Magnolia Petroleum Co. v. Dubois

• Decision Date: 27 February 1935
• Docket Number: No. 8062.,8062.
• Citation: 81 S.W.2d 157
• Parties: MAGNOLIA PETROLEUM CO. v. DUBOIS.
• Court: Texas Court of Appeals

81 S.W.2d 157

MAGNOLIA PETROLEUM CO. v. DUBOIS.

No. 8062.

Court of Civil Appeals of Texas. Austin.

February 27, 1935.

Rehearing Denied March 13, 1935.

Appeal from District Court, Milam County; Graham Gillis, Judge.

Action by John H. Dubois against the Magnolia Petroleum Company. Judgment for plaintiff, and defendant appeals.

Reversed and rendered.

Henderson, Kidd & Henderson, of Cameron, and W. H. Francis, A. S. Hardwicke, and Russell Surles, all of Dallas, for appellant.

W. S. Barron, of Bryan, and E. A. Wallace, of Cameron, for appellee.

BLAIR, Justice.

Appellee sued appellant for damages arising out of the alleged breach of an employment contract. In the main the material facts were undisputed, which, together with the facts found by the jury, showed that by a written contract dated October 27, 1927, and renewed by a similar one, dated July 16, 1931, appellant employed appellee to sell its petroleum products at Cameron, Tex., on a commission basis; each contract expressly providing that it might be terminated at the will of either party, with or without cause.

In April, 1932, appellee and his son-in-law, W. W. Gunn, began negotiations with appellant whereby appellee agreed to surrender his then existing Cameron agency, and his right in connection with such employment to annuities, beginning after he reached the age of retirement at 65; and Gunn agreed to surrender a similar agency with appellant at Palestine, Tex., in consideration of appellant's agreeing to employ Gunn as its agent at Cameron and Rockdale, either as one agency, or, if found necessary, a separate agency would be operated by Gunn at Rockdale. It was also agreed that Gunn might or would employ appellee, who was nearing the age of retirement, upon terms satisfactory to themselves. The group insurance or annuities contracts provided by appellant for its employees were voluntary grants, and the contracts which covered appellee expressly provided that such plan should not be construed as giving any employee the right to be retained in the service of appellant for any definite period of time; and that discharge of any employee from service, with or without cause, terminated any right or claim of the employee to such insurance or annuities. Pursuant to such agreement or agreements, appellee surrendered his Cameron agency and his right to receive annuities on reaching the age of retirement; and Gunn likewise surrendered his similar Palestine agency. These transactions were consummated on August 1, 1932, and on which date a similar contract was executed by appellant, appointing Gunn to the Cameron agency naming several towns as tributary, but omitting any mention of Rockdale, although it was orally agreed at the time that Rockdale would be later added when it was determined whether it should be a part of the Cameron agency, or a separate agency operated by Gunn. This contract was for no definite period of time, but expressly provided that it might be terminated at the will of either party, with or without cause. Later, appellant refused to give Gunn the Rockdale agency; and still later, on February 1, 1933, appellant terminated Gunn's Cameron agency, presumably because of the disagreement over the Rockdale agency.

Appellee brought this action seeking to recover damages for breach of the verbal contract whereby he agreed to surrender his Cameron agency and his right to annuities after reaching the age of retirement, in consideration of appellant's agreement to give Gunn the Cameron and Rockdale agency. He alleged that by refusing to give Gunn the Rockdale agency, appellant repudiated its said verbal contract with appellee, entitling him "to rescind the verbal contract and to recover the value of the consideration so paid by him therefor," namely, the net commissions he would have earned from the date of the surrender of the Cameron agency on August 1, 1932, until he reached the age of retirement at 65; and the amount of the annuities he would have received during his life expectancy after reaching the age of retirement. Appellee further alleged in this connection that since appellant had not prior to the execution of said verbal contract terminated his Cameron agency, and had not indicated any purpose of doing so, it would be presumed that but for the execution of the verbal contract sued upon appellant intended to and would have continued his Cameron agency until he reached the age of retirement at 65, at which time his right to annuities would have matured.

The jury found that $3,123 would compensate appellee for loss of alleged commissions, and that $1,250 would compensate him for annuities he would have received after retirement; and judgment was accordingly rendered in his favor for $4,373.

Under the facts stated and the theory of recovery upon which appellee based his action, the trial court erred in refusing the motion of appellant for an instructed verdict. While it is true appellee alleged that his action was based upon a breach of the verbal contract to give Gunn the Rockdale agency, still, if effect be given to appellee's theory of recovery or measure of damages asserted, his action was necessarily based upon a breach of his Cameron agency as of date of...