Gilmore v. Texas Co. (100 Fla. 169, 1930)

Buford, J.

— In this case the plaintiff in error was a gasoline dealer running three filling stations in Escambia County, outside the city limits of Pensacola.

There was a .contract between the parties for the purchase and sale of gasoline to be used at the three stations owned by the plaintiff in error. The provisions in the contract as to price were as follows:

“PRICE: Seller’s tank wagon price, current date of delivery, less a discount of two and one-half (2%c) per gallon, said discount to be allowed only in the event that actual deliveries hereunder amount to not less than

Station No. 1, 3000

“ No. 2, 1000

“ No. 3, 1000

within a calendar month. ”

The suit was for an overcharge of lc per gallon for gasoline sold and delivered to the plaintiff in error by the defendant in error between May 9th and July. 9th, 1928, amounting to 41,912 gallons of gasoline and amounting to $419.12.

The declaration Avhich the. plaintiff in the court below stood on was one in assumpsit containing amongst others common counts for money paid by the plaintiff for the defendant at defendant’s request; money received by the defendant for the use of the plaintiff. In Cullen v. S. A. L. R. R. Co., 63 Fla. 122, 58 So. R. 182, this Court say:

“A common count for money payable to the plaintiff for money had and received by the defendant for the use of the plaintiff is applicable in all cases where the defendant has obtained money Avhich, ex aequo et bono, he ought to refund.

‘ ‘ A common count for money had and received lies1 for money paid by mistake