Quist v. Zerr, 28459.

• Decision Date: 26 December 1941
• Docket Number: 28459.
• Parties: QUIST et al. v. ZERR et al.
• Court: Washington Supreme Court

120 P.2d 539

12 Wn.2d 21

QUIST et al. v. ZERR et al.

No. 28459.

Supreme Court of Washington

December 26, 1941

Department 2.

Action by C. L. Quist, Sr., and others, doing business as C. L Quist & Sons, a copartnership, against Casper Zerr and others to recover damages claimed to have resulted from the breach of a contract. From a judgment for plaintiff, defendants Vincent Zerr and wife appeal.

Affirmed.

Appeal from Superior Court, Yakima County; Dolph Barnett, Judge.

Roberts Swanson & Tunstall, of Yakima, for appellants.

D. V Morthland and Lane Morthland, both of Yakima, for respondents.

JEFFERS Justice.

This action was instituted by C. L. Quist, Sr., C. L. Quist, Jr., and Austin H. Quist, doing business as C. L. Quist & Sons, a copartnership, against Casper Zerr, Vincent Zerr and Elizabeth Zerr, his wife, in the superior court for Yakima county, to recover damages claimed to have resulted from the breach of a contract. We quote three paragraphs of the complaint, in order that our subsequent references thereto may be better understandable.

'3. That heretofore and on or about the 14th day of April, 1939, the plaintiffs, at the special instance and request of the defendants, sold and subsequently delivered to said defendants certain goods, wares and merchandise, to-wit, gasoline service station equipment, more particularly described in Exhibit 'A' attached hereto and by reference made a part hereof. That the agreed price and reasonable value of said equipment was the sum of $282.08.'

(The equipment above referred to and as set out in the exhibit consisted of one 550 gal. 14 Ga. gasoline tank; one 3 1/2 by 1 1/2 by 1 1/2 D. T. bushing; one 1 1/2"' D. P. foot valve; one Tokheim computing gasoline pump, model 39, type VP serial number 813377.)

'4. That the sale of the equipment aforesaid was evidenced by a written memorandum of conditional sale, a copy of which is attached hereto, marked Exhibit 'A' and by reference made a part hereof. * * *

'5. That among other provisions, said memorandum of conditional sale contained the following covenant and agreement, to-wit:

"And as further consideration, the vendee or his assigns and heirs, agrees to purchase all requirements of petroleum products sold on the above premises from the vendor, their assigns or heirs. This agreement will not expire sooner than May 31, 1943, regardless of the fact that the above mentioned articles sold may be fully paid Before that date. The vendors agree that the price charged for petroleum products will conform with prices charged by other major oil companies to dealers of a like category."

While in the briefs it is stated that defendants Vincent Zerr and Elizabeth Zerr and defendant Casper Zerr filed separate answers, the only answer appearing in the record Before us is that of Vincent and Elizabeth Zerr. This answer consists of a denial of the allegations of the complaint, for the most part on information and belief, and a further answer wherein all the grounds for a demurrer are set out.

The cause was tried to the court without a jury. At the close of the testimony, the court made and filed its memorandum opinion, wherein it expressed the opinion that the complaint should be ordered amended to conform to the proof, and on February 1, 1941, the court entered an order that the first cause of action, which is the only one with which we are concerned on this appeal, be amended by adding the following paragraph: 'That during the negotiations leading up to the contract aforesaid and at the time said contract was signed the defendant Casper Zerr was the agent of the defendant Vincent Zerr and Elizabeth Zerr, husband and wife, and was duly authorized and empowered to conduct all negotiations leading up to the formation of said contract for and on behalf of defendants Vincent Zerr and Elizabeth Zerr and to execute said contract for and on behalf of said defendants Vincent Zerr and Elizabeth Zerr and that the said defendant Casper Zerr did in fact conduct said negotiations and did execute said contract for and on behalf of said defendants Vincent Zerr and Elizabeth Zerr. That subsequent to the execution of the contract hereinBefore mentioned the defendants Vincent Zerr and Elizabeth Zerr, husband and wife, with full and complete knowledge of said contract and all of the terms and conditions thereof, did ratify and confirm said contract and all of the terms and conditions thereof.'

