East-West Refining Co. v. Cowan

ARCHBALD, J., pro tem. From a judgment against Mm entered on findings of fact and conclusions of law filed by the trial judge, defendant Cowan has appealed.

The complaint was based on the common counts. Count I charged in substance that defendants became indebted to plaintiff in the sum of $5,477.70 for goods, wares and merchandise sold and delivered to them at their special instance and request within two years last past, and for which defendants and each of them promised and agreed to pay; further alleging the failure to pay said sum or any part thereof. The findings support such allegation. The evidence shows without dispute that for the year ending December 31, 1928, respondent, under a written contract, sold appellant the gasoline required by him at his place of business for six cents per gallon “under the Standard Oil Com[53]pany service station prices for ‘Red Crown’ gasoline in Los Angeles at time of delivery”, within certain maximum and minimum price limits; that it sold and delivered gasoline to appellant after December 31, 1928, and until September 2, 1930, at which time the latter’s business was taken over by a purchaser; that invoices were prepared by respondent accompanying each delivery, specifying the number of gallons delivered and the price per gallon, one copy of which was left with appellant or someone in his 'employ and one was signed by appellant or such employee and returned to respondent’s deliveryman; that monthly statements were sent by respondent to appellant showing dates of delivery, numbers of such invoices and the amount of each charge, as well as the aggregate for the month, the balance owing from the previous month and payments credited. The amounts charged for gasoline on such invoices were paid by appellant without objection as to price or otherwise until the month of May, 1930, and the judgment entered is for the months from May 1 to September 2, 1930.

Appellant urges that there is no evidence to support the findings and judgment. The serious conflict in the evidence is as to whether or not the gasoline delivered after the expiration of said written contract was to be sold, as appellant claims, at the rate fixed by such contract unless appellant was notified of a change, or at the best prices seller could make, as claimed by respondent. The trial court settled such conflict by accepting respondent’s evidence in that regard and we are bound thereby.

It is also urged that there is no evidence of reasonable value of the gasoline furnished. No attempt was made to prove the reasonable value thereof.