of the card be immediately reported.

The truck drivers of appellee would present the credit card to authorized Gulf retail dealers in purchases of Gulf products on credit. Upon presentation of the card the dealer prepared an invoice upon printed forms furnished or approved by appellant by writing in the spaces provided therein the date, the customer's number, name and address, the card or serial number, the license number of the vehicle and the quantity and price of the merchandise purchased. This invoice would then be signed by the truck driver. The dealer would then sign the printed form appearing on the invoice assigning "the within account" to appellant. These invoices were sent to appellant by the dealer and appellant would forward monthly statements to appellee for payment.

Gerald Huckaby was the driver of one of appellee's trucks which had the name "Williams Roofing Co." and "No. 4" printed on the truck. On the night of September 5, 1939, Huckaby purchased two quarts of oil from the Bradley Service Station, Gulf dealer in Jackson, Mississippi, and delivered credit card No. 4 to the dealer's employee. This employee took the card into the service station to make out the invoice which Huckaby signed. The credit card was not returned to Huckaby and he left without it. The following day he stopped at the service station and asked for his credit card, and was informed by another employee that the card could not be located at the station, but that he would obtain it from the employee who had waited on Huckaby the night before and mail the card to appellee at Little Rock. B. J. Dixon testified that he notified the Little Rock office of appellant of the loss of the card by Huckaby a week or ten days later when the card did not arrive. The employees of appellant denied receiving such telephone call or notice.

The employee of the service station who waited on Huckaby embezzled the credit card and embarked on a 90-day orgy of buying from Gulf dealers in Mississippi towns by presentation of the stolen card and forgery of the name of Gerald Huckaby as "Geral Huckaby." There were 223 of these forged invoices aggregating $ 975.84, which form the basis of this suit. The forger was at all times driving a 1934 Plymouth coach passenger automobile bearing a Mississippi license number. Most of the transactions occurred in small towns in Mississippi located near each other. Some of the dealers knew the forger and he had lived in several of the towns where purchases were made. Tires were sold for a passenger automobile and in some cases of a different size than was required by the vehicle the forger was driving. One dealer sold him two radios, one for his car and the other for his house, which were charged as tires and gasoline and the house radio was never delivered. Charges were made for 20 gallons of gasoline when the capacity of the car the forger was driving was only 15 gallons. In several instances cash was delivered upon false invoices made out for merchandise. Most of the invoices had a fictitious license number written in by the dealer which was different from the license number upon the automobile driven by the impostor.

Appellee paid its account for the months ending September 25 and October 25, 1939, which included forged invoices amounting to $ 275 without discovery of these forgeries. In checking their account for the month ending November 25, 1939, the forgeries were discovered and on December 6, 1939, appellee notified appellant that there seemed to be about $ 700 charged for merchandise upon such forged invoices and this account was not paid. On January 9, 1940, appellee wrote appellant referring to their letter of December 6, 1939, and claimed credit on their account for $ 975.84 which included the $ 275 already paid. In response to a letter from the auditor of appellant requesting a verification of the account as stated in such letter, appellee on January 25, 1940, answered this request by denying the correctness of the account and again claimed credit for the full amount of the forged invoices.

Appellant alleged and now contends that the basis of this suit is an account stated for $ 975.84. We do not agree. It is well-settled that to constitute an account stated there must be an agreement, express or implied, on the part of the debtor that the account is correct. Brown v. Southern Grocery Co., 168 Ark. 547, 271 S.W. 342, 40 A. L. R. 383; Bell Lumber Co. v. Alewine, 163 Ark. 164, 259 S.W. 373; Godfrey v. Hughes & Hall, 114 Ark. 312, 169 S.W. 958; 1 C. J. S. 707; 1 Am. Jur. § 28, p. 277.

Under the proof herein there was neither an express nor implied agreement on the part of appellee that $ 700.84 of the account was correct. On the contrary, appellee consistently disputed this part of the account from the time it discovered the forged items which it contained. The balance of $ 275 which was paid before discovery of the forgeries represents an account stated, correctness of which was impliedly admitted by the payment thereof. But an account stated may be surcharged and corrected for errors or mistakes. In the case of Loewer v. Lonoke Rice Mill, 111 Ark. 62, 161 S.W. 1042, it was stated: "An account in which items have been entered or omitted through fraud, mistake, accident, or undue advantage, may be falsified or surcharged even after there has been a settlement and payment of the balance found due. But one who seeks to falsify or surcharge an account for fraud, etc., must proceed within a reasonable time after the fraud has been discovered, and the onus is upon him to establish the fraud by clear and convincing evidence."

It was also held in Continental Supply Company v....