Thomas W. Bell v. Exxon Company, U. S. A., a Division of Exxon Corporation, a Corporation and Humble Oil & Refining Company, a Corporation

concurring in part and dissenting in part:

I dissent from that portion of the court’s opinion which reverses the trial court’s grant of summary judgment on appellant’s fourth claim. Even assuming the Exxon sales representative had authority to bind Exxon, evidence of his allegedly fraudulent statements is inadmissible under the California parol evidence rule, Cal.Civil Proc. Code § 1856 (West 1955), since those statements directly contradicted the terms of the written contract.

The opinion of the court correctly states that oral statements may be admitted to show fraudulent inducement to enter into a contract even when the contract recites that it is fully integrated. To be admissible, however, the parol evidence offered must “tend to establish some independent fact or representation, some fraud in the procurement of the instrument, or some breach of confidence concerning its use, and not a promise directly at variance with the promise in the writing.” 34 Cal.Jur.3d Fraud and Deceit § 80, at 730 (1977). An oral promise which antedates a written contract is not admissible to prove fraud if it is “in direct contravention of the unconditional promise” contained in the parties’…

Appellant’s first three claims pertain to his primary contention that appellee deprived him of sufficient gasoline supplies unfairly and in derogation of appellant’s contractual rights. The district court granted summary judgment on the ground that appellee’s failure to deliver on its contractual commitments was excused by virtue of the voluntary allocation program, promulgated under the Economic Stabilization Act of 1970, as amended, 12 U.S.C. § 1904 , note (Supp.1977) and the Emergency Petroleum Allocation Act of 1973, as amended, 15 U.S.C. § 751 , et seq. (1976). Clearly, the power of federal courts to enforce private contractual agreements is subject to the limitations of public policy expressed in federal statutes. Hurd v. Hodge, 334 U.S. 24 , 68 S.Ct. 847 , 92 L.Ed. 1187 (1948). Appellant argues that there is a factual dispute as to the fairness of the particular allocation scheme developed by appellee. However, appellant has failed to sustain his burden of submitting affidavits containing facts (not mere allegations) sufficient to rebut appellee’s prima facie showing that its allocation program conformed to applicable federal guidelines and regulations. See First National…

575 F.2d 714 Thomas W. BELL, Plaintiff-Appellant, v. EXXON COMPANY, U. S. A., a division of Exxon Corporation, a corporation and Humble Oil & Refining Company, a corporation, Defendants-Appellees. No. 75-2513. United States Court of Appeals, Ninth Circuit. May 5, 1978. As Amended May 23, 1978. Stephen T. Mugglebee, National City, Cal., for plaintiff-appellant. Jack D. Fudge, of McCutchen, Black, Verleger & Shea, Los Angeles, Cal., for defendants-appellees. Appeal from the United States District Court for the Central District of California. Before BROWNING, GOODWIN and KENNEDY, Circuit Judges. PER CURIAM: 1 Appellant's first three claims pertain to his primary contention that appellee deprived him of sufficient gasoline supplies unfairly and in derogation of appellant's contractual rights. The district court granted summary judgment on the ground that appellee's failure to deliver on its contractual commitments was excused by virtue of the voluntary allocation program, promulgated under the Economic Stabilization Act of 1970, as amended, 12 U.S.C. § 1904 , note (Supp.1977) and the Emergency Petroleum Allocation Act of 1973, as amended, 15 U.S.C. § 751 , et seq.…