Seaside Petroleum Co. v. Steve E. Rawl, Inc. , 177 Ga. App. 341 ( 1985 )

Carley, Judge.

On October 2, 1978, a “Motor Fuel Sales Contract” was entered into by and between Knight Oil Company (Knight Oil), assignor of appellant Seaside Petroleum Company, Inc. (Seaside) as seller and appellee Steve E. Rawl, Inc. (Rawl) as buyer. The operative language of. the agreement was that “[Knight Oil] agrees to sell and deliver to [Rawl] . . . [Rawl’s] requirements of Exxon, Exxon unleaded, and Exxon Extra at the prices and upon the terms herein contained.” The agreement was to be effective from the date of the contract for a period of ten years and included the following provision: “There is no understanding or agreement, express or implied, on any of the subjects referred to in this agreement other than those specifically stated herein.” All of Knight Oil’s rights and obligations under the agreement were transferred to appellant Seaside on June 19,1981. In 1981, Rawl sent Seaside a letter stating: “[A]fter November 15, 1981, Steve E. Rawl, Inc., will no longer require any goods or services from you.” The pleadings show that, thereafter, Rawl purchased all of its gasoline requirements from Gulf Oil. Seaside brought this action for breach of contract against Rawl. Summary judgment was granted in favor of Rawl, and Seaside appeals.

1. Seaside contends that the agreement is ambiguous and that a jury question remains as to the intentions of the parties. Particularly, Seaside contends that there was an unexpressed obligation of Rawl to buy from Seaside all of its requirements of gasoline and not just its requirements of Exxon. A review of the document indicates that not only is there no obligation imposed upon Rawl to purchase all of its requirements of gasoline from Seaside, but also that there is no obligation imposed upon Rawl to buy even its Exxon requirements from Seaside. “While the writing attached to the [complaint] as an exhibit purports to bind [Seaside, as seller’s assignee, to furnish all of Rawl’s requirements for the named products], one may look in vain for any promise of [Rawl] that it will purchase or distribute any of such products.” (Emphasis supplied.) Miami Butterine Co. v. Frankel, 190 Ga. 88, 94 (8 SE2d 398) (1940). See also Pepsi-Cola Co. v. Wright, 187 Ga. 723 (2 SE2d 73) (1939); Morrow v. Southern Express Co., 101 Ga. 810 (28 SE 998) (1897); Sealtest &c. v. Evans, 103 Ga. App. 835 (120 SE2d 887) (1961). There simply was no promise to purchase contained in the “Motor Fuel Sales Contract.”

The Supreme Court’s decision in Crawford v. Baker, 207 Ga. 56 (60 SE2d 146) (1950) does not require a different result than that we reach in the instant case. By executing the contract at issue in Crawford, the retail dealer sought to be held responsible specifically and unequivocally agreed to “sell only and purchase only for resale in the operation of said business, petroleum products handled by the [wholesale dealer].” Crawford v. Baker, supra, 59. In Crawford, the Supreme Court held that the fact that the wholesale dealer did not specifically agree to furnish the products would not render the contract void for lack of mutuality in an action against the retail dealer who did specifically agree to purchase such products. In this case, the retail dealer made no agreement to purchase any products from the wholesaler and the trial court correctly granted summary judgment as to Seaside’s claim for breach of the contract to purchase petroleum products.

2. However, a review of Seaside’s complaint reveals that, in addition to seeking damages for Rawl’s breach of the contract to purchase petroleum products, Seaside also alleged that it had been damaged “in the additional sum of $19,495” as a result of Rawl’s failure to return the major part of the equipment placed on Rawl’s premises. In this connection, the contract specifically stated that “all equipment installed at buyer’s location by seller shall remain the property of seller and buyer shall have no interest therein.” The allegations concerning the claim for damages based upon Rawl’s failure to return the equipment have not been pierced and the trial court erred in granting summary judgment as to this claim.

Judgment affirmed in part and reversed in part.

Banke, C. J., Deen, P. J., Benham and Beasley, JJ., concur. McMurray, P. J., Birdsong, P. J., Sognier and Pope, JJ., dissent.