Russell v. Sunburst Refining Co.
| Decision Date | 22 December 1928 |
| Docket Number | 6261. |
| Parties | RUSSELL v. SUNBURST REFINING CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; George Bourquin Judge.
Action by Joseph Russell, doing business as the Auto Gas & Oil Company, against the Sunburst Refining Company. Judgment for defendant, and plaintiff appeals. Affirmed.
Wheeler & Baldwin, of Butte, for appellant.
Homer G. Murphy, of Great Falls, and Maury, Brown & Maury, of Butte, for respondent.
After the original opinion in this case was handed down, a petition for rehearing was granted. Our conclusion in the first place was based upon a single contention raised by counsel for defendant, and on reargument we were led to doubt the correctness of the basis of the decision. For this reason the original opinion is ordered withdrawn, and this one substituted for it.
The plaintiff in this action, doing business under the name of Auto Gas & Oil Company, seeks to recover from defendant, a Montana corporation, moneys which he alleges he paid to it as a result of deceits practiced upon him. Eighty-eight causes of action are set forth in the complaint, the first 28 of which are based upon frauds and deceits alleged to have been practiced upon plaintiff for the purpose of inducing him to agree to buy from the defendant certain carloads of gasoline and to pay it therefor two cents per gallon in excess of the price agreed upon. The first cause of action involves 10 carloads of gasoline, the second 50 carloads, and the remainder of the first 28 causes, one car each. Causes of action numbered 29 to 88, inclusive, are based upon frauds and deceits alleged to have been practiced on plaintiff by defendant after it had sold and delivered to him specified cars of gasoline, as a result of which plaintiff paid to the defendant two cents per gallon in excess of the price agreed upon for each gallon of gasoline contained in said cars. Each of these causes of action involves one carload of gasoline. In its answer the defendant admitted that plaintiff was doing business under the name of Auto Gas & Oil Company; that it was a corporation; and denied generally all the other allegations of each cause of action.
The case was tried before the court with a jury. At the close of all of the testimony the defendant moved the court to direct the jury to bring in a verdict in its favor upon each cause of action set forth in the complaint. This motion was sustained as to all the causes of action except the first second, fourth, fifth, sixth, seventh, eighth, ninth, tenth eleventh, twelfth thirteenth, fourteenth, and fifteenth. The jury returned a verdict in favor of defendant upon all of the causes of action submitted to it and judgment was duly entered thereon. The plaintiff moved the court for a new trial, which motion was denied, and he has appealed from the judgment and seeks to review the proceedings had at the trial under a bill of exceptions prepared and settled after the decision on motion for new trial had been rendered.
To sustain the allegations of his complaint the plaintiff testified that his transactions with the defendant began about the latter part of October, 1923, and continued until about the 1st of October, 1924; that on different occasions a representative of the defendant called at his place of business in Butte and solicited from him orders for carload lots of gasoline; that on these occasions, after the price of gasoline had been agreed upon, the defendant's representative made various statements relative to the additional two cents per gallon charge, such as these:
That he "would have to charge me for the tax; that the refinery had to pay it to the state." "He said it was for the state tax and that he would * * * have to collect it as the refinery had to pay it to the state." "He said he would have to charge two cents state tax; that they had to pay it to the state; that we could not send it to the state ourselves; and that they would have to send it and they would have to charge it to us."
Referring to one of the many conversations with the representatives of the defendant relative to this two cents additional charge, he was asked and answered:
He further testified that on the bills rendered to him for the various carload lots of gasoline sold to him by the defendant, the total charge was segregated into two items, one representing the charge for gasoline and the other the state tax. One of those bills, Plaintiff's Exhibit No. 3, covering the carload of gasoline mentioned in the fourth cause of action, except as to date, amount of gasoline, and price charged, is substantially the same as Exhibits 3 to 13, inclusive, covering causes of action 4 to 14, inclusive, and the items contained therein as charges against plaintiff are as follows:
One T C Sunburst Gasoline.
| 8,146 gals .................. | 10 cents $814 60 |
| State tax .................... | 2 cents $162 92 |
| -------- ------- | |
| 12 cents $977 52 |
The plaintiff testified that he believed in and relied upon the statements made by the defendant's agents and would not have made payments of the two cents per gallon, if it had not been for the making of such statements and his belief that the two cents were actually being paid to the state as a tax on each gallon of gasoline mentioned therein.
