Mulliken v. Naph-Sol Ref. Co., 1.

• Decision Date: 01 July 1942
• Docket Number: No. 1.,1.
• Citation: 4 N.W.2d 707,302 Mich. 410
• Parties: MULLIKEN v. NAPH-SOL REFINING CO.
• Court: Michigan Supreme Court

302 Mich. 410

4 N.W.2d 707

MULLIKEN

v.NAPH-SOL REFINING CO.

No. 1.

Supreme Court of Michigan.

July 1, 1942.

Action by Ray D. Mulliken against the Naph-Sol Refining Company to recover damages for breach of an oral agreement relating to sale of gasoline by defendant to plaintiff. From a judgment for defendant, plaintiff appeals.

Affirmed.

Appeal from Circuit Court, Muskegon County; Joseph Sanford, judge.

Before the Entire Bench, except WIEST, J.

Glocheski & Glocheski, of Grand Rapids, for plaintiff and appellant.

Penny & Charter, of Muskegon, for defendant and appellee.

BUSHNELL, Justice.

Plaintiff Ray D. Mulliken is the operator of an oil station in the City of Grand Rapids. Sometime prior to January 9, 1940, he negotiated with defendant Naph-Sol Refining Company, a Michigan corporation, for the purchase of gasoline. As a result of the negotiations plaintiff claimed that an agreement was made between the parties, the details of which are contained in a letter dated January 9, 1940, addressed to defendant and signed by plaintiff and attached to the declaration.

Plaintiff did not contend that defendant ever signed a written contract, but insisted that for some time gasoline was delivered to him under the oral agreement at a price which permitted him to have a gross margin of 1 3/4 cents per gallon on the retail price. When defendant raised the price and refused to allow the agreed gross margin, plaintiff claimed this was in violation of the oral agreement and demanded performance. Upon defendant's refusal, plaintiff brought the present action for damages which he claimed he sustained as a result of the breach of the agreement.

After plaintiff's counsel and made an opening statement, plaintiff took the witness stand. When he attempted to testify as to his conversation with the president of defendant company, an objection was entered to the effect that the contract was the best evidence. Upon plaintiff's insistence that he was entitled to show the details leading up to the agreement, the court ruled that they were presumed to be included in the letter which the trial judge considered as constituting the contract. When this letter was offered in evidence, defendant objected on the ground that it was executory and did not show any agreement on the part of the defendant to sell gasoline nor plaintiff's agreement to purchase any specific amount, and being a unilateral undertaking, it was not enforceable in an action for specific performance, nor could it afford a basis for an action for damages. Plaintiff's counsel then explained that he stood upon the oral agreement and merely offered the letter as evidence of that agreement. During a colloquy between court and counsel, defendant moved for a directed verdict, and this motion was granted.

Plaintiff contends that the court erred in directing a verdict against him before he had completed his case, that the letter should have been admitted in evidence before being considered by the court, and that he should have been permitted to prove the remaining terms of the oral agreement.

The questions raised by appellant need not be determined by us in view of his counsel's opening statement to the court, from which we quote the following: ‘These talks pertained to a certain price war then existing in the city of Grand Rapids and the NaphSol Refining...