Marble v. Standard Oil Co.

169 Mass. 553 | Mass. | 1897

Knowlton, J.

There was evidence that Burton was an agent who might bind the defendant by any proper contract for the sale of oil. If we. assume, in favor of the plaintiffs, that some or all of the conversations relied on were in the course of his agency, so that they may be used in evidence against the defendant, we must consider what relations between the parties they tend to show.

In none of the counts of the plaintiffs’ declaration is it averred that the plaintiffs have had or were to have the sole agency for the sale of the defendant’s oils, or the exclusive right to sell them, in Worcester or in any other place. One of the counts is upon an alleged contract by the defendant to sell all kinds of refined oils to the plaintiffs at a quarter of a cent per gallon less than the price at which it sold to E. T. Smith and Company, the competitors of the plaintiffs. From all the evidence introduced by the plaintiffs, we understand that they were selling oil through a large territory, covering all the towns and stations except Springfield on the Boston and Albany Railroad, and the branch lines under its control between Newton on the east and Adams on the west, including some towns two miles from stations ; all towns on the Providence and Worcester Railroad to Woonsocket, Rhode Island, and all towns on the Norwich and Worcester Railroad as far as Danielsonville, Connecticut, and all towns between Worcester and Fitchburg and between Worcester and Ayer on the Worcester and Nashua Railroad, including Shrewsbury, Leicester, and other towns not reached by railroads. We understand from the testimony that the plaintiffs were selling in these places in competition with other persons, some of whom bought oil from the defendant, and some from other persons or corporations. The burden of proof was on the plaintiffs, and there is no testimony which indicates that this was not so. Indeed, one of the plaintiffs testified to conversations tending to show that there was a secret agreement between the plaintiffs and the defendant’s agent that the price at which the defendant should sell to them should be a quarter of a cent per gallon less than that at which it was to sell the same kinds of oil to E. T. Smith and Company; and he also testified to conversations from which it expressly appears that the defendant was selling to other persons who were to resell in Athol, and to others who were to resell in the vicinity of Danielsonville, Connecticut. The plaintiffs complain that the prices which they were obliged to pay were too high to enable them successfully to compete with other persons to whom the defendant sold in those neighborhoods.

The conversations relied on by the plaintiffs were nearly all in relation to the price and quality of oil sold to them by the defendant; and the only definite fact referred to in these conversations was the existence of an arrangement under which the defendant was selling to them at a quarter of a cent per gallon less than to E. T. Smith and Company. Beyond that there was nothing more definite than that the defendant would deal with them in such a way as to protect their trade; that is, sell to them on favorable terms, so that they could compete successfully with other parties selling in the same territory. If the arrangement in regard to the price as compared with the price paid by E. T. Smith and Company be treated as a contract, there is no evidence that there was ever a breach of it. As to the other part of the arrangement, we are of opinion that it was too indefinite and too general to be enforceable as a contract. It is manifest that the plaintiffs so considered it. When one of them complained to Burton, in 1889 or 1890, that the defendant was doing its business in such a way as to enable the Maverick Oil Company to take from them the trade of the Worcester Gas Light Company, which they had worked up, Burton replied that the Maverick Oil Company would have to have that business. The plaintiff testified, “ I said I thought it was not the right kind of treatment, but we should have to acquiesce.” So in the conversation with Burton, in 1886, in regard to building a tank station, Burton said that it was the most expensive way to handle oil, that the defendant had built one in Nashua and regretted it, and that they never would build one in Worcester except as a last resort. One of the plaintiffs said, “ Very well.” At this time the right of the defendant to build one in Worcester, if it chose, was asserted by the defendant’s agent and acquiesced in by the plaintiffs. They built one five years afterwards. At another conversation within a year after the former one, the plaintiff said, “ You won’t encroach upon our territory ? ” Burton replied, “No; the trade is being handled well in Worcester; we never expect to build a tank station there.” Here, too, the right to build a tank station in Worcester seems to have been asserted by implication, and not denied. The right of the defendant to sell to other parties in Worcester, who would sell in competition with the plaintiffs, seems never to have been questioned. The contention of the plaintiffs is, that it had no right to sell to the plaintiffs’ customers, or to interfere with their trade. But the conversation with Burton, in reference to building tank stations in Springfield, in Nashua, and in Worcester, implied that the building of a tank station naturally involved the opening of a retail business. If so, the recognized right to build a tank station included the right to sell at retail, even if it opened a new competition with the plaintiffs.

The plaintiffs did not show, nor offer to show, that the defendant ever sold, or tried to sell, to any of their customers. Putting road wagons on the road in Worcester was not necessarily inconsistent with carefully refraining from any interference with the customers of the plaintiffs, and with subjecting the plaintiffs to ne^.ore severe competition than they encountered before.

Moreover, there was no evidence that there was ever any agreement that the arrangement was to continue for any particular time. The plaintiffs were never bound to buy their oil from the defendant for a single day longer than they chose to. So far as appears, the arrangement was to continue only during the pleasure of the parties. It called for no formal notice to terminate it. There is no ground for a contention that it would continue in force after open and notorious acts by one party, known to the other, which were inconsistent with the longer - continuance of it. The building of a tank station in Worcester, and the procurement of road wagons for sales at retail there, while the plaintiffs were living and doing business in that city, were acts of a notorious character, and were an expression of a purpose to terminate the arrangement, if there was an arrangement, not to sell oil at retail there. After the arrangement had come to an end, the defendant might sell as it chose. The only breach of an alleged contract that the plaintiffs offered to prove at the trial was the making of sales from the wagons after the construction of a tank station in Worcester.

We are of opinion that there was no evidence of liability under either of the contracts set out in the declaration.

Judgment on the verdict.