On appeal from the Supreme Court.
For the appellants Shell Eastern Petroleum Products, Incorporated, Louis B. LeDuc.
For the appellants Edgewood Service Corporation, Maurice L. Praissman.
For the respondent, Bleakly, Stockwell & Burling.
The opinion of the court was delivered by
PERSKIE, J. This is defendants' appeal from judgments based on jury verdicts in favor of the plaintiff. These judgments cannot be sustained for reasons which become apparent upon a recurrence to the rather involved factual situation here presented.
Suit was instituted by the plaintiff against the Edgewood Service Corporation (hereinafter called Edgewood) and the Shell Eastern Petroleum Products, Incorporated (hereinafter called Shell), jointly and severally. It is important to
mark the fact that the complaint relates to three separate items only: (1) an alleged unlawful eviction for which damages are sought in an action of trespass quare clausum fregit; (2) an alleged conversion of personal property for which damages are sought in an action of trespass de bonis asportatis; and (3) damages for failure on the part of the defendant Edgewood to return the sum of $100 deposited on account of an agreement made between the plaintiff and Edgewood. There was also a counter-claim by Edgewood against the plaintiff in which the former sought to recover damages for injury to a service station, and damages for personal property loaned by Edgewood to plaintiff. Judgment on this counter-claim was for the plaintiff and the propriety thereof appears to be unchallenged on this appeal.
The proofs disclose that Morris Stempa, the owner of the service station in question leased this station to the defendant Shell for three years commencing November 15th, 1929. Stempa then conveyed the station to Edgewood (of which corporation he had control), and that company executed a renewal lease to Shell to run for three years commencing November 14th, 1933. Throughout the entire period in controversy Shell was paying regularly, first to Stempa and then to Edgewood, the stipulated rent of one cent per gallon of gasoline sold on the premises. At the time of the renewal lease from Edgewood to Shell, Stempa was operating the station for Shell. Then the plaintiff in this action was solicited by Stempa to take over the operation of the station. As an inducement to plaintiff, Stempa procured Edgewood to enter into a written agreement with the plaintiff for the sale of certain equipment at the station owned by Edgewood and for the loan of other equipment. This agreement was conditioned upon the plaintiff's executing a lease for the station with Shell. An "operating agreement" between Shell and the plaintiff was then executed on or about July 6th, 1933. Neither Shell's representative, one Smith, nor Shell itself was ever aware of the contract of sale and loan between Edgewood and the plaintiff. This "operating agreement" was not a lease but merely gave plaintiff a right to buy and sell Shell products at the station and to use Shell's equipment
for this purpose. Several changes were made in the dates on this agreement but the material provisions thereof remain unaltered and the changes that were made therein do not affect this controversy.
Plaintiff continued under the operating agreement until the fall of 1934. On October 17th, 1934, Shell served notice of the termination of the agreement because of the alleged failure of the plaintiff to conduct the business properly. Plaintiff denied this charge but this is immaterial as the terms of the agreement provided for termination by either party for any or no cause upon notice. Several extensions in time were granted the plaintiff, who, evidently in anticipation of removal had on November 1st, 1934, obtained a lease for a garage nearby. On December 5th, 1934, Smith, Shell's representative, Stempa, and one Jeffries, an employe of Stempa, took possession. They inventoried the gas and oil and removed plaintiff's equipment. In accordance with the "operating agreement" Smith tendered plaintiff cash for the amount of the inventory. This tender was refused as was a money ...