Motions for judgment notwithstanding the decision of the court, or in the alternative for new trial, were made and denied, and thereafter, at the request of counsel for defendants, the court reopened the case for the purpose of taking additional testimony, no limitation being placed by the court on the scope of such testimony.

After considering the additional testimony and the arguments of counsel, the court made and entered findings of fact, conclusions of law, and judgment in favor of plaintiffs.

The court, in addition to finding that on April 14, 1939, plaintiffs, at the special instance and request of defendants Vincent Zerr and Elizabeth Zerr, sold and delivered to defendants goods, wares and merchandise, to-wit, gasoline and service station equipment, at the agreed price and reasonable value of $282.08, found that the sale of such equipment was evidenced by a written memorandum of conditional sale, which contained, among others, the covenant hereinBefore set out; that the contract was signed by defendant Casper Zerr, who, at the time of signing such contract, was acting as the duly authorized agent of defendants Vincent and Elizabeth Zerr, for the purpose of negotiating and executing such contract, and that the contract is the contract of Vincent and Elizabeth Zerr. The court also found that subsequent to the signing of the contract, defendants Vincent and Elizabeth Zerr ratified the terms and conditions of the contract; that notwithstanding that plaintiffs were at all times ready, willing and able to perform all parts of the contract, and repeatedly tendered to defendants Vincent and Elizabeth Zerr their requirements of petroleum products, in accordance with the contract, defendants, on or about September 1, 1940, breached such contract by wrongfully failing and refusing to purchase their requirements of petroleum products sold on the premises described in the contract, although defendants are now and were at all times mentioned in the complaint operating the business of selling gasoline and petroleum products at retail on the premises.

The court further found that during the period the contract was performed by the defendants Vincent and Elizabeth Zerr, the average amounts of gasoline purchased per month from the plaintiffs were as follows: 'Hi-Octane 1,828 gallons; Ethyl 49 gallons, third grade 491 gallons; that but for the breach of the contract by the defendants, plaintiffs could and would have sold to defendants, during the remainder of the term of the contract, at least 60,324 gallons of Hi- Octane, 1,617 gallons of Ethyl, and 16,203 gallons of third grade; that the profit made by plaintiffs on each gallon of gasoline sold is 1 3/4 cents for Hi-Octane and Ethyl, and 1 1/2 cents on third grade; that by reason of the breach of the contract, plaintiffs have been damaged, through loss of sales of gasoline, in the sum of $1,193.26.

Judgment in favor of plaintiffs was entered for the above amount, plus an attorney's fee of $150, and costs. Defendants Vincent and Elizabeth Zerr have appealed from the judgment.

Error is assigned on the refusal of the trial court to grant judgment in favor of defendants notwithstanding the decision of the court, or in the alternative for a new trial, and in assessing the amount of the judgment.

From the testimony it appears without dispute that C. L. Quist & Sons was and is engaged in the distribution of petroleum products for Richfield Oil Corporation, in the city of Yakima and the surrounding territory, as a part of the partnership business, and that C. L. Quist, Jr., was the manager of the Yakima operations.

It also appears from the undisputed testimony that Quist & Sons at all times mentioned had a contract with Richfield Oil Corporation, under which contract the oil company consigned to the partnership its products, consisting of gasoline, grease, etc., and Quist & Sons sold and delivered these products to the various service stations in that territory; that these products at all times remained the property of the oil company, until sold and delivered by respondents; that all money received by respondents from such sales was deposited in the bank to the credit of the oil company, and such money did not go through the books of the partnership; that for its services in handling these products, respondents received a straight commission of 1 3/4 cents a gallon on all Hi-Octane and Ethyl gasoline sold and delivered, and 1 1/2 cents a gallon on all third grade gasoline sold and delivered, and a check was given to respondents once a month by the oil company, based upon the gallons sold and delivered the preceding month; that during the time herein mentioned, respondents had about thirty accounts to whom they were delivering gasoline.

C. L. Quist, Jr., testified that when the Zerr account was taken on, no additional employees or equipment were required to handle the business; that because of the location of the Zerr station, and the further fact that respondents required a certain number of employees to handle and business they had, no additional overhead was incurred in handling the Zerr account; that therefore the commission they received from the oil company for the gasoline sold to the Zerr station was practically clear profit, and when the Zerrs refused to continue to buy from them, they lost that profit.

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