FILED

December 30, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

FRED MARSHALL, )

)

Plaintiff/Appellant, ) Rutherford Circuit

) No. 32618

VS. )

) Appeal No.

JACKSON & JONES OILS, INC., ) M1997-00104-COA-R3-CV

)

Defendant/Appellee. )

APPEAL FROM THE CIRCUIT COURT FOR RUTHERFORD COUNTY

AT MURFREESBORO, TENNESSEE

THE HONORABLE J. S. DANIEL, JUDGE

For the Plaintiff/Appellant: For the Defendant/Appellee:

Frank M. Fly Allen Shoffner

Murfreesboro, Tennessee Shelbyville, Tennessee

AFFIRMED IN PART; VACATED IN PART;

AND REMANDED

WILLIAM C. KOCH, JR., JUDGE
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O P I N I O N

This appeal involves a contract dispute betwe en a service station owner and his

gasoline supplier. The owner filed suit against the supplier in the Circuit Court for

Rutherford County alleging that the supplier’s breach of the retail price provisions of their

contract forced him out of business. The supplier counterclaimed for the unpaid cost of

gasoline. The trial court, sitting without a jury, found that the supplier had not breached the

agreement and that the supplier had not proved that it was entitled to payment for unpaid

gasoline. Both the owner and the supplier have appealed. The owner asserts that the trial

court misconstrued the terms of the supply contract; while the supplier argues that the trial

court erred by dismissing its counterclaim. We have determined that the trial court

misconstrued the contract and, therefore, vacate the judgment for the supplier on the owne r’s

breach of contract claim. We have also determined that the trial court correctly dismissed

the supplier’s counterclaim. Accordingly, we vacate the judgment in part and remand the

case for the assessment of damages against the supplier.

I.

Fred Marshall operates a Handy Market on the corner of Bradyville Road and

Minerva Drive in Murfreesboro. In 1989, fearing competition from other convenience store

chains, he purchased a service station at the same intersection in order to prevent the site

from being acquired by a competitor. In August 1989, he signed a ten-year “consignment

supply agreement” with Jackson & Jones Oils, Inc. In return for Mr. Marshall’s agreement

that Jackson & Jones would be his exclusive source for gasoline, diesel fuel, and other

petroleum products, Jackson & Jones agre ed to furnish him with the necessary above-ground

equipment and gasoline needed to operate his business.

The agreement, as its name indicated, was a true consignment. Mr. Ma rshall did not

purchase petroleum products from Jackson & Jones and then resell them to the public.

Rather, Jackson & Jones retained ownership of the fuel delivered to Mr. Marshall’s service

station until it was sold through either the self-service or full-service pumps. The agreement

provided that the parties would be compensated by splitting the proceeds from the sale of the

petroleum products. For self-service gasoline, the parties split the profits equa lly. For fullservice gasoline, Mr. Marshall received a larger share of the proceeds “as compensation for

labor cost in pumping the product and providing full service.” The agreement required Mr.

Marsha ll to file a weekly report of the number of gallons of fuel sold from each pump for the

preceding week and to pay Jackson & Jones a “remittance price” for each gallon sold.
1

[Remittance price] = [Retail pump price] [Marshall’s share of gross margin].

2

[Gross margin] = [Retail pump price] [Transfer cost].

3

[Transfer cost] = [Wholesale cost of fuel] + [Transportation costs] + [state & federal taxes].

4Mr. Marshall explained how the consignment agreement worked in practice as follows:

If I priced the pump, self-service 119.9 or a one cent spot, that means Kwik

Sak would be at 118. Now, to clarify what the price would be, Jackson & Jones

would call me and tell me what their cost would be, what the actual cost would be

for the gasoline, I’d take that actual cost from Jackson & Jones to me, minus 119.9

pump price, and let’s say the actual cost was $1.10 per gallon, so that would leave

9.9 cents gross profit for gasoline in that particular price product. And you would

divide that by two, which would be 50 percent, that would be my gross margin profit

and that would also be Jackson & Jones gross margin profit above whatever they

already charged me for cost.

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The consignment supply agreement defined the “remittance price” as the retail pump

price minus Mr. Marsha ll’s share of the “gross margin.” 1

 The “gross margin” was the

amount that the retail pump price of the fuel had been marked up by mutual agreement over

the “transfer cost” of the fuel. 2

 The “transfer cost” of the fuel was the cost of the fuel to

Jackson & Jones plus the transportation costs plus the applicable state and federal taxes.3

The agreement did not set a specific retail pump price for the fuel sold at Mr.

