Citations
- 79 F. Supp. 239
Full opinion text
HANNAY, District Judge.
The Court finds the following to be the facts:
1. Plaintiff, Southern Coast Corporation, sued Sinclair Refining Company, as assignee of Terminal Refining Corporation, upon three written contracts (and oral agreements alleged to have been made contemporaneously therewith), which are attached hereto and marked “Exhibits 1, 2 and 3,” respectively. Plaintiff’s trial pleading is in its second amended petition, to which reference is here made. Defendant’s trial pleading is in its second amended answer, to which reference is also made. Prior to the filing of the second amended petition in which reformation was first asked and ambiguity was first specifically alleged, a hearing was held before one of the judges of this Court in which plaintiff sought a temporary mandatory injunction to prevent defendant from severing its connection with plaintiff’s pipe line and requiring defendant to continue to purchase all of the gas needed by it from plaintiff through the year ending December 31, 1951, at 5%(é per 1,000 cubic feet. Defendant answered this complaint as evidenced by their first amended answer. After a hearing, the Court refused the injunction, holding in effect that the defendant, Sinclair Refining Company, was within its rights in purchasing gas after December 31, 1945, from Sinclair Prairie Oil Company. A copy of the Court’s opinion is attached hereto and marked “Exhibit 4” for identification. After the Court rendered its opinion on the application for a temporary injunction, plaintiff filed its second amended petition and defendant filed its second amended answer. Trial was had at Corpus Christi, Texas, in which evidence was then adduced and argument of counsel was had. This trial began on January 14, 1947, and ended on January 17, 1947; whereupon the Court took the case under advisement, considered the pleadings, the record and the briefs of the parties.
2. Just prior to the completion of the evidence on January 17, 1947, the plaintiff presented its trial amendment, in which, for the first time, plaintiff alleged Sinclair Prairie Oil Company was “a reputable, responsible and then existing gas pipe line distributing company,” and alleged that the purchase of gas by plaintiff from Sinclair Prairie Oil Company and the laying of the line under Nueces Bay to defendant’s refinery without permitting plaintiff to meet the price and terms of Sinclair Prairie Oil Company, constituted a breach of the contract. The defendant presented objections to the filing of such trial amendment. Evidence was then practically completed and issues drawn and made. The Court refused to permit the filing of the trial amendment for the following reasons: First, it came too late, plaintiff having theretofore taken a contrary stand; and, second, the evidence in the Court’s opinion failed to justify the allegations made. Plaintiff excepted to the ruling of the Court. The trial was completed and the argument was had on the evidence presented upon the issues made by the pleadings on file prior to the presentation of trial amendment.
3. Plaintiff sues Sinclair Refining Company as assignee of Terminal Refining Corporation, alleging that the former assumed all the obligations and liabilities of the latter, including the written and oral contracts sued upon. Defendant denies that it assumed any obligations imposed by the alleged oral contracts. The proof shows that on the 16th day of December, 1942, Consolidated Oil Corporation owned all of the stock in Sinclair Refining Company and purchased the stock of Terminal Refining Corporation. Thereafter, Consolidated Oil Corporation dissolved Terminal Refining Corporation, and as a step in the dissolution substantially all of the assets of Terminal Refining Corporation was conveyed by it to Sinclair Refining Company for a stated money consideration, which was paid, and Sinclair Refining Company assumed all the debts and liabilities of the Terminal Refining Corporation. Sinclair Refining Company had no notice of any of the oral or verbal arrangements or contracts sued upon unless and except as notice may be imputed to them under the record as stated.
4. It is alleged by plaintiff that Sinclair Refining Company took all of its gas from plaintiff up to and including the year 1945,
but that several months prior to December 31, 1945, Sinclair Refining Company notified plaintiff that it would not take gas from it after December 31, 1945 but would purchase its gas from Sinclair Prairie Oil Company. Plaintiff alleges that it had the preferential right to furnish Sinclair Refining Company with all of its gas requirements through 1951 at per 1,000 cubic feet after January 1, 1946, unless prior to December 31, 1945, Sinclair Refining Company obtained a bid for less than 5%^S per 1,000 cubic feet from a then existing, reputable and responsible gas pipe line distributing company, in which event Sinclair Refining Company was required to submit such bid to plaintiff and plaintiff had the right either to accept such bid and furnish the gas at the price and on the terms therein stated, or to refuse to do so, in which event Sinclair Refining Company was free then to purchase its gas requirements elsewhere for the years beginning January 1, 1946, and ending December 31, 1951. Plaintiff alleges that some time pri- or to December 31, 1945, defendant, Sinclair Refining Company, breached its contract, in that, instead of obtaining a bid from a then existing, reputable and responsible gas pipe line distributing company for the years stated, to-wit: January 1, 1946 through December 31, 1951, it contracted with an affiliate corporation, Sinclair Prairie Oil Company, for gas during such years at a comparatively cheaper price, to-wit: 3