Northwest Gas Supply, Inc. v. Domestic Gas Co.
Northwest Gas Supply, Inc. v. Domestic Gas Co.
Opinion of the Court
In these actions, which were consolidated for trial, plaintiff, a wholesale distributor of propane gas, seeks to recover amounts allegedly due from the sale of gas to defendants. Defendants counterclaimed alleging that they were overcharged in violation of an agreement by plaintiff not to charge defendants a higher price than that charged other retail distributors. Plaintiff appeals from a judgment allowing defendants to set off against the amounts claimed by plaintiff damages for breach of the alleged agreement.
Plaintiff argues that since the alleged oral agreement did not obligate defendants to purchase gas from plaintiff, it lacked mutuality of obligation and therefore there was no contract. Although it is true that defendants were not obligated to purchase gas from plaintiff, the arrangement may be regarded as an invitation by plaintiff for offers and an acceptance of the offers when defendants entered each order with plaintiff, at which time an executory contract arose. The contract became executed when the sales were made pursuant to the order. Plaintiff’s contention that no contract was created must be rejected.
Plaintiff next contends that, assuming a contract was created, there was no substantial evidence from
Evidence of the applicability of the alleged contract to the subsidiaries is meager. Mr. Robert Maloney, an officer of one of the defendants, testified that the parties had agreed that “Suburban would treat these two companies [defendants] on as favorable basis as they would sell to any other distributor in that area engaged in a similar type of business.” He further testified that he was prompted to enter into the agreement because he was “concerned that Suburban might make prices available to other retail outlets in our neighborhood at lower prices which would permit them to cut our market and undercut our price.”
There is no evidence that the parties ever discussed the applicability of the agreement to the subsidiaries. This issue could be resolved by the trier of fact only on the basis of the testimony of Mr. Maloney. Even if the evidence is regarded as establishing that defendants entered into the agreement with the understanding that the term “any other distributor” was intended to apply to the wholly owned subsidiaries of Suburban Gas, this does not conclude the matter. Defendants’ unilateral interpretation of the term “distributor” cannot be imposed upon plaintiff as a part of the agreement unless the interpretation is reasonable.
It is apparent, then, that an agreement to charge defendants no higher price than that charged Suburban Gas subsidiaries would not provide defendants with any protection relevant to the avoidance of retail underpricing by the subsidiaries.
In the present case plaintiff sold gas to the subsidiaries at cost. Accepting defendants’ interpretation of the agreement, they too are entitled to purchase gas at plaintiff’s cost — at least until plaintiff or the parent should decide to change their bo oldie eping procedure. Why plaintiff would want to confer this benefit upon defendants without any reciprocal benefit to itself is not explained by defendants.
There being no evidence from which the jury could conclude that the agreement is applicable to sales to the subsidiaries, the judgment of the trial court is reversed and the cause is remanded with the direction to enter judgment for plaintiff as prayed for in its complaint.
Reversed and remanded.
By stipulation of the parties only two issues were to be submitted to the jury; all other issues to be tried by the court. The two segregated issues for the jury were as follows:
“1. Did Northwest Gas Supply, Inc. through its agents, make a price contract with Klamath Gas Company and Domestic Gas Company as contended by Klamath and Domestic?
“2'. Did Klamath and Domestic make the payments to October 1062 to Northwest with knowledge that the prices were more than the price charged any other customer of Northwest Gas Supply, Inc. in the State of Oregon?”
Whether this was done to gain a tax advantage or to obtain some other benefit is irrelevant in the present inquiry.
070rehearing
ON PETITION FOR REHEARING
Defendants seek a modification of the mandate in which we directed the trial court to enter judgment for plaintiff as prayed for in its complaint.
Our mandate was predicated upon the assumption that there was no evidence to support any part of defendants’ counterclaim. We are now convinced that this assumption was erroneous and that the trial judge as the trier of fact could find that plaintiff’s violation of the agreement resulted in a loss to defendants. Therefore, the mandate is modified as follows: The cause is remanded with directions to make findings as to the difference, if any, between the prices paid by defendants and the prices plaintiff charged those
Petition for rehearing denied; decree modified.
Reference
- Full Case Name
- NORTHWEST GAS SUPPLY, INC. v. DOMESTIC GAS COMPANY
- Cited By
- 1 case
- Status
- Published