Marshall’s service station. Instead, it provided that the pump price for any given sa les report

period would be the amount set “by mutual agreement” between Mr. Marsha ll and Jackson

& Jones. During the negotiations leading up to the agreement, John Keith Jackson of

Jackson & Jones prepared a proposal suggesting that the pump price for self-service fuel at

Mr. Marshall’s store should be one cent per gallon higher than the pump price of the

unbranded gasoline be ing sold at the Kwik Sak convenience store nearest to Mr. Marsha ll’s

station. This concept was incorporated into paragraph eight of the parties’ agreement which

provided, in part, that “[t]he above computation [the computation of Mr. Marshall’s share of

the gross margin] applies to product sold through Operator’s self-service ope ration and is

based on being branded and giving a one cent spot to any unbranded ma rketers in the area .”4

The pricing mechanism in the consignment supply agreement worked profitably for

both Mr. Marshall and Jackson & Jones until the Gulf War. In September 1990, Jackson &

Jones began dictating to Mr. Marshall what the retail pump price of the fuel would be rather

than arriving at a price by mutual agreement. In Mr. Marshall’s words:

It turned around and there was no longer a mutual agreement.

[Jackson & Jones] would call me each Friday morning to tell me

what the pump prices will be and the self-service will be on the

street, and that was it irregardless of what the competition was

doing. I would re late to [Jackson & Jones] that Kwik Sak is
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over there selling gasoline for 101.9, do you want me to go to

$109.9? Do you realize what it’s going to do to business?

Despite Mr. Marshall’s repe ated objections, Jackson & Jones continued to instruct him to

increase the price of his self-service fuel until it was eight cents per gallon higher than the

price of the self-service fuel at the nearest Kwik Sak. Jackson & Jones blamed these price

increases on the increased cost its supplier was cha rging for fue l. When Mr. Marshall

inquired why the pump price of the fuel being sold at his station was no longer being set at

one cent per gallon higher than the comparable fuel being sold at the Kwik Sak, Mr. Jackson

informed him that as far as Jackson & Jones was concerned, the pump price no longer had

any relation to the pump price at Kwik Sak.

Mr. Marshall notified Jackson & Jones in October 1992 that its refusal to price the

fuel competitively was forcing him out of busine ss. Mr. Marshall closed his station two

months later. By that time, the price of self-service gasoline at Mr. Marshall’s service station

was nine cents per gallon higher than the self-service gasoline at the nearby Kwik Sak. Mr.

Marshall’s sales of fuel had dwindled to less than one-half of their 1990 levels, and he had

lost a significant amount of his repair business. As he put it, “The price [of gasoline] got so

high that I wouldn’t do no business and basically Jackson & Jones priced me out of business

and I had to close up the books.” 

Mr. Marshall sued Jackson & Jones in the Circuit Court for Rutherford County,

alleging that the unilate ral dictation of the retail price of self-service gasoline breached the

consignment supply agreement and had forced him out of business. Jackson & Jones denied

that it had breached the agreement and counterclaimed for $5,637.60 plus late charges and

interest for the fuel they claimed M r. Marsha ll had neve r paid for. Following a bench trial,

the trial court (1) determined that the consignment supply agreement permitted Jackson &

Jones to set the price of the fuel sold at Mr. Marsha ll’s station based solely on the wholesa le

cost of fuel, the transportation costs, and state and federal taxes and (2) dismissed the

provision linking the pump price of the fue l to a one-cent spot ove r unbranded marketers in

the area as “poorly drafted.” Accordingly, the trial court determined that Jackson & Jones

had not breached the agreement. The trial court also dismissed Jackson & Jones’s

counte rclaim for failure of proof. Both parties have appealed. 

II.

MR. MARSHALL’S BREACH OF CONTRACT CLAIM
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Mr. Marshall asserts that the trial court misconstrued paragraph eight of the

consignment supply agreement. Specifically, he argues that the trial court erred by

dismissing as “unreasonable” the provision in the agreement linking the retail pump price of

fuel sold at Mr. Marshall’s service station with the retail price of fuel at other nearby

unbranded marketers. We agree that the trial court erred by failing to give effect to this

provision.

A.

The purpose of interpreting a written contract is to ascertain and to give effect to the

contracting parties’ intentions. See Bob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth,

Inc., 521 S.W.2d 578, 580 (Tenn. 1975); Gredig v. Tennessee Farmers Mut. Ins. Co., 891

S.W.2d 909, 912 (Tenn. Ct. App. 1994). In the case of written contracts, these intentions are

reflected in the contra ct itself. Thus, the search for the contracting parties’ intent should

focus on (1) the four corners of the contract, see Whitehaven Community Baptist Church v.

Holloway, 973 S.W.2d 592, 596 (Tenn. 1998); Hall v. Jeffers, 767 S.W.2d 654, 657-58

(Tenn. Ct. App. 1988), (2) the c ircumstances in which the contract was made. See Penske

Truck Leasing Co. v. Huddleston, 795 S.W.2d 669, 671 (Tenn. 1990); Pinson & Assocs. Ins.

