Andrews v. National Oil Co.

Clarkson, J. “The office of a demurrer is to determine the legal sufficiency of a pleading, admitting for the purpose the truth of all the matters and things alleged therein.” Davies v. Blomberg, 185 N. C., at p. 496. Mountain Park Institute v. Lovill, 198 N. C., at p. 645-6. In Smith v. Suitt, 199 N. C., at p. 9, speaking to the subject: “The complaint is not demurrable unless it is wholly insufficient. If a demurrer is interposed to a whole complaint and any one of the causes of action is good the demurrer will be overruled.” *272 The facts: The defendant was in possession of a filling station in the city of Rocky Mount, under a lease expiring 30 September, 1932. The service station was equipped with three gasoline tanks buried underground and covered with concrete, two of which had one gasoline pump each, the other having two gasoline pumps connected with the tank by underground pipes through a T-joint. On 6 October, 1930, defendant made a verbal contract “whereby plaintiff agreed until the expiration of said léase to occupy and operate the said service station, buying all gasoline and oil for sale for automobiles from the defendant and paying the defendant daily therefor at current tank-wagon prices, plus one cent additional per gallon, and selling same at current retail prices in Rocky Mount, N. 0., the additional one cent per gallon on the gasoline being paid as rent for the premises and the tank and gasoline pumps, the plaintiff himself owning the air pump, greasing equipment, tools, etc.” Within sixty days plaintiff discovered that he was losing money and complained to defendant, suggesting that the underground tanks belonging to it were leaking. “The defendant assured plaintiff that this could not be so, that it had operated these tanks for a long time and that it knew that they were in good condition.” Relying on the assurances which were untrue and made by defendant in reckless disregard of their truth or falsity, with intent that plaintiff should rely on same, and from the pleadings and by inference he did rely on same, and plaintiff continued to buy from defendant gasoline. The compdaints were repeatedly made by plaintiff to defendant, and defendant assured him “that there could be no leak in the tanks.” On 19 March, 1923, plaintiff made test and found “a loss of eight gallons out of one hundred gallons in the space of five hours. A few days thereafter the defendant’s district manager again insisted that the loss was plaintiff’s fault and not a leak in the tanks, but plaintiff persisted in refusing to permit any gasoline to be put into that tank, and finally the defendant broke up) the concrete and examined the tank and found a leak in the pipe at the T-joint, through which a stream of gasoline as big as a man’s finger was running out. The plaintiff immediately demanded reimbursement from the defendant for gasoline lost through the leak, which demand the defendant referred to its district manager, who ignored it.” The plaintiff now sues for gasoline “which was lost through the leak in the equipment belonging to the defendant into which plaintiff was required to place said gasoline, which was under the sole control of the defendant”; and alleges that “plaintiff is entitled to recover the same from the defendant in equity and good conscience as money had and received to his use.” *273 It is said that fraud is bard to define as the ramifications are so subtle that they are hard to discover — like unto the serpent in the Garden of Eden “more subtle than any beast of the field.” The relationship between plaintiff and defendant, under the contract between them, is not easy to define. "We do not think it necessary to go into the different aspects of employer and employee, landlord and tenant, licensor and licensee, sales agent or commission man, bailor and bailee, independent contractor, etc. These are elaborately argued pro and con on the hearing and in the briefs of litigants. In Acceptance Corporation v. Mayberry, 195 N. C., at p. 513, it is said: “The Court has repeatedly said that in order to determine the nature of a contract, and the relation of the parties thereto, with respect to each other, and with respect to the subject-matter of the contract, it looks to the real intention of the parties and construes their contract accordingly, without much, if any, regard to the name by which it is designated or to the particular language employed.” “The law is, that ‘an agreement ought to receive that construction which will best effectuate the intention of the parties to be collected from the whole of the agreement,’ and that ‘greater regard is to be had to the clear intention of the parties than to any particular words which they may have used in the expression of their intent.’ Anson on Contract, p. 425; Wigmore on Evidence, sec. 2460.” Cole v. Fibre Co., 200 N. C., at p. 489; Rushing v. Texas Co., 199 N. C., 173. The defendant was in possession of a gasoline filling station. It had buried underground, concealed in the earth and covered with concrete, three gasoline tanks for the purpose of housing gasoline. Two of these had one gasoline pump each and the other had two gasoline pumps, connected with the tank by underground pipes through a T-joint. In the pipe at the T-joint to the gasoline tanks was a leak, which was unknown to plaintiff. Defendant had the sole control over the tanks, pipe and T-joint. They were installed by and the property of defendant. Defendant knew, or in the .exercise of due care ought to have known, of the leak. Plaintiff each day put the gasoline which he sold and made a cent a gallon on, into the tanks. Every assurance was made plaintiff during the loss of gasoline that the tanks were in good condition and there was no leak. Plaintiff relied and' acted on these assurances, which were untrue, the truth or falsity of which, in the exercise of due care, defendant ought to have known were untrue. Plaintiff kept buying gasoline from defendant, paying for same and at last discovered by test the leakage in the pipe at the T-joint — which was owned and controlled by defendant. Finally defendant broke up the concrete, which it had the sole control over, and found a leak in the pipe at the T-joint, through which a stream as big as a man’s finger was running out. *274 Call the contract what you may, we think plaintiff has alleged a good cause of action against defendant. The strength of the common law is its elasticity to meet the varying situations as they arise in the course of human events. The filling station, which has come into play with the motor vehicles, and their relation to the gasoline and oil distributors are interwoven. In the present case one party owned the land, the operator the air-pump, greasing equipment, tools, etc. The distributor the underground pipes, tanks, T-joint, etc., concealed and covered with cement, and the tanks connected by underground pipes with a T-joint. The operator got one cent a gallon for his services and the distributor each day supplied the gasoline as needed. The demurrer was properly overruled. In Bahnsen v. Clemmons, 79 N. C., at p. 557, we find: “ ‘When the defendant,’ says Mr. Greenleaf ‘is proved to have in his hands the money of the plaintiff which ex equo et bono, he ought to refund, the law conclusively presumes that he has promised so to do, and the jury are bound to find accordingly; and after verdict the promise is presumed to have been actually proved/ 2 Greenleaf Ev., sec. 104. ‘The count for money had and received which in its spirit and objects has been likened to a bill in equity, may in general be proved by any legal evidence showing that the defendant has received or obtained possession of the money of the plaintiff which in equity and good conscience he ought to pay over to the plaintiff.’ Ibid., sec. 117.” In Jenkins v. Wood, 201 N. C., at p. 463, is the following: “The defendant insists that fraud is not sufficiently pleaded, but the facts warrant a recovery for money had and received, and the complaint, by liberal construction, is broad enough to support such theory. Stroud v. Ins. Co., 148 N. C., 54, 61 S. E., 626; Mitchem v. Pasour, 173 N. C., 487, 92 S. E., 322.” We see no error in the court below overruling the demurrer. The judgment is Affirmed.