Standard Oil Co. of Kentucky v. Gunn

• Citation: 176 So. 332,234 Ala. 598
• Decision Date: 14 October 1937
• Docket Number: 6 Div. 148
• Parties: STANDARD OIL CO. OF KENTUCKY v. GUNN.
• Court: Supreme Court of Alabama

176 So. 332

234 Ala. 598

STANDARD OIL CO. OF KENTUCKY v. GUNN.

6 Div. 148

Supreme Court of Alabama

October 14, 1937

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action for breach of contract and deceit by E.W. Gunn against the Standard Oil Company of Kentucky. From a judgment for plaintiff, the defendant appealed to the Court of Appeals which transferred the case under Code 1923, § 7326, to the Supreme Court.

Affirmed.

Bradley Baldwin, All & White and Kingman C. Shelburne, all of Birmingham, for appellant.

Thomas Seay, of Birmingham, for appellee.

BROWN Justice.

The case was submitted to the jury on the issues presented by counts A, B, D, and F, and defendant's pleas of the general issue pleaded in short by consent, with leave to offer evidence any matter of defense. Counts A and F are in assumpsit for breach of contract; and B and D in case for fraud and deceit in the sale to the plaintiff of motor lubricating oil for use in plaintiff's automobile, at defendant's filling station.

The plaintiff offered evidence tending to show that he entered into a contract with one Wilson, an agent or servant of the defendant in Birmingham, Ala., while said agent was acting within the line and scope of his agency to sell motor oils at said filling station, to purchase from said defendant all oil used by plaintiff, in consideration of which he was to pay less than the price charged to the members of the public who patronized said station; that said defendant through the said agent, acting within the scope of his employment, sold to plaintiff and put in plaintiff's car oils of inferior class or oils adulterated by mixing therewith such inferior oil, in consequence of which plaintiff suffered loss in the costs of repairs and having his automobile serviced.

The defendant, on the other hand, insists that said Wilson had no authority to make such price; that no such inferior oils were sold to the plaintiff, and, if so sold, the acts of said agent were outside the scope of his authority and there is no evidence that such acts were ratified by his principal.

The evidence clearly warrants inferences that it was within the scope of Wilson's agency to sell motor oils and to keep the containers at said filling station with motor oils to meet the demands of the trade, and to fix the price at which such oil would be sold. It is only where the act of the agent is without the scope of his authority that ratification is necessary to the principal's liability. Baker v Clark, 14 Ala.App. 152, 68 So. 593.

The "Principal is liable for his agent's fraud, tort, or negligence, though committed without principal's participation or consent, if it is done in the course of his employment, and not a willful departure from it, and as to third persons, affected by agent's acts or words, it is sufficient if agent acts within apparent scope of his authority." Gulf Electric Co. v. Fried, 218 Ala. 684, 119 So. 685.

If, as one phase of the evidence goes to show, Wilson, while acting within the apparent scope of his authority in and about the defendant's business of selling motor oils at said filling station, made a contract to sell high-grade motor oil to plaintiff at a fixed price, but instead sold and furnished to him adulterated inferior oils to his damage, this would constitute a breach of such contract for which the defendant would be liable in assumpsit.

And under such contract it was the defendant's duty to furnish a high-grade of motor oils, and, if he breached this duty, by deceitfully and fraudulently furnishing a low grade of adulterated oil resulting in damage to plaintiff, it would be liable in case...