Agency, Inc. v. Kreal, 800 S.W.2d 486, 487 (Tenn. Ct. App. 1990), and (3) the parties’

actions in carrying out the contract. See Hamblen County v. City of Morristown, 656

S.W.2d 331, 335 (Tenn. 1983); Ballard v. North Am. Life & Cas. Co., 667 S.W.2d 79, 84

(Tenn. Ct. App. 1983).

In the absence of fraud or mistake, courts should construe contracts as written. See

Frank Rudy Heirs Assocs. v. Sholodge, Inc., 967 S.W.2d 810, 814 (Tenn. Ct. App. 1997);

Whaley v. Underwood, 922 S.W.2d 110, 112 (Tenn. Ct. App. 1995). The courts should

accord contrac tual terms their na tural and ordinary meaning, see Evco Corp. v. Ross, 528

S.W.2d 20, 23 (Tenn. 1975), and should construe them in the context of the entire contract.

See Wilson v. Moore, 929 S.W.2d 367, 373 (Tenn. Ct. App. 1996); Rainey v. Stansell, 836

S.W.2d 117, 119 (Tenn. Ct. App. 1992). The courts should also avoid strained constructions

that create ambiguities where none exist. See Hillsboro Plaza Enters. v. Moon, 860 S.W.2d

45, 47-48 (Tenn. Ct. App. 1993).

The courts may not make a new contract for parties who have spoken for themselves,

see Petty v. Sloan, 197 Tenn. 630, 640, 277 S.W.2d 355, 359 (1955), and may not relieve

parties of the contractual obligations simply because these obligations later prove to be

burdensome or unwise. See Atkins v. Kirkpatrick, 823 S.W.2d 547, 553 (Tenn. Ct. App.

1991). Thus, when called upon to interpret a contract, the courts may not favor either party.
5

See nn. 1 - 3.

6The calculation for determining Mr. Marshall’s share of the “gross margin” was included

in paragraph eight of the agreement. The “transfer cost” was to be determined by Jackson & Jones,

but was based on the wholesale cost of the fuel which was established by Jackson & Jones’s

supplier, the transportation cost which was established by Jackson & Jones, and the state and federal

taxes which were established by law.

7This case calls to mind an observation by an English court, anthologized by Professor

Williston in his treatise: “It is a poplar belief, especially prevalent amongst lawyers, that the efficient

business man requires that obligations incurred in business should be expressed in writing in simple,

intelligible and unambiguous language. It is a belief encouraged by the sayings of business men

themselves. But in practice nothing appears to be further from the truth. Business men habitually

adventure large sums of money on contracts which, for the purpose of defining legal obligations, are

a mere jumble of words. They trust to luck or the good faith of the opposite party, with the

(continued...)

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See Heyer-Jordan & Assocs., Inc v. Jordan, 801 S.W.2d 814, 821 (Tenn. Ct. App. 1990).

Howeve r, when a contract contains ambiguous provisions, those provisions will be construed

against the party responsible for drafting them. See Hanover Ins. Co. v. Haney, 221 Tenn.

148, 153-54, 425 S.W.2d 590, 592-93 (1968); Burks v. Belz-Wilson Properties, 958 S.W.2d

773, 777 (Tenn. Ct. App. 1997). 

B.

Paragraph eight of the agreement contains the financial terms of the parties’

contractual relationship. It contains three formulae5 for determining how the proceeds from

the sale of the gasoline should be distributed to Mr. Marshall and Jackson & Jones. All the

variables in these formulae, except for the “retail pump price” of the gasoline, were

established either in the agreement itself or by other objective, verifiable standards.6

 The

retail pump price is the only variable in these formulae that the agreement requires to be set

by the parties “by mutual agreement and to be “based on . . . giving a one cent spot to any

unbranded marketers in the area.” 

 As the trial court construed the agreement, the re tail pump price was essentially

dictated by the price Jackson & Jones’s supplier was charging for the fuel. The contract,

however, does not say that. As evidenced by the language about the one cent spot over area

unbranded marketers, the contract makes pump pricing of fuel for any given reporting week

compe titively driven, not simply driven just by wha t we normally think of a s wholesa le cost.

Mr. Jackson te stified that Mr. Marsha ll had to pay Jackson & Jones "based on his cost

as computed by the cost to the station plus whatever [Mr. Marshall’s mark-up] might have

been . . .." While that may be how Mr. Jackson desired the arrangement to work, the contract

does not say that. 7 Paragraph seven of the agreement merely required Mr. Marshall to pay
7

(...continued)

comfortable assurance that any adverse result of litigation may be attributed to the hairsplitting of

lawyers and the uncertainty of the law.” 4 Samuel Williston, Treatise on the Law of Contracts §

600A (Walter H. Jaeger ed., 3d ed. 1961).