The first cause of action covers 10 carloads of gasoline, and the testimony concerning the sale and purchase thereof is substantially the same as the testimony relative to cause of action numbered 4, above referred to, and plaintiff's exhibits covering the same, numbered 61 to 70, inclusive, are substantially the same as Exhibit No. 3 above mentioned, save as to date and amounts of gasoline covered.
The testimony relative to the second cause of action differs from that above referred to, in that the carloads of gasoline involved therein were purchased by and delivered to plaintiff under a written order therefor which is as follows:
"Sunburst Refining Company. P. O. Box 1616, Great Falls, Montana.
No. 3. Date 4/17-1924. Sold to Auto Gas & Oil Company. Town and state: Butte, Montana. * * * 50 carloads 58/60 Sunburst economy gasoline at 6 cents spread under tank wagon price Butte. Tax paid-freight to be deducted from invoice.
Purchaser's signature: Joseph Russell, Mgr.
Salesman: M. C. Henderson."
Testifying concerning the carloads of gasoline covered by this written order and which were mentioned in his Exhibits 15 to 53, inclusive, which exhibits were substantially the same as Exhibit No. 3, above mentioned, the plaintiff explained that by the tank wagon price was meant the price of gasoline as delivered to garages; that by the "spread" was meant the difference between the agreed price of the gasoline and the tank wagon price, and that it was understood that the total cost to him for the gasoline and the tax would be six cents less than the tank wagon price; that on these 50 cars he paid the agreed price of the gasoline and in addition thereto the two cents on each gallon. On his cross-examination it was developed from the witness that the total amount per gallon which he paid for each of the carloads involved in the 50-car transaction, concerning which testimony was given, was six cents under the tank wagon price at Butte; that he had never been called upon to pay more and had never paid more; and that the tank wagon price and the retail price of gasoline in Butte have been the same for several years, or shortly after his start in business there in 1918. The various exhibits introduced in evidence and which have been referred to above cover the carloads of gasoline involved in causes of action 4 to 14, inclusive, the 10 cars described in the first cause of action, 40 of the cars described in the second cause of action, and the carloads of gasoline involved in causes of action numbered from 29 to 88, inclusive. No testimony was admitted tending to establish the allegation of the other causes of action embraced in the complaint.
After it had been admitted by counsel for the defendant that it had not paid any gasoline tax to the state of Montana during the periods of time covered by the proof, the plaintiff rested his case. Witnesses were called and gave testimony on behalf of the defendant, but we do not deem it necessary to refer to it at this time.
In their brief filed in this court, counsel for the plaintiff have made numerous specifications of error, all of which are predicated upon matters occurring at the trial and can only be shown by a bill of exceptions properly allowed and settled. As heretofore indicated, such a bill of exceptions does appear in the record and at the outset we are met with a motion to strike the same therefrom upon several grounds.
The first ground of this motion is that the bill was not allowed settled, and signed by a proper judge. In that connection it should be noted that the judgment was entered on May 7, 1927, and notice of entry of the same served upon counsel for the plaintiff on the 10th day of May, 1927. On May 17th counsel for plaintiff gave notice of motion for a new trial on eight statutory grounds, the first five of which it was stated would be made on affidavits thereafter to be filed, and the remaining grounds were based on the minutes of the court. At the same time notice was served that the motion would be heard on May 27th. On May 25th a stipulation was entered into between counsel for plaintiff and defendant, granting the plaintiff until June 6th to serve and file affidavits in support of the motion for a...
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