Yahraus v. Continental Oil Co., 4-9448

• Decision Date: 07 May 1951
• Docket Number: No. 4-9448,4-9448
• Citation: 239 S.W.2d 594,218 Ark. 872
• Parties: YAHRAUS v. CONTINENTAL OIL CO.
• Court: Arkansas Supreme Court

Page 594

239 S.W.2d 594

218 Ark. 872

YAHRAUS v. CONTINENTAL OIL CO.

No. 4-9448.

Supreme Court of Arkansas.

May 7, 1951.

Rehearing Denied June 11, 1951.

J. H. Carmichael, Jr., and Josh W. McHughes, Little Rock, for appellant.

Moore, Burrow, Chowning & Mitchell, Little Rock, for appellee.

HOLT, Justice.

December 15, 1942, a written 'Bulk Station Commission Agreement' was entered into between appellant and appellee, Continental Oil Company. The contract provided, in effect, that Yahraus would sell and distribute appellee's products to retail dealers, in DeQueen and certain adjacent territory, and for such service was to be compensated on a percentage of the sales as provided in the agreement. Appellant had never before sold oil and gas products. The contract was subject to termination by either party on ten days' notice, and contained no provision that either party should furnish any equipment to retail dealers to induce the handling of appellee's products. However, it is conceded that both parties did furnish certain dealers certain equipment to induce the handling of appellee's products.

The contract, among other things, contained the following provisions: 'Representative, for the consideration hereinafter stated, agrees to take charge of plant and stock of Conoco located at DeQueen. * * * Items specified herein for commissions and expenses cover sole reimbursement to Representative for services to be rendered hereunder and expense of operation of plant and equipment and other expenses to be borne by Representative, and sole compensation to Representative for furnishing equipment and furnishing services of any necessary employees of Representative as herein provided. * * * Unload tank cars and other cars and promptly report the arrival, unloading and return of all cars consigned to above station of Conoco. * * * Solicit orders and make deliveries to the trade, take receipts from all parties to whom deliveries are made, report the receipt, delivery and shipment of stock according to instructions from Conoco and satisfactorily account for all stocks entrusted to him. * * *

'Faithfully transact the business in his charge and make reports, all in accordance with this agreement and instructions from the Division Manager of Conoco at Ponca City, Oklahoma. * * * Collect and remit promptly for all sales made. Any credit sales made by representative which have not been duly authorized by the credit department of Conoco shall be at the sole risk of representative (appellant) and he shall be liable to Conoco for the payment of the amount of any and all such accounts arising out of any such sales, etc. * * * In consideration of the performance of this agreement by representative and subject to the provisions herein Conoco will pay for said work and as commission and expense certain commissions as listed in said agreement. * * * Will furnish the necessary licenses (except auto and truck licenses) to cover the business of Conoco, etc. * * * No passenger other than an employee of Conoco, or of representative shall be carried on such automotive equipment while engaged in and about Conoco's business.'

December 29, 1947, appellee terminated the contract agreement with appellant, whereupon the present suit was filed by appellant in which he alleged that the above contract had been orally modified since its execution to provide: 'When the appellant (Yahraus) found a prospective retailer in each and every instance he would take the matter of supplying such equipment up with the appellee and was instructed by the appellee that the appellee would not furnish equipment to such prospective retail dealers and the appellee agreed with the appellant for the appellant to furnish such equipment to said dealers, and in consideration therefor the retail dealers would become the individual customers of the appellant,' that appellee had breached the contract and sought damages which he alleged he had sustained by reason of unlawful and fraudulent interference with his customers causing them to breach their contracts with appellant, for alleged confiscation and conversion of filling station equipment owned by him and for punitive damages for malicious, wilful and unlawful confiscation and conversion of appellant's property.

Appellee answered with a general denial.

At the close of all the testimony, the trial court gave a peremptory instruction to the jury to return a verdict for the appellee. This appeal followed.

The question presented is whether the court erred in taking the case from the jury. In deciding this question, we must determine whether there was substantial evidence to support either of the following contentions of appellant: 'That the Bulk Station Commission Agreement was modified. That the appellee unlawfully interfered with appellant's customers, causing said customers to breach their contracts with the appellant to his injury. That appellee converted appellant's property to its own use.'

We must also keep in mind our well established rule that 'In determining on appeal the correctness of the trial court's action in directing a verdict for either party, the rule is to take that view of the evidence that is most favorable to the party against whom the verdict is directed, and where there is any evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error to take the case from the jury.' Barrentine v. Henry Wrape Company, 120 Ark. 206, 179 S.W. 328.

The undisputed evidence shows that appellee and appellant occupy the position of principal and agent, respectively, under the written Bulk Station Commission Agreement here in question. This relationship imposed certain well...