Opinion
No. 3531.
April 22, 1937. Rehearing Denied May 13, 1937.
Appeal from County Court at Law, El Paso County; John M. Worrell, Judge.
Suit by E. D. Wylie against the Texas Company. Judgment for plaintiff, and defendant appeals.
Affirmed.
June 1, 1931, the Texas Company entered into two written contracts with E. D. Wylie, designated as service station agency contracts, whereby the company appointed Wylie as its commission agent at two of the company's service stations in El Paso, Tex. Inter alia these contracts obligated Wylie to maintain the stations in good condition; use same solely for storing, handling, and selling petroleum products supplied by the company, and not sell such products at less than authorized prices. The contracts provided that the title to all products delivered by the company at the stations should remain in the company until sold. The company agreed to pay Wylie for his services three cents for each gallon of gasoline and kerosene sold by him. At that time the company was making and selling two grades of gasoline known as "New and Better" and "Ethyl" gasoline. Later the company made an inferior and cheaper gasoline known as Indian Green-Lite gasoline. December, 1931, or January, 1932, the company commenced to supply Wylie with this cheaper gasoline for sale.
January 22, 1932, the company, from its Houston office, wrote Wylie a letter which reads:
"Effective January 18, 1932, Form S-46, Service Station Agency Agreement between you and the Texas Company, dated June 1st, 1931, is hereby modified:
"To include the delivery to you on consignment of Indian Green-Lite Gasoline to be handled and sold by you upon, under and subject to all of the terms and conditions of said agency agreement, and to establish a rate of commission on Indian Green-Lite Gasoline, so that your compensation, based on sales of this product, shall be 1c per gallon.
"All other terms and conditions of said Agency Contract shall remain in full force and effect.
"The Texas Company reserves the right to revoke this modification and/or change the rate of commission stipulated hereunder at any time hereafter, by prior written notice."
The parties operated under the contracts until May 31, 1932. Appellant allowed and paid Wylie a commission of one cent a gallon for the Indian Green-Lite gasoline which he sold up to May 31, 1932. More than two years and less than four years after the parties ceased to operate under the contract Wylie sued the company to recover two cents for each gallon of the Green-Lite gasoline sold by him.
The jury found that the parties did not mutually intend that the contracts should apply only to gasoline being manufactured by the appellant upon the date of the contracts; that it was not mutually agreed between the parties prior to the delivery of Indian Green-Lite gasoline that the commission on the sale would be one cent a gallon; that appellee did not impliedly agree with the employees of appellant that the commission on the sale of such gasoline would be one cent a gallon; that appellee did not acquiesce in the attempted modification of the contract as evidenced by the letter of January 22; that appellee was not estopped from prosecuting the suit and that it was necessary for appellee to accept the cheaper gasoline in order to protect his business interests.
Judgment was rendered in Wylie's favor.
Harrison, Scott Rasberry, of El Paso, for appellant.
J. E. Quaid, of El Paso, for appellee.
A number of issues were submitted which should not have been submitted. The right of Wylie to recover was controlled by the plain and unambiguous terms of the written contracts unless those contracts were later modified by mutual agreement. The only issues which should have been submitted were those relating to the alleged agreed modification of the original contracts so as to reduce the commission for the sale of Green-Lite gasoline from three cents to one cent a gallon. These issues were found in Wylie's favor and the evidence amply sustains such findings.
Wylie is not suing to recover back voluntary overpayments made by him upon the purchase price of Green-Lite gasoline sold and delivered to him by appellant. There was no relationship of vendor and purchaser between the parties. The title to all of the products delivered to Wylie remained in appellant until sold by Wylie. The title passed from the company to the purchasers. Wylie was a mere agent or employee of the appellant.
For this reason all of appellant's propositions are overruled which are founded upon the assumption that Wylie is suing to recover back voluntary overpayments made by him upon the purchase price of the GreenLite gasoline.
Propositions 6 and 7 are without merit because they are controlled by the plain terms of the written contracts.
The admission of certain testimony by Wylie complained of in the eighth and nineth propositions presents no reversible error. For the reasons heretofore stated, it related to issues which were immaterial, and which should not have been submitted to the jury.
The evidence presents no issue of an accord and satisfaction, for which reason all propositions are overruled relating to accord and satisfaction.
If the original contracts, by mutual agreement, were not modified so as to reduce the commission for the sale of GreenLite gasoline from three to one cent, and it was found there was no such agreement, then this is simply a case of a wrongful refusal on the part of appellant to pay the compensation agreed to be paid Wylie for services rendered.
Affirmed.