
    23567.
    CLARK v. SINCLAIR REFINING COMPANY.
    
      Decided May 9, 1934.
    
      Lester F. Watson, B. I. Stephens, for plaintiff in error.
    
      J. S. Adams, Burch & Daley, contra.
   Guerry, J.

The Sinclair Refining Company sued out a distress warrant against I. L. Clark, alleging that Clark was indebted to it for the rent of a filling station for the months of September, October, November, December, and until January 14, at the rate of one hundred dollars per month, which amounted to $541.94, and that he was entitled to a credit of $98.03, leaving a balance due of $443.91. The defendant was in possession under a rent contract in which he agreed to pay $100 per month for rent, and he alleged that this contract was terminated by a written agreement, entered into December 15, 1930, by the terms of which subsequent agreement he was occupying said filling station -as agent of the company, and under a verbal agreement that his commission of one cent per gallon of gasoline sold was to be held by the company and applied on rent due, which he alleges was for October, November, and until December 15, 1930, amounting to $250. The plaintiff admits in his brief that rent for September had been paid. The contract introduced in evidence was executed December 15, 1930, and there is no competent evidence showing that its operation was to be postponed until January 14, 1931, and it expressly stipulates that it supersedes prior rental agreements. The plaintiff admits that the $98.03 was commissions earned by defendant under a verbal agreement up to May