Texas Co. v. Berry Garage

THOMPSON (R. L.), J.

This is an appeal from a money judgment for the contract price of gasoline. The plaintiff claims the gasoline was purchased pursuant to the terms of a written agreement which was executed by the respective parties February 24, 1928. On the contrary, the defendants contend the gasoline was purchased under the terms of a previous oral agreement which entitled them to a discount of six cents a gallon from the local prevailing retail price thereof while the written contract provides for only four cents discount per gallon. It is asserted the written agreement was executed with the express understanding that it was not to become binding upon the parties with respect to the price of gasoline, but that it was executed for the sole purpose of enabling the plaintiff to use the document to deceive other competing companies by making it appear therefrom that plaintiff was not allowing retail customers a rebate on the current price of gasoline in excess of four cents per gallon.

Over the objection of the plaintiff the defendants were permitted to introduce evidence of this oral agreement to purchase gasoline at a six cent discount per gallon from the current retail price thereof. It is contended this ruling of the court is erroneous since it varies the terms of the written contract upon which the plaintiff’s cause of action is founded.

We are of the opinion this evidence is competent under the pleadings in this case for the purpose of establishing the invalidity of the written contract, which became a direct issue in the case. The amended answer denies that

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the gasoline in question was purchased pursuant to the terms of the written contract which are set out in the complaint. On the contrary, it is therein alleged: “That all gasoline sold and delivered to defendants . . . was sold and delivered pursuant to the terms of an oral agreement made and entered into on said (1st) day of March, 1927, . . . upon the basis of six cents per gallon, less than the current retail price of gasoline, or what is commonly known as six cents differential.” Respecting the invalidity of the written contract, the amended answer affirmatively recites: “That the alleged written agreement referred to in plaintiff’s complaint was not signed, or executed or delivered by defendants as a binding contract between said parties, that it was distinctly understood and agreed by and between defendants and said . . . (plaintiff) that the provisions of said contract . . . would not be binding upon defendants, but that ... all gasoline ordered or purchased by defendants, would be pursuant to the terms and conditions of the hereinabove mentioned oral agreement ... on a six cent differential basis.”