Pyle v. Exeter Refining Co.

SHAW, J. pro tem. Plaintiff appeals from a judgment adverse to him, which was a nonsuit as to the individual defendant, Von Bibra, but a judgment on the merits as to the corporate defendant, Exeter Refining Company, hereinafter referred to as the defendant. Plaintiff, who was engaged in business as an oil broker, sues for a commission claimed to be due him on an exchange of oil between defendant and Comet Oil Company, Ltd., at the rate of one cent per barrel of fuel oil delivered by defendant. Plaintiff brought to the attention of defendant the fact that Comet Oil Company was in the market for fuel oil which defendant had for sale and perhaps a deal could be made between them. As a result of this information a contract was made between defendant and Comet by which defendant exchanged its fuel oil for Comet’s cracked residuum. This contract was in writing and was in the form of a proposal by defendant dated October 3, 1939, and an acceptance by Comet dated October 13, 1939. This contract was to run for six months or until cancelled, each party reserving the right to cancel it on ninety days notice. Later these parties made a second contract, effective February 9, 1940, which cancelled the first contract, but provided for further exchange of the same commodities between them, on somewhat different terms.

One of the questions raised on this appeal is whether plaintiff is entitled to a commission on all oil delivered by defendant to Comet on either of these contracts, or is limited to that delivered under the first contract only. The trial court adopted the latter alternative as expressing the intent of the agreement for commissions, and we think its decision in that respect must be affirmed. The commission agreement was oral. Three persons were present at its making: plaintiff, Von Bibra, who was president and manager of defendant corporation, and W. T. Chappe, who was in the employ of defendant corporation. Each of them admitted that his recollection of the conversation in which the agreement was made was hazy, but each gave some testimony regarding it. Von Bibra testified that “I remember saying to Mr. Pyle that we would pay him one cent per barrel for fuel oil delivered by us under this exchange . . . that the one cent per [238]barrel to be paid on fuel oil delivered by us in exchange to the Comet Oil Company. . .. Under the arrangement or stated under the agreement dated October 3, 1939.” Other testimony gave somewhat different versions of this conversation, but the choice between them was a matter for the trial court. Plaintiff, while denying any recollection of the limitation put on the agreement by Von Bibra, testified: “Q. You did not understand they were agreeing to pay you one cent a barrel on any fuel oil they would send to Comet from then on out ? A. No, I didn’t. Q. It was the particular deal you had under discussion at that time? A. That’s correct.”