Smith v. Gulf Refining Co.

• Decision Date: 17 April 1926
• Docket Number: 5154.
• Citation: 134 S.E. 446,162 Ga. 191
• Parties: SMITH v. GULF REFINING CO et al.
• Court: Georgia Supreme Court

134 S.E. 446

162 Ga. 191

SMITH v. GULF REFINING CO et al.

No. 5154.

Supreme Court of Georgia

April 17, 1926

Rehearing Denied Sept. 22, 1926.

Syllabus by the Court.

Where one who was the owner of a certain lot of land and the structures thereon, which was equipped with the necessary tanks and other materials requisite for the purpose of handling and selling at retail the products of a named oil company, sold and conveyed the lot to another party and inserted in the writing the following stipulation, to wit "It is agreed with the parties hereto that the said J F. Posey [the grantee] is to use the Standard Oil Company gas and oil as long as the said G. C. Smith [the grantor] acts as agent for said company and the prices of same are in accord with other gasoline and oils," the clause quoted construed in the light of the other facts in the record and the intention of the parties to the deed, amounted to a covenant running with the land. And where the grantee in the conveyance referred to above conveyed to a third party the same property, but omitted from his deed of conveyance all reference to the covenant and condition in the deed from the first grantor, nevertheless the covenant, being one running with the land, was binding upon the last grantee, and the first grantor may maintain a suit for injunction to prevent the violation of the covenant under the circumstances alleged in the petition.

Error from Superior Court, Taylor County; H. A Mathews, Judge.

Suit by G. C. Smith against the Gulf Refining Company and others. Judgment for defendants, and plaintiff brings error. Reversed.

Jere M Moore, of Montezuma, for plaintiff in error.

C. W. Foy, of Butler, for defendants in error.

BECK P.J.

G. C. Smith brought his equitable petition against the Gulf Refining Company, a foreign corporation. It appears from the petition that the plaintiff was the holder of a lease of certain real estate in the town of Butler, Ga., for a term of 25 years, which the town of Butler had executed to petitioner; that the latter erected on the lot of land, the subject of the lease, a building and equipped the same with tanks and other necessary material and implements for the purpose of handling the products of the Standard Oil Company, and did operate the place of business for the purpose of selling at retail and handling the products of that company. Subsequently plaintiff sold the building and equipment to J. F. Posey, and transferred to him the lease executed by the town of Butler, and the instrument conveying the premises sold to the purchaser contains the following stipulation:

"It is agreed with the parties hereto that the said J. F. Posey is to use the Standard Oil Company gas and oil as long as the said G. C. Smith acts as agent for said company and the prices of same are in accord with other gasoline and oils."

This instrument also contains the warranty clause usual in deeds. About a year later that is, on the 8th day of October, 1925 Posey executed a deed conveying "the filling station building located on the lot leased by the city of Butler to G. C. Smith and Ira Chambers, and transferred by G. C. Smith to J. F. Posey, said lease being this day transferred by said J. F. Posey to Gulf Refining Company, together with one air outfit, one cash register, and one three-compartment oil tank." This last conveyance did not contain the stipulation that only the products of the Standard Oil Company should be sold on the premises, nor any similar stipulation; and it is alleged in the petition that almost immediately after the execution of the conveyance from Posey to the Gulf Refining Company the latter company began removing the tanks of the Standard Oil Company, which were upon the premises when Smith executed the conveyance to Posey, and is replacing the same with gas tanks of their own, and have ceased to use the products of the Standard Oil Company according to the stipulations in the conveyance from Smith to Posey. It is alleged that petitioner had tendered to J. F. Posey and the Gulf Refining Company the sum of $1,500, which was paid to him "as part of the consideration for said transfer, which they declined and refused to accept," and petitioner is ready to pay the sum upon the cancellation of the said deed. In an amendment to his petition Smith alleges that he is still the agent of the Standard Oil Company at that place, Butler, Ga., and that he is employed "on a commission basis, being compensated according to the amount of goods sold, and that to allow the Gulf Refining Company to conduct said business would injure and damage petitioner in a large sum, etc.; *** that he is unable to say what the sales at that station would be, cannot ascertain what his commissions would amount to;...