Jewell v. Shell Oil Co.

• Decision Date: 19 April 1933
• Docket Number: 24026.
• Citation: Jewell v. Shell Oil Co., 172 Wash. 603, 21 P.2d 243 (Wash. 1933)
• Parties: JEWELL v. SHELL OIL CO.
• Court: Washington Supreme Court

21 P.2d 243

172 Wash. 603

JEWELL v. SHELL OIL CO.

No. 24026.

Supreme Court of Washington

April 19, 1933

Department 2.

Appeal from Superior Court, Cowlitz County; Homer Kirby, Judge.

Action by Bert Jewell against the Shell Oil Company. From an order granting a new trial after a verdict in favor of the defendant, the defendant appeals.

Judgment reversed, and cause remanded with directions.

Hyland, Elvidge & Alvord, of Seattle, and Charles H. Paul, of Longview, for appellant.

W. H Sibbald, of Kelso, for respondent.

MAIN Justice.

This action was brought to recover rent for a gasoline station which, it was alleged, was due and unpaid, and also damages for alleged fraudulent representations. The defendant denied liability, and, as to the cause of action for rent affirmatively pleaded payment. The cause was tried to the court and a jury, and, at the conclusion of the evidence of the plaintiff, the defendant challenged the sufficiency thereof and moved for a directed verdict. This motion was denied as to the cause of action for rent and sustained as to the cause of action for alleged fraud, and that charge was withdrawn from the consideration of the jury. At the conclusion of all the evidence, the defendant renewed its challenge and asked for a directed verdict as to the cause of action for rent; which motion was overruled. The cause was submitted to the jury and a verdict was returned in favor of the defendant. The plaintiff moved for a new trial; which motion was sustained. The defendant appeals from the order granting the new trial.

The facts are these: The respondent, Bert Jewell, was the owner and operator of a gasoline station on the Pacific Highway about one mile north of the city of Kelso. The appellant, the Shell Oil Company, is a corporation extensively engaged as a wholesaler and distributor of motor oils and gasoline; one of its division offices being in the city of Seattle. May 20, 1929, by written contract, the respondent leased his gasoline station to the appellant for a period of five years, and by the terms of the lease the station was to be operated by him. In the lease, it was provided that the respondent should sell exclusively the appellant's products. Paragraph four of the lease provided that the price of gasoline purchased by the respondent should be the 'Tank Wagon price for commercial gasoline as determined and posted at Lessee's depot located at Kelso, Washington.' The paragraph of the lease that covered the rental of the station was this: 'The Rental for said equipment shall be a sum equivalent to 4 cents for each gallon of Shell gasoline purchased by the Lessor from the Lessee herein during the term of this agreement, said sum to be credited to the Lessor on each month's merchandise statement for the previous month's purchases.'

By this provision it will be seen that the respondent, for the rental of his station, was to receive gasoline at 4 cents per gallon less than the tank wagon price as posted at Kelso, and this sum was to be credited to the respondent on each month's statement for the previous month's purchases. The parties began operating under the lease and continued for about a year and seven months when the respondent sold his station and thereafter brought this action, claiming that the rent had not been paid.

The price of gasoline, as posted at Kelso, was determined by the division office at Seattle, which, from time to time as the price of gasoline fluctuated, issued what is called 'Northern Division Refined Oil Prices.' This sheet contained a list of approximately sixty-five cities or towns in the state of Washington within the Northern Division where the appellant had local offices and depots for the local distribution of its products. Opposite the name of each city or town was the tank wagon price to be posted at that depot. During the time that the respondent was operating the station, he purchased from the appellant approximately 50,000 gallons of gasoline, and when each purchase was made, he paid cash therefor and received an invoice, which he signed. Upon the top line on the invoice, under the head of 'price,' was the posted tank wagon price at Kelso. On the next line was 4 cents, and, in figuring the amount he was to pay, the 4 cents was taken off of the price on the first line. In other words, if the price on the first line, the posted tank wagon price, was 18 1/2 cents, there was deducted from this 4 cents, and the respondent paid therefor 14 1/2 cents. The invoices show that for every gallon of gasoline purchased by the respondent he received at least a deduction of 4 cents from the tank wagon price as posted in Kelso. The respondent made no complaint or claim that he was not getting his rent by the deduction of the 4 cents, until approximately a year and seven months after the date of the contract when he was preparing to dispose of his station. The evidence shows without dispute that there was posted in a conspicuous place in the office of the appellant at Kelso, and also in its depot, the price of gasoline, and that this price corresponded with the price fixed by the refined oil price sheets sent out from the division office in Seattle.

The employee of the appellant, who was present when the respondent signed the contract, testified that the latter was told that, if he paid the price for the gasoline, the deduction of 4 cents would be made on each invoice to take care of the rent. This the respondent disputes. He says, however, that he did not at any time during all the months that he was operating the station demand his rent or complain that it was not being paid, because he did not need the money. Whether the trial court erred in granting the new trial depends upon whether, so far as the disposition of this appeal is concerned, there was evidence to take the case to the jury on the question of the rent, because, if there was no dispute in the evidence, there would be no question for the consideration of the jury. The fact that the lease provided that the 4 cents was to be credited on each month's merchandise statement for the previous month's purchases does not necessarily show that the rent had not been paid, even though no such statements were issued. The gasoline having been paid for in cash, there was no occasion for the monthly credit memorandum.

If the evidence shows without dispute that the rent was paid by the deduction of...