Pan American Petroleum Corporation v. Parker

• Decision Date: 28 February 1935
• Docket Number: 7 Div. 308
• Citation: 230 Ala. 178,160 So. 220
• Parties: PAN AMERICAN PETROLEUM CORPORATION v. PARKER.
• Court: Alabama Supreme Court

160 So. 220

230 Ala. 178

PAN AMERICAN PETROLEUM CORPORATION v. PARKER.

7 Div. 308

Supreme Court of Alabama

February 28, 1935

Rehearing Denied March 28, 1935

Appeal from Circuit Court, Clay County; E.P. Gay, Judge.

Action to recover rents by E.R. Parker against the Pan American Petroleum Corporation. From a judgment for plaintiff defendant appeals.

Transferred from Court of Appeals under section 7326, Code 1923.

Reversed and remanded.

Cabaniss & Johnston and L.D. Gardner, Jr., all of Birmingham, and Hardegree & Dempsey, of Ashland, for appellant.

M.P Kelley, of Lineville, for appellee.

THOMAS Justice.

The submission in this case was upon a motion to strike the bill of exceptions and on the merits.

We have examined the transcript and hold there was no violation of the rule in the preparation of the bill of exceptions. Woodward Iron Co. v. Herndon, Adm'r, 130 Ala 364, 375, 376, 30 So. 370; Louisville & Nashville Railroad Co. et al. v. Hall, 131 Ala. 161, 32 So. 603; Long v. Seigel, 177 Ala. 338, 58 So. 380; Factors & Mill End Distributors, Inc., v. Rosenthal (Ala.Sup.) 159 So. 72.

The motion to strike the bill of exceptions is denied.

The facts, briefly stated, are: That Bradford leased from the plaintiff a filling station known as the Pan American Filling Station; that the contract was of date of August 28, 1929, and stipulated that the lease was to commence the 1st day of September, 1929, and terminate on the 31st day of August, 1934; that the lessee was to pay a rental of $30 per month, falling due on the first day of each month for that time, for which were executed sixty promissory notes, each for the amount of $30, falling due, respectively, on the first day of each month as stipulated for in that lease.

The evidence further shows that Bradford, as Parker's lessee, took possession on the date indicated therefor, and later subleased the same property to the defendant.

In the lease from Parker to Bradford there was no inhibition against subletting the premises. The lease of date of September 1, 1930, covering the same property, was in evidence, and provides, among other things, that the property is "now owned (leased) and operated by said first party (Isaac B. Bradford) as a filling station from the 1st day of September, 1930, to the 31st day of August, 1934, at a monthly rental of a sum equal to one cent for each gallon of Pan Am gasoline and Pan Am Ethyl gasoline sold by second party (Pan American Petroleum Corporation) at said premises during the preceding month, payable on the tenth day of each month during the term"; that the "second party (Pan American Petroleum Corporation) reserves the right to terminate this lease at any time by giving to first party (Isaac B. Bradford) 30 days' written notice of its intention to so terminate said lease. Second party (Pan American Petroleum Corporation) may credit said rent against any sums owing by first party (Isaac B. Bradford) to it, and notice of such credit shall constitute payment hereunder"; that Bradford agrees to assign to defendant his license, consent, and permits during the term of the lease, and all renewals and extensions thereof made in his name, to maintain and operate the business; to pay all general and special taxes and assessments that may be levied or assessed against said premises, and any and all license fees, occupation taxes, and other taxes imposed upon the business conducted on the premises; that the premises shall remain the sole property of the defendant, and, at the expiration of this lease by lapse of time or otherwise, the defendant shall have the right at any time within 30 days after such termination to enter upon and remove any equipment by it at any time placed thereon; that, if Bradford shall default in the payment of any rent due his landlord, the defendant "may, at its option, pay said rent to first party's landlord and the amount or amounts so paid shall be credited upon the rent herein reserved to the same extent as if said sum or sums had been paid to first party." (Italics supplied.)

It is further stipulated that, if defendant default in the payment of rent for 30 days, after written notice given by Bradford, the latter may terminate the lease to defendant and repossess the premises.

Following the signatures to the lease appears the consent of Parker, purporting to be signed by him; but this signature he denied.

After the execution of this sublease, defendant's agent, McSwain, brought the instrument to plaintiff for signature, and he declined to consent thereto, or to sign the assent prepared for his signature.

Mr. Bradford testified that, after his lease to defendant was executed, McSwain, as defendant's agent, entered into a contract with plaintiff (Parker); the substance thereof being: "That should Mr. Parker fail to receive his rent that he was to notify the Pan American Petroleum Corporation within thirty days so that they would have an opportunity to pay the rents and hold the contract in force." The witness testified further that "Mr. Parker signed that agreement"; that McSwain "said he would take up my contract and make it a legal proposition, since my contract guaranteed a payment of $30.00 a month, that in case the operator should fail to pay the rent, he was to notify the Pan American Petroleum Corporation within thirty days of the default in the payment and give them an opportunity of paying the rent and keeping the lease in force. *** He said it would guarantee the payment of the rents by the Company in case the operator failed to pay them."

The plaintiff, as a witness, testified: "The contract was written. I was sitting at my desk busy and Mr. McSwain came and threw it down on the desk and says: 'Parker sign this thing.' The terms of it were that in case Mr. Bradford failed to pay the rent that I would give the Pan Am Petroleum Corporation thirty days' notice so they would have the opportunity to pay the rents and keep the lease in force. That was all the substance of it, the best I recollect. That is not my signature that you show me. I would not sign that thing (referring to what purported to be his signature on the lease between Bradford and the defendant.) From the first day of September, 1929, to the first day of September, 1930, Mr. Bradford and different ones who operated the station paid me the rents on this property. Mr. Upchurch was the fellow that was operating it. I had no lease with Mr. Upchurch, you see the way they run that, was the fellow who operated the station would pay me every month. Of course it came through their agent who ran the station. The last payment made to me was in May, 1932. These are the notes which were executed by Mr. Bradford to me in payment of the rent for that property."

This last or alleged contract is not in evidence.

Appellant's attorneys thus recite the evidence to be to the effect that McSwain had authority to make leases and any contract that the Pan American Petroleum Corporation wanted to make; that Bradford never knew of him making any other contract guaranteeing one man the payment of another man's rent and McSwain explained to him that that was the only lease they had in this territory like that; that plaintiff nor Bradford had ever seen McSwain's...