8Mr. Marshall testified that he anticipated that the service and repair business was where the

real money would be made.

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Jackson & Jones a "remittance price" on each gallon of gasoline sold. As defined in the

contract, the remittance price was nothing more than Jackson & Jones’s half of the gross

margin, which could have been any figure. Contrary to Mr. Jackson’s assertion, nowhere

does the agreement require Mr. Marsha ll to pay Jackson & Jones some wholesale cost figure

for the gasoline . Under the agreement, Mr. Marshall did not buy the fue l wholesale and then

resell it retail, and the trial court erred in basing its construction of the contract on that

notion.

Mr. Marsha ll was knowledgeable about selling gasoline at retail. When he entered

into the agreement with Jackson & Jones, he wanted to be able to price his gasoline

compe titively to attract customers who would also pay him to service and repair their

vehicles.8

 Mr. Jackson responded to Mr. Marshall’s desire for competitive pricing by

proposing a way to price self-service gasoline that would make it competitive within one cent

per gallon with gasoline for sale at a nearby self-service convenience store. Mr. Jackson’s

competitive pricing proposal was ultimately incorporated into paragraph eight of the

consignment agreement drafted by Jackson & Jones and accepted by Mr. Marshall. When

we review the entire record in context, including the parties’ original course of dealings and

Mr. Marsha ll’s later protests, we agree with Mr. Marshall that the mutual agreement on

pricing was intended to be pegged on maintaining a closely competitive price, ideally a one

cent spot, over his nearby unbranded competition. 

In our view, the trial court gave too little weight to the competitive pricing provision

in paragraph eight. In view of the plain meaning of the language of that provision, as well

as the history of how it was included in the agreement and the parties’ course of dealing after

the agreement was signed, we agree with Mr. Marshall that Jackson & Jones breached the

consignment agreement when it began unilaterally imposing an uncompetitive and ultimately

destructive pricing structure on Mr. Marshall after August 1990.

III.

JACKSON & JONES’S COUNTERCLAIM FOR UNPAID FUEL
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Jackson & Jones contends that the trial court erred in dismissing as unproven its

counterclaim for fuel delive red to Mr. Marshall’s service station that had not been paid for.

Jackson & Jones’s evidence to support this counterclaim consisted of a delivery invoice

devoid of any dollar figure and the testimony of its president that Mr. Marshall owed “to my

knowledge . . . around $10,456.” When prompted by his lawyer to be more specific

concerning the elements of the $10,456 figure, the president stated that some unspecified

amounts were for a “service charge” and a “carrying charge.” Jackson & Jones presented no

evidence showing specific amounts of fuel delivered to Mr. Marshall’s service station on any

particular date and never provided a means for eithe r the trial court or this court to

understand the difference between the $5 ,637.60 alleged its counterclaim and the “around

$10,456 testified to by its president.

It is elemental that a pa rty asserting a lawsuit claim must establish the claim by

satisfactory proof convincing to the fact-finder. See Hamilton v. Zimmerman, 37 Tenn. (5

Sneed) 39, 44 (1857). To carry the burden of proof, a party may employ either direct

evidence from witnesses with personal knowledge or circumstantial evidence from persons

who know and can testify to related facts that reasonably tend to establish the desired facts.

See Marquet v. Ae tna Life Ins. Co., 128 Tenn. 213, 225, 159 S.W. 733, 736 (1913). As

Jackson & Jones Oil points out, while courts ordinarily will accept a witness' unimpeached,

uncontradicted testimony as true, see Frank v. Wright, 140 Tenn. 535, 541, 205 S.W. 434,

435 (1918), that testimony must still induce some certainty in the fact-finder’s mind. See

Standard Oil Co. v. Roach, 19 Tenn. App. 661, 666, 94 S.W.2d 63, 66 (1935).

The vague and conclusory testimony of Jackson & Jones’s president, procured only

by leading direct examination and wholly uncorroborated with any business records, failed

to induce conviction in the trial court’s mind as to what amount, if any, Mr. Marshall might

have owed Jackson & Jones for fue l. Having reviewed the record, we agree with the trial

court that Jackson & Jones failed to prove their counterclaim by a convincing preponderance

of the evidence.

IV.

We reverse the dismissal of Mr. Marshall's complaint and affirm the dismissal of

Jackson & Jones counterclaim. We remand this case to the trial court to determine Mr.

Marshall's damages for Jackson & Jones’s breach of the consignment supply agreement and
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for whatever other proceedings may be required. We tax the costs of this appeal to Jackson

& Jones Oils, Inc. for which execution, if necessary, may issue.

____________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_________________________________

HENRY F. TODD,

PRESIDING JUDGE, M.S.

_________________________________

BEN H. CANTRELL, JUDGE