La Rocca v. Howard-Reed Oil Co.
| Decision Date | 31 March 1955 |
| Docket Number | No. 5020,HOWARD-REED,5020 |
| Citation | 277 S.W.2d 769 |
| Parties | Charles V. LA ROCCA, Appellant, v.OIL COMPANY, Inc., Appellee. |
| Court | Texas Court of Appeals |
John H. Benckenstein, Beaumont, for appellant.
Keith, Mehaffey & McNicholas, George M. Sonfield, Beaumont, for appellee.
Appellee, Howard-Reed Oil Company, Inc., sued appellant, Charles V. LaRocca, in the district court of Jefferson County, seeking to enjoin him from engaging in the business of distributing at wholesale gasoline and lubricating oils within the limits of Jefferson County. After a hearing, the court entered judgment, enjoining appellant as said for. He has appealed.
The following are the facts, which are practically undisputed: (Appellee is referred to as plaintiff, appellant as defendant).
Plaintiff was and is a jobber of petroleum products, distributing gasoline and lubricating oils for the Continental Oil Company and kerosene and diesel oil for the Pure Oil Company, Jefferson County, Texas. On January 30, 1952, plaintiff's place of business was located at 1102 College Street, Beaumont, Texas. Defendant, a married man, 45 years of age, with three children has always been engaged in the distribution of petroleum products in Jefferson County, Texas, either an employee or owner; and on January 30, 1952, he was the owner of a wholesale distributing business for the Continental Oil Company, known as the 'Chas. V. LaRocca Distributing Co.', located at 855 Crockett Street, Beaumont, Texas; he had a building and five 6,000 gallon storage tanks. From his bulk plant at said address, he sold and distributed only Continental Oil Company's products, 'Conoco' brands of gasoline, oils and greases; and he was a competitor of all other distributors such as the Gulf, Phillips 66, Pure and all the other oil companies.
In January of 1952, a question arose between the plaintiff and the defendant, regarding price cutting and sales to competitive stations. Negotiations were begun by plaintiff to lease defendant's gasoline bulk plant at 855 Crockett Street, Beaumont, Texas; defendant refused to sell his Continental Oil Company business to plaintiff, unless plaintiff leased his bulk plant, bought his tank truck and took his entire stock of Continental Oil Company's products and equipment off of his hands, and when plaintiff agreed to such terms, a trade was made by the terms of which:
1. Plaintiff purchased defendant's (a) tank truck, 4 or 5 computing gasoline pumps and miscellaneous equipment for $5,591.52 (b) his inventory on hand at cost-$9,000; and
2. Leased defendant's bulk plant at 855 Crockett Street, Beaumont, Texas, for a term of five years at a rental of $9,000 payable in monthly installments of $150 each.
The bill of sale provided among other things:
1. A consideration of $5,591.62 (the price actually paid for a tank truck, 5 computing gasoline pumps and miscellaneous equipment). For the sale of defendant's right, title and interest in and to:
(a) That certain business know as Chas. V. LaRocca Distributing Company of Beaumont, Texas, together with all property used in such business except five 6,000 gallon tanks, two two-inch five-foot hoses, two two-inch nozzles and a Brodie two-inch meter, stock of merchandise and all contracts, goodwill and franchises;
(b) All business developed, licenses and rights used by Chas. V. LaRocca Distributing Company;
(c) All trademarks, trade names and trade rights;
2. For a consideration of $9,000, all merchandise and stock in trade based upon Continental Oil Company's invoice price plus freight;
3. All books, records and accounts were to be available to plaintiff, and it was to pay defendant 1/4cents a gallon on gasoline and 2cents a gallon on oil sold to accounts thereto attached and all other accounts which defendant might secure; and
4. Defendant agreed 'not to engage in the character of business in which I am now engaged in Jefferson County, Texas for a period of five years from the first day of February, 1952, either by establishing a new business or a department of an existing business, or in any other manner whether directly or indirectly.'
After the trade was completed, defendant went to work for plaintiff at the rate of $200 a month. Defendant immediately moved off the premises and plaintiff took over the same and operated defendant's business on the leased premises for about two months, when it closed the business and disconnected the telephone. Plaintiff kept the old employees of the defendant for about four and a half months, and, thereafter it did not actively operate any business at defendant's said bulk plant. On August 28, 1952, plaintiff moved the oil and grease from the defendant's bulk plant to its new location at 3700 Hollywood and 11th Streets, Beaumont, Texas. Plaintiff served defendant's customers from defendant's bulk plant for about eighteen months. The leased bulk plant was not open for business after June 15, 1952.
Because of lack of use the underground storage tanks deteriorated-there was rust and a lot of scale in all five of them, and the building was out of repair.
Defendant's accounts: Gulf Coast Rent-A-Car, National Bedding Co., Triangle Service Station, Taystee Baking Company, Riches Service Station, and many of the accounts quit trading with plaintiff. The plant remained closed to business a year and nine months. Defendant lost his commission on at least 300 gallons a day.
After the plaintiff moved its business over to its new location, then it wanted to cancel the lease. After months of negotiating defendant agreed to accept $2,550 and the return of his bulk plant station in cancellation of the plaintiff's obligation to pay him $5,100 in rentals.
After accepting the possession of his bulk plant at 855 Crockett Street, Beaumont, Texas, defendant repaired it, bought a truck, and started to distribute the petroleum products of Phillips Petroleum Company in Beaumont, Texas, and there immediately followed this suit.
The appellant gave the following testimony himself:
'
The appellant's two points of error are as follows:
First Point of Error.
'The restrictive covenant 'Not to Engage in the character of Business in which I am now Engaged in Jefferson County, Texas,'...
To continue reading
Request your trial
-
Moseley v. Arnold
...words, “where the reason for enforcing a restrictive covenant has ceased, equity will no longer enforce the covenant.” La Rocca v. Howard–Reed Oil Co., 277 S.W.2d 769, 772 (Tex.Civ.App.–Beaumont 1955, no writ). Further, when the conditions have sufficiently changed, it may bring about a ter......
-
Ex parte La Rocca
...to the Court of Civil Appeals at Beaumont, which court, on March 31, 1955, affirmed the judgment of the trial court. La Rocca v. Howard-Reed Oil Co., 277 S.W.2d 769. No application for writ of error was filed and the judgment became final at the expiration of the time allowed for filing How......
-
Chandler v. Mastercraft Dental Corp. of Texas Inc.
...and outweighed the hardships imposed on appellants under the covenant's enforcement. See Bob Pagan Ford, Inc. 638 S.W.2d at 178; La Rocca, 277 S.W.2d at 771. For the foregoing reasons we overrule point of error In point of error three appellants contend the trial court instructed the jury w......
-
Ewb-I, LLC v. Plazamericas Mall Tex., LLC
...If the reason for enforcing a restrictive covenant has ceased, equity will no longer enforce the covenant. La Rocca v. Howard–Reed Oil Co. , 277 S.W.2d 769, 772 (Tex. Civ. App.—Beaumont 1955, no writ). The doctrine is based on the "implied intent of the parties and public policy." RESTATEME......
-
Buying and Selling a Small Business
...a covenant not to compete, the seller may compete at any time after he or she sells the business. [ La Rocca v. Howard-Reed Oil Co. , 277 S.W.2d 769, 772 (Tex. Civ. App.—Beaumont 1955, no writ ).] Therefore, the buyer of a professional practice may want to include a non-competition agreemen......