Opinion
June, 1936.
Present — Hill, P.J., McNamee, Crapser, Bliss and Heffernan, JJ.
On May 24, 1928, plaintiff and defendant entered into a contract by the terms of which plaintiff agreed to purchase for a term of five years Tydol gasoline from defendant which defendant agreed to sell to plaintiff. The contract provided that for the first 55,000 gallons of gas defendant should charge plaintiff at the current wholesale rate. Upon all gas purchased in excess of that number of gallons plaintiff was to receive a rebate of two cents on each gallon. In the gas industry apparently there are three prices: (1) Current wholesale price, which is two cents lower than the tank wagon price; (2) tank wagon price, which is two cents lower than the posted price; and (3) the posted price. It is conceded that during the period covered by the lease defendant sold to plaintiff 220,490 gallons of gasoline. Instead of charging plaintiff at the current wholesale rate for the first 55,000 gallons defendant actually charged plaintiff the tank wagon price, being two cents higher per gallon. For the 165,490 gallons in excess of the 55,000 gallons defendant failed to allow plaintiff rebate of two cents per gallon. Plaintiff brought this action to recover the excess amount which he had paid and the court directed a verdict in his favor for $3,528.89 which represents the difference between the price defendant charged and that which it should have charged. Judgment unanimously affirmed, with costs.