No. 33522. | Miss. | Apr 10, 1939
Lead Opinion
The question presented for decision on this appeal involves the consideration of numerous features of the contract *526
between the oil company and its distributors of petroleum products which was in issue in the case of Texas Company v. Leon L. Wheeless et al. (Miss.),
Those provisions are: (1) The appellant oil company owns and agrees to maintain the bulk station plant and its equipment. (2) The restrictive covenant as to the distributor not engaging in the business of selling other petroleum products is confined to the life of the contract in question, whereas in the case of Texas Company v. Wheeless et al., supra, the covenant extended beyond the termination of the contract. (3) All contracts with retail customers relating to the equipment furnished them by the oil company and installed by the distributor *527 must be in the name of the oil company. (4) The oil company reserves the right to select certain persons in the territory served by distributor to whom the distributor may sell on credit without responsibility or risk to himself, except that he is to assist the oil company to make collection of these accounts, if called upon to do so, in consideration of the commission which he receives in the making of such sales on the oil company's account. (5) The distributor is expressly required to keep his trucks and other equipment, used in the distribution of the consigned product, in first class workable condition. (6) Distributor has discretion to make adjustments of customer's complaints as to shortage in quantity of products delivered, while the oil company is to make adjustments as to quality, unless the distributor has failed to deliver the quality ordered by customer after the product of such quality has been furnished to distributor on consignment by the oil company. (7) The distributor is required to pay the expense of any litigation between a customer and the oil company growing out of the transactions had between the distributor and his customers. (8) The oil company agrees to keep the books relating to the accounts of customers, while the distributor is also required to keep complete records in the manner required by the oil company, and the oil company agrees to assist the distributor in the collection of the accounts by sending out statements therefor in its own name, and to otherwise cooperate with him in that behalf; and also the books in regard thereto are to be turned over to the oil company as its property at the termination of the contract. (9) The contract requires the distributor to pay for the products delivered him by the oil company at its prices, but does not undertake by any language to control the price at which the distributor shall sell to his retail customers. (10) The contract expressly provides that the oil company shall have no direction or control of the distributor in the employing and discharging of such assistants as the distributor may *528 employ in the distribution and sale of the products; "nor any right to in any manner direct or control said employees of the distributor in and about the performance of their work." (11) The distributor agrees "to use his very best efforts to sell and distribute . . . said commodities;" whereas under the contract in Texas Company v. Wheeless et al., supra, it is stipulated that the "Consignee shall diligently market and distribute the petroleum products" — a distinction not material here, unless the use of the words "his best efforts" as used in the present contract gives these provisions a different meaning. The question of whether the fact that the contract contemplates that the consignee, factor, independent contractor, commission merchant, or other contracting party, shall give his personal attention and services to its performance is discussed in the case, supra.
While we are of the opinion that this case is near the line of demarcation between liability and non-liability under the Unemployment Compensation Act here under consideration, we have concluded that since the contributions imposed upon employers under the Act, for the benefit of their employees when they may become unemployed, have been held to constitute an excise tax, and that under the authorities cited in the other case hereinbefore referred to the statute must be construed so as to resolve any doubt as to its application in favor of the taxpayer and against the taxing power, we would not be justified in holding that a different conclusion should be reached in these two cases. Several of the stipulations mentioned as appearing in the contract now before us and as not being found in the contract under review in Texas Company v. Wheeless et al., supra, are discussed in the cases of Texas Company v. Jackson,
Reversed and remanded.
Dissenting Opinion
I am unable to agree that this case should be reversed, and I think that the contract, in material particulars, is different from that in the case of Texas Company v. Wheeless (Miss.),
I am of the opinion that when this contract is construed so as to give it full effect, not only in the actual verbiage, but in the necessary implications from that verbiage, that the American Oil Company is subject to the charges sought to be imposed upon it in this suit.
It follows that I am of the opinion that the judgment should be affirmed. *530