*1 (formerly Hal OIL COMPANY HALTOM Appellant, tom-Murphy, Inc.), COMPANY,
PHILLIPS PETROLEUM Appellee.
Fifth Circuit. Kultgen Kultgen Beard, D. & B. Beard, Waco, Tex., appellant. Rehearing July Denied Muldrow, Howell, Hilton S. E. Louis Chase, Howell,
and Ñaman
Smith
Tex.,
Waco,
appellee.
HUTCHESON,
Before
BELL,
Judges.
Circuit
Judge.
BELL,
B.
GRIFFIN
appeal is
the dismissal of
This
complaint alleging
from
breach of contract
ground
the terms
were clear
sustain,
unambiguous and
not
the contention of
producer
is a
and manufac-
petroleum
appel-
products
turer
jobber
Phillips products
lant was the
Phillips purchased
in Waco area.
group
storage
of stations
a bulk
plant in
Waco
Arkansas Fuel Com-
pany
jobber
after
became
in turn leased the
stations
sold the
plant
bulk
appellant. Appellant operat-
stations to
both the wholesale and retail level
gasoline products, making
in the sale of
owned,
sales from stations it
from others
leased from
and from other
owned
third
Appellant paid Phillips $33,358.06 for
being $3,358.06 in cash with the balance
being represented by
in the amount of
which note was
mortgage.
year
secured
About a
parties
thereafter
decided to termi-
relationship
nate their
and entered into
containing
here
paragraphs
numbered
with the first
stating
mutually agreements
all contracts and
between arising
jobber
out of the
relation-
*2
price
property
of
of
and
the form
chase
this
ship.
was
contract
added.)”
equipment.
(Emphasis
by
writ-
and
letter, prepared
a
Phillips.
by appellant to
ten
closings
Prior to the
the
various
under
dispute
to
a
arose as
the
indi
contract
A
paragraph. Appellant
of this
substantive
cates that each
Phillips
pay it
contended that
$30,000
was to
and distinct
independent
in addition to
the bal-
aspect
the
of
each covered some
ance due
the
in the
on
note
amount
para
relationship. We need set out
$22,247.53. Phillips
position
took the
paragraph two
three verbatim
that the balance due it on the note was
provid
and
dealt with certain
to be set off or credited
the
disposition and
consid
for their
it
and these
Paragraph
dis
four
eration therefor.
contentions make
issue here.
option
con
posed over an
Paragraph
only portion
three is the
agreement. Par
of the entire
sideration
dealing
of the entire contract
repur
obligated Phillips
to
five
properties transaction,
Fuel
sold to
theretofore
chase merchandise
and is
and
within
Paragraph
a
six concerned
itself. The last or cancellation sentence
required appellant to
paint
and
contract
in the
is:
Petrole-
Phillips
painting
the cost
reimburse
Company
um
pro
Paragraph seven
certain stations.
covering Haltom-Murphy,
purchase
Inc.’s
by appellant
Phil
to
for
vided
price
property
equipment.”
this
lips
past
due rentals. Then
We must decide whether this sentence
agreed
pay
eight appellant
to
relates,
Phillips contends,
as
other
prior
Phillips
or
due on
all indebtedness
provisions
which have
three
instruments in
execution
properties
to do with the
covered
entire
Para
volved
promissory
mortgage
note and
subject
graph three, the
matter of this
Phillips
and for
which
total
a
controversy provided:
$30,000
repur-
as
"(3) Phillips
Company
Petroleum
price,
chase
or whether
relates to the
conveyed
sold and
has heretofore
appellant
as
contends.
Haltom-Murphy, Inc., a bulk sta-
personal property
Under the first alternative there
certain
purchase
price of
is no
The total consideration
$30,000
was to
with
which
covered
being
part
security
note and various
If,
including
consideration.
Deed
of that
hand,
ments
of Trust and
Mortgage.
applies
properties
to the entire
Chattel
These
To
equipment
are known
and
parties
adopt
prop-
contention of
makes
disregard
erty
equipment. Phillips
Petro-
purchase
leum to
Murphy,
Haltom-
put
Inc.,
or
We cannot
a total considera-
three.
aside
ignore
property
these words and thus the contract
said
light
subject
any
equipment
construed in
them.
must be
downward
adjustment
v. Petrolite
pursuant
Oil
to an
Pure
inven-
Cir.,
tory
cellation” means friend, father their and next William remaining un- Grummitt, the contract Grummitt, duties J. and William J. Plaintiffs-Appeliants, Drilling v. performed, M. Co. M. F. & Co., 372, P.2d 192 Okl. & T. Oil v. Hampton Credit Commercial v. STURGEON WINTER BAY SPORTS 270, 476, and some 176 P.2d 119 Mont. BAY, CLUB OF STURGEON WISCON say gone SIN, George that “can- Resch, John so far as Purvis in dividually Sturgeon Bay Win d/b/a inconsistent with cellation” is Wisconsin, Sports Sturgeon Bay, ter Club of Ex’r., 383, 107 Va. v. Gibson’s Brown dants-Appellees. Defen clear, appear It 386. would S.E. then, that “cancellation” discharge some indicate often used to monetary than full satisfac- Seventh Circuit. here, intend- if the 1962. the note ed to for the entire consideration would then “cancellation” appropriate term to use. most appellant's interpretation of Since making agreement not avoids question surplusage but language used, accounts that, help but conclude at the reasonably least, very meaning.1 susceptible to more than ap- appellee also claims that interpretation pellant’s contract- “for to read However, cash.” “payment of language actually perfectly used is appellee’s view that consistent referred to the indebtedness “* * * clearly meaning one reasonable if after established ambiguous.” emerges interpretation Universal is not rules Daniel, Corp. reasonably susceptible 150 Tex. more Credit C.I.T. remains ambiguous, 243 S.W.2d if than one