Minter v. Mid-Continent Petroleum Corporation, 19804.

• Decision Date: 02 December 1940
• Docket Number: No. 19804.,19804.
• Citation: 147 S.W.2d 120
• Parties: MINTER v. MID-CONTINENT PETROLEUM CORPORATION.
• Court: Missouri Court of Appeals

147 S.W.2d 120

MINTER v. MID-CONTINENT PETROLEUM CORPORATION.

No. 19804.

Kansas City Court of Appeals. Missouri.

December 2, 1940.

Rehearing Denied January 27, 1941.

Appeal from Circuit Court, Buchanan County; Emmett J. Crouse, Judge.

"Not to be published in State Reports."

Action by William W. Minter against Mid-Continent Petroleum Corporation, to recover amounts allegedly due from operation of a filling station under contracts of lease. Judgment for defendant, and plaintiff appeals.

Affirmed.

Alcid Bowers, of St. Joseph, for appellant.

Mayer, Conkling & Sprague, of St. Joseph, and McAllister, Humphrey, Pew & Broaddus, of Kansas City, for respondent.

CAMPBELL, Commissioner.

Plaintiff's petition is in two counts. The first alleges that in August, 1931, plaintiff and his wife were the owners of a gasoline filling station and the ground upon which it was located near the city of St. Joseph, Missouri; that on August 12, 1931, plaintiff and his wife entered into a contract with a Kentucky corporation, by the terms of which they leased their filling station to said corporation for a period of two years, with right in the corporation to extend the lease for a further period of two years, for which the corporation agreed to pay rent equivalent to one cent a gallon for each gallon of gasoline sold at said station; that on the same date the parties to the lease entered into a contract in writing by the terms of which plaintiff agreed to operate said station and to buy from said corporation all gasoline and oil to be sold at said station during the term of the lease; that he operated said station until June 1, 1934, and that the corporation paid the rent agreed upon. The first count further alleges the lease and contract were renewed from time to time to January 1, 1938, during which time plaintiff operated the station and sold 160,085 gallons of gasoline purchased by him and for which said corporation was indebted to him in the amount of $1,600.85; that about January, 1938, the present defendant, a Delaware corporation, took the assets of the Kentucky corporation and assumed its debts. The first count further alleges that from March 16, 1937, to July 26, 1937, the Kentucky corporation collected from plaintiff one cent a gallon on 18,847 gallons of gasoline to pay a city tax, when there was no such tax. The amount claimed to be due under this count was $1,769.32, which included the alleged city tax.

The second count alleges that plaintiff and defendant in December, 1937, entered into a lease and contract, the same in effect as the contract and lease of August 12, 1931, under which plaintiff operated said station until June 1, 1939; that during said period he sold 74,200 gallons of gasoline, for which defendant agreed to pay to him the amount of $742, for which judgment was prayed.

The answer is a general denial, and "this defendant specifically denies that it is indebted to plaintiff in any sum whatever, and alleges the fact to be that it has fully paid to plaintiff any and all sums of money that may have been due him from this defendant."

The record shows that when the case was called for trial and after plaintiff announced he was ready for trial, counsel for defendant orally moved that the court appoint a referee to hear the evidence and report his findings to the court, to which the plaintiff objected and insisted the cause be tried by a jury. And — "It appearing to the court that the trial of this case will require the examination of a long account between plaintiff and defendant and on application of the defendant the court appoints J. Earl Tetherow as referee or special master to hear the cause and make report to the court of his findings of facts and conclusions of law, to all of which rulings and actions, the plaintiff then and there objected and excepted and now at all times objects and excepts."

The referee qualified, heard the evidence, and reported that he found the original lease dated August 12, 1931, was continued in force by renewals until August 12, 1935; that on that date another lease was made which was cancelled on October 16, 1936; that the monthly rental on the several leases was one cent a gallon for each gallon of gasoline and motor fuel purchased by plaintiff from defendant for resale; that monthly rentals under the contract of August 12, 1935, were discontinued by a letter from plaintiff on September 1, 1936, authorizing defendant to credit his account for rent "to offset a lease dated September 1, 1936, executed by defendant back to the plaintiff; that there was no contract between the parties for the period from October 16, 1936, to November 1, 1936; that the parties entered into a dealers contract without lease on November 1, 1936, and later made another dealers contract. "At this time reciprocal leases were made between the parties, each lease calling for rental of one cent per gallon of all gasoline and motor fuel."

The referee further found that from June 1, 1934, to September 1, 1936, plaintiff purchased of defendant for resale 103,185 gallons of gasoline and motor fuel and was entitled to have rent for that period in the amount of $1,031.85, and that that sum had been paid to plaintiff by checks and discounts; that as there was no lease between the parties covering the period from September 1, 1936, to January 1, 1938, plaintiff was not entitled to any rent.

"As to the charge for city tax alleged in plaintiff's petition I find that plaintiff was charged the posted price for gasoline and motor fuel paid by all rural St. Joseph dealers for the period of time from March 16, 1937, to July 26, 1937; that said posted price for rural stations was the same as the price for the city stations including the one cent city tax and that no city tax was charged against the plaintiff.

"Plaintiff in the second count of his petition claims rent due him at the rate of one cent per gallon on all gasoline and motor fuel purchased from defendant during the period from January 1, 1938, to June 1, 1939. Dealers contract with reciprocal leases was in effect during this period of time. The rent due the plaintiff under his lease was offset by the rent due the defendant company under its lease. I find that no rent was due plaintiff for this period of time.

"Plaintiff has been paid all the rent due him under terms of leases and contracts with defendant, that defendant owes plaintiff nothing.

"I therefore recommend judgment be rendered in favor of defendant and against the plaintiff."

Plaintiff's exceptions to the report were overruled, the report approved, and judgment rendered in accordance with the report. Plaintiff has appealed.

The plaintiff contends the court erred in appointing a referee on an oral motion; that the cause should not have been referred for the reason "there was no accounting to be had on the trial."

Under the provisions of section 976, R. S.1929, Mo.St.Ann. § 976, p. 1249, the court may direct a reference where the trial of an issue of fact shall require the examination of a long account on either side. There is nothing in this section requiring a formal motion to be filed requesting the court to direct a reference.

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