Magnolia Petroleum Co. v. Muehl , 1922 Tex. App. LEXIS 213 ( 1922 )

SMITH, J.

From October -22, 1918, to February 10, 1921, Alfred Muehl was the agent at Seguin of the Magnolia Petroleum Company under the terms of written con tracts. The company was engaged in tlie sale of petroleum products which were shipped from time to time to Muehl, and by him sold on commission through a filling station to the public. Periodically Muehl rendered statements to the company, showing amount of products sold and amount on hand. On December 30, 1920, according to the company’s records, Muehl appeared to be short in the amount of products on hand, to cover which shortage the latter executed an invoice, the effect of which was to admit the existence of the shortage and the amount thereof as finally agreed upon and expressed in the invoice. On February 7th following another shortage was ascertained and settled in like manner» it being agreed between the parties that these shortages should be charged against Muehl’s commissions earned in the business as provided in the contract between the parties. On February 10th Muehl was relieved of the agency, at which time it seems undisputed that the amount of his alleged shortage exceeded the amount of the earned and unpaid commissions due him from the company. Subsequently he filed this suit against the company to recover these commissions and obtained judgment for the amount thereof without regard to the alleged shortages, which the jury found did not exist.

[1] In his pleadings Muehl contended that he executed the first shortage invoice under duress, due to threats of criminal prosecution, and that there was in fact no shortage in his accounts. These two issues were submitted to the jury, who found for him on both of them. Notwithstanding the burden of proof rested upon him to prove the facts showing that he signed the invoices under duress, Muehl persistently evaded answering affirmatively the question whether or not he was threatened with prosecution, whereas upon at least one occasion he answered the question directly in the negative as follows:

“Q. When they got you to sign, did they make any threats of sending you to the penitentiary? A. No, sir.”

It is also true that Muehl evaded questions designed to elicit definitely whether or not he executed the invoices on account of any fear of the alleged threats of prosecution, and there was a total failure to make that required showing. He admitted that according to his reports and the, company’s cheeks thereon the shortages existed, but contended that he executed the invoices only because he had no way of disproving the shortages. It was conceded that the company’s products were in his exclusive possession and control, and that under his contract he was responsible for them, and for any losses occurring to them. He testified that these products were subject to evaporation and leakage, but made no pretense of showing to what extent the evaporation or leakage accounted for the undisputed shortage, and repeatedly admitted that losses occurring in that way could not have accounted for the total shortage. It was undisputed, too, that when he executed the discrepancy invoices he questioned the correctness of the ascertained shortages, which were then reduced so as to make a substantial allowance for leakage and evaporation, before he signed up.

[2] The record shows that in his direct testimony Muehl made no reference to the question of duress, not even remotely mentioning the subject. The question was first, raised on cross-examination by the company, which elicited practically all the testimony adduced upon that point. For that reason, we have construed that testimony most, strongly against appellant, but, when that is. done, it still leaves appellee without a case.

The judgment will be reversed, and the-cause remanded.

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