Shealy v. Fowler
| Decision Date | 16 November 1936 |
| Docket Number | 14381. |
| Citation | 188 S.E. 499,182 S.C. 81 |
| Parties | SHEALY v. FOWLER et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Newberry County; Philip H Stoll, Judge.
Action by H. L. Shealy against H. L. Fowler and others. From an adverse judgment, the plaintiff appeals.
Affirmed.
Alan Johnstone, of Newberry, for appellant.
Benet Shand & McGowan, of Columbia, and John F. Clarkson, of Newberry, for respondents.
For several years prior to the year 1924, the plaintiff, H. L Shealy, had been engaged in the business of retailing gasoline, motor oil, and accessories in the town of Prosperity. In June of that year he purchased a certain lot of land on Main street with a view of establishing thereon a wholesale gasoline, kerosene, and oil bulk plant for the distribution of these products. He constructed on the front portion of the lot adjoining the public square an automobile garage and offices wherein he conducted an automobile sales agency, and also built thereon a service station for the retailing of gasoline and oil.
Desiring to develop the rear portion of the lot which joined the Southern Railway Tracks, he communicated with the defendant Standard Oil Company of New Jersey, and at least one other oil refining company, for the purpose of ascertaining the wholesale prices of gasoline in tank car lots, delivered at Prosperity. Some time thereafter, Mr. R. C. Hurd, the field agent of the Standard Oil Company, whose duty it was to promote sales, arrived at Prosperity and interviewed Mr. Shealy with reference to the purchase of the back portion of his lot herein referred to. He told plaintiff, according to plaintiff's testimony, that his company was building a large number of wholesale bulk plants over the state of South Carolina, and he did not see any reason why he could not induce his company to buy the property, erect the bulk plant, and employ the plaintiff as its local commission agent to dispense and distribute the product. After some negotiations with Hurd, the plaintiff agreed to sell the property for $900, and to give the Standard Oil Company of New Jersey an option to purchase the property at this price, but, as stated by him, with the promise and assurance of Mr. Hurd that he would be employed by the defendant as its subagent. The option was later duly executed and delivered. He testified that Hurd said with reference to this employment, "You leave that to me, I will take care of that."
The option expired on June 3, 1925, without having been exercised by the named defendant. About one month prior to June 3d, the plaintiff wrote a letter to the defendant Standard Oil Company, calling attention to the expiration date of the option; not receiving a reply, he telegraphed the company on August 6, 1925, stating that the option would be canceled if it were not complied with by August 8th.
The plaintiff says that, several weeks after the telegram was sent, Hurd returned to Prosperity and told him that he had induced the company to buy the property. He then testifies: "I told Mr. Hurd I preferred that he give me in writing what my commission would be, and what basis the continuance of my services would be based on." Hurd agreed to this, and, according to the testimony of the plaintiff, wrote the contract in the plaintiff's office at his typewriter. Two copies were made and signed by the plaintiff and Mr. Hurd. He testified that Mr. Hurd told him that both copies would have to be sent to Charleston to be approved by Mr. Willis, who was district manager of the company; that later his copy was sent back to him by mail, and he placed it in the wooden file kept by him in his office. The plaintiff states that no one was in his office but Mr. Hurd and himself when the contract was typewritten, and that no person witnessed the execution of the alleged contract.
Thereafter, through an attorney in Newberry, the defendant company obtained a contract for the sale of the property from the plaintiff, and several weeks later the plaintiff executed and delivered to the defendant company a deed to the premises for the purchase price of $900.
The Standard Oil Company thereafter erected a bulk plant for the distribution of petroleum products on the lot, and the plaintiff Shealy, was placed in charge of this plant in December, 1925, as the defendant company's subagent. He continued to operate it for the company until November 30, 1931, when the plant was closed.
On November 30, 1931, which is the day the plant was closed, the defendants Fowler and Guthrie, agents and employees of the defendant company, checked the records and accounts pertaining to the business transacted between the plaintiff and the defendant company, and found everything in order. The plaintiff testified that during the time of his agency he was furnished by the defendant company with a steel filing cabinet, and was requested by it to keep all papers and records pertaining to the agency in this cabinet. He says that, after receiving the cabinet, he removed his copy of the contract from his wooden file and placed it in the steel cabinet. This steel cabinet was not kept on the bulk plant property which belonged to the defendant company, but was kept in the office of the plaintiff in his garage.
On the day the agency was closed and the accounts audited, the plaintiff was out of the state; his brother, M. C. Shealy, who was the assistant manager, secretary, and bookkeeper of the Shealy Motor Company-which was the name under which the plaintiff did business-had been notified three days before by the defendant company that they intended to discontinue the operation of the bulk plant. This information was given to him in the office of the defendant company's manager in the city of Charleston. Mr. Otway Shealy, an employee of the plaintiff, was present when the accounts were checked. Mr. M. C. Shealy had been summoned for jury duty in Newberry on the day of the closing, but was there when Fowler and Guthrie arrived to take possession. The two Shealys testified that they objected to the removal of the records which were kept in the steel filing cabinet, but neither of them made any statement to these agents that the plaintiff's contract with the defendant was in the cabinet. The defendants moved the cabinet and its contents from the office of the plaintiff and placed it in the bulk plant building of the defendant, but the testimony is undisputed that no friction or unpleasantness arose between these parties by reason of the removal of the cabinet.
This action was brought by the plaintiff against the defendants for damages for fraudulent breach of contract. At the close of all the testimony, the defendants moved for a directed verdict upon the grounds that the evidence did not disclose actionable wrong on the part of the defendants: (a) In fraudulently inducing the plaintiff to enter into the contract to operate the bulk plant; (b) in connection with the purchase of the property of the plaintiff; (c) in inducing plaintiff to open the highway station; (d) in removing the files from the plaintiff's office.
The trial judge granted the motion, and this appeal assigns error upon several grounds.
The fundamental question to be considered is, What was the nature, scope, and consideration of the contract entered into between the plaintiff and the defendant Standard Oil Company? The original contract was not introduced in evidence, but the plaintiff was allowed to testify to its contents. He charges that the contract was in the steel cabinet, together with the other records referred to, which steel cabinet was moved from his office by the defendant company. He also bases a charge of fraud upon this removal. In testifying to its provisions, he says: "The contract was that he agreed to employ me as their commission agent on a basis of commission: 2¢ on gasoline and kerosene; 3¢ on motor oil, and 10% on package goods that were dispensed through the station, and that this employment remained in force and effect so long as I produced the volume of business available for that product in that vicinity." In another portion of his testimony he says: "It (the contract) certified in there, as long as I produced the volume of business that was available for that product in the community I served, and as long as I dealt fair with the company-that is as near as I can state the wording in the agreement."
There is no contention that he did not receive his commissions in full during his six years' service;...
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