Sunset Oil Co. v. Vertner
| Decision Date | 28 July 1949 |
| Docket Number | 30859. |
| Citation | 34 Wn.2d 268,208 P.2d 906 |
| Parties | SUNSET OIL CO. v. VERTNER. |
| Court | Washington Supreme Court |
Department 1.
Action by Sunset Oil Company against Fred R. Vertner for breach of contract, wherein defendant filed cross-complaint. From a judgment for plaintiff, defendant appeals.
Appeal from Superior Court, Yakima County; Dolph Barnett, judge.
Cheney & Hutcheson, Yakima, for appellant.
Meier & Murray, Seattle, Brown & Hawkins, Yakima, for respondent.
At all times herein mentioned, Sunset Oil Company, the plaintiff in this action, has been and is a corporation organized under the laws of the state of California, and authorized to do business in the state of Washington. Sunset Gas & Oil Company is a Washington corporation and a distributor for Sunset Oil Company.
June 9 1945, Sunset Gas & Oil Company (herein referred to as Sunset Gas or seller) entered into a written 'distributor's agreement' with Fred R. Vertner (the defendant herein) and Stanley A. Pemberton, copartners engaged in the business of selling petroleum products and other merchandise in the city of Yakima and vicinity, under the name of Marine Oil Company (referred to in the agreement as 'distributor').
By the terms of this contract, the partnership agreed to purchase exclusively from Sunset Gas lubricating oils, gasoline, and other petroleum products for resale within a described area in Yakima county, during the period beginning June 9, 1945 and ending May 31, 1950.
In September, 1945, Mr. Pemberton sold his interest in the partnership to Mr. Vertner, and, in this opinion, we shall refer to Marine Oil Company as Vertner or distributor.
By the agreement above referred to, Vertner agreed to purchase each calendar month during the term of the agreement certain minimum quantities of petroleum products, namely, fifty thousand gallons of gasoline, one hundred gallons of lubricating oils, and fifty gallons of grease, the gasoline to be purchased at a price six and one-half cents per gallon less than the seller's posted retail price. The prices to Vertner of the other products were fixed by standards set forth in the agreement.
By paragraph No. 5 of the contract, in consideration of the seller's covenant to refrain from selling any of its branded products described in the agreement to third parties within the described territory, Vertner agreed not to 'handle, directly or indirectly,' any petroleum products for sale or distribution within this territory other than those secured from seller, pursuant to the contract.
By Paragraph No. 7, Vertner agreed to pay cash for all purchases at the time of delivery, unless otherwise agreed in writing by seller's credit department.
By paragraph No. 9, Vertner also agreed that he would not sell any products purchased from seller to any person, unless the purchaser first agreed not to resell the products at less than the seller's posted retail price at the place of resale.
The seller reserved the right to sell or assign its interest in the contract to a responsible oil company.
Paragraph No. 16 of the agreement reads as follows:
Purchases by Vertner were shipped from the seller's plant at Seattle to Yakima by common carrier until December, 1945, after which Vertner transported such purchases by his own truck.
August 22, 1946, Sunset Gas assigned its interest in the contract referred to above to Sunset Oil Company, plaintiff in this action.
By lease or pursuant to 'products agreements,' Vertner controlled or owned interests in the following gasoline stations: (1) Moxee station in Moxee, Yakima County; (2) a station in Ellensburg, Kittitas county; (3) Curtis Cabin Camp station; (4) Yakima Truck Service station, and (5) a gasoline station, the latter three in the city of Yakima.
By its amended and supplemental complaint, upon which the action was tried, plaintiff pleaded six causes of action, alleging, in its first cause of action, the making of the contract above referred to, the assignment of the contract to plaintiff by Sunset Gas, and the performance thereof by plaintiff; that, during the month of October, 1946, defendant, orally and by a written notice, informed plaintiff of his intention to sell his business; that, at some date thereafter, defendant did sell his business to a person unknown to plaintiff; and that, October 16, 1946, defendant ceased to purchase gasoline and other petroleum products from plaintiff, as he was required to do pursuant to the contract, and thereafter purchased products from others, failing to purchase from plaintiff even the minimum quantity of gasoline he was obligated by the contract to purchase each month. Plaintiff then alleged the profits which it would have realized had defendant performed the contract, and demanded judgment for damages, on account of defendant's breach of the contract, in a sum exceeding sixty-eight thousand dollars.
In its second cause of action, plaintiff repeated certain allegations set forth in its first cause of action, and alleged that, during the month of September, 1945, defendant owned or controlled a service station at Moxee and requested plaintiff to paint that station; that plaintiff complied with the request, at a cost of $165.87, and that the parties hereto entered into a 'service station advertising contract' for a term ending March 4, 1948. Plaintiff demanded judgment on its second cause of action for $165.87.
By its third, fourth, fifth, and sixth causes of action, plaintiff made similar claims on account of painting four other service stations owned or operated by defendant, demanding, by each cause of action respectively, judgment for sums ranging from $169.38 to $259.83.
To this complaint, defendant filed a second amended answer and supplemental cross-complaint, denying that he had breached the contract pleaded by plaintiff and denying that he was indebted to plaintiff upon any cause of action pleaded by plaintiff.
By way of a first affirmative defense, defendant alleged that plaintiff and its predecessor in interest had waived the provisions of the contract with regard to minimum monthly purchases thereunder by defendant, and alleged that, by its conduct, plaintiff was estopped from contending that defendant was required to purchase any minimum amount of products from the plaintiff.
By a second affirmative defense, defendant alleged that, by custom and practice, any liability from defendant to plaintiff on account of the five causes of action set forth in plaintiff's complaint, based upon painting service stations, and so forth, should be limited to the pro rata amount thereof for the remaining unexpired term of each of the agreements.
By his third affirmative defense, defendant alleged that, during the month of August, 1946, plaintiff, through its authorized officers, represented to defendant that plaintiff would not object to a sale of his business by defendant, provided that defendant gave plaintiff seasonable notice of such sale, and that defendant had given plaintiff such notice.
By a fourth affirmative defense, defendant alleged that plaintiff had materially and substantially breached the terms and conditions of the contract as alleged in detail by defendant, and had, without cause, repudiated the contract and refused to make further deliveries thereunder.
By way of a supplemental cross-complaint, defendant alleged that, by plaintiff's refusal to perform the contract, defendant had suffered damage, by reason of loss of profits which he would have made had the contract been performed by plaintiff, in an amount in excess of seventy-two thousand dollars, for which amount defendant demanded judgment against plaintiff.
Plaintiff replied to defendant's affirmative defenses and cross-complaint with denials and affirmative defenses.
The action was tried to the court, sitting with a jury, the jury having returned a verdict in favor of plaintiff in the sum of $669.45.
Defendant moved for judgment in his favor notwithstanding the verdict, which motion was denied by the court, and, in the alternative, moved for a new trial, this latter motion having later been waived by the defendant, as stated in the judgment.
Plaintiff did not move for a new trial, but moved for judgment in its...
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