Adams v. Can-Dee Oil Corp.

Court of Appeals of Texas

Adams v. Can-Dee Oil Corp.

357 S.W.2d 808, 1962 Tex. App. LEXIS 2477

CourtCourt of Appeals of Texas

DecidedMay 10, 1962

Docket3983

StatusPublished

Cited by11 cases

This text of 357 S.W.2d 808 (Adams v. Can-Dee Oil Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Adams v. Can-Dee Oil Corp., 357 S.W.2d 808, 1962 Tex. App. LEXIS 2477 (Tex. Ct. App. 1962).

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Opinion

WILSON, Justice.

In a non-jury trial judgment was rendered for defendant in plaintiff’s suit for commissions alleged to be due under a written contract of employment. The contract provided plaintiff was to receive 2¾/⅝ per gallon on gasoline sales as compensation for managing defendant’s filling station. The sum due, if all sales were computed at the 2½5⅞ rate, was stipulated. No findings or conclusions were filed.

Plaintiff introduced in evidence the daily retail inventory balance sheets signed by plaintiff on which plaintiff’s compensation had been paid by defendant. Many of these sheets, signed by plaintiff and furnished by him to defendant as the basis on which compensation was computed and paid, show his commission rate as 1⅜ and 2‡ per gallon for certain days. Plaintiff died before trial.

Appellants’ argument is that since the employment contract provided it could be altered only by mutual agreement in writing, when plaintiff signed the written balance sheets his compensation had already become fixed and liquidated in amount, and any agreement to accept a lower commission was without consideration. A written agreement not to modify a contract except in writing does not preclude an oral modification. Morrison v. Ins. Co., 69 Tex. 353, 6 S.W. 605, 609; Gulf Production Co. v. Continental Oil Co., 139 Tex. 183, 132 S.W. 2d 553, 164 S.W.2d 488, 491; Apperson v. Shofner, Tex.Civ.App., 351 S.W.2d 367, 369; 13 Tex.Jur.2d p. 505.

The signed balance sheets furnished by plaintiff to defendant showing the rate at which his commission was computed and paid (which it was stipulated defendant acknowledged and approved), constituted, however, a written agreement. The requirement of consideration for the modification is supplied by the elementary principle of contract law that writing imports consideration. Wright v. Robert & St. John Motor Co., 122 Tex. 278, 58 S.W.2d 67. Affirmed.

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WILSON, Justice.

In a non-jury trial judgment was rendered for defendant in plaintiff’s suit for commissions alleged to be due under a written contract of employment. The contract provided plaintiff was to receive 2¾/⅝ per gallon on gasoline sales as compensation for managing defendant’s filling station. The sum due, if all sales were computed at the 2½5⅞ rate, was stipulated. No findings or conclusions were filed.

Plaintiff introduced in evidence the daily retail inventory balance sheets signed by plaintiff on which plaintiff’s compensation had been paid by defendant. Many of these sheets, signed by plaintiff and furnished by him to defendant as the basis on which compensation was computed and paid, show his commission rate as 1⅜ and 2‡ per gallon for certain days. Plaintiff died before trial.

Appellants’ argument is that since the employment contract provided it could be altered only by mutual agreement in writing, when plaintiff signed the written balance sheets his compensation had already become fixed and liquidated in amount, and any agreement to accept a lower commission was without consideration. A written agreement not to modify a contract except in writing does not preclude an oral modification. Morrison v. Ins. Co., 69 Tex. 353, 6 S.W. 605, 609; Gulf Production Co. v. Continental Oil Co., 139 Tex. 183, 132 S.W. 2d 553, 164 S.W.2d 488, 491; Apperson v. Shofner, Tex.Civ.App., 351 S.W.2d 367, 369; 13 Tex.Jur.2d p. 505.

The signed balance sheets furnished by plaintiff to defendant showing the rate at which his commission was computed and paid (which it was stipulated defendant acknowledged and approved), constituted, however, a written agreement. The requirement of consideration for the modification is supplied by the elementary principle of contract law that writing imports consideration. Wright v. Robert & St. John Motor Co., 122 Tex. 278, 58 S.W.2d 67. Affirmed.

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357 S.W.2d 808, 1962 Tex. App. LEXIS 2477, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adams-v-can-dee-oil-corp-texapp-1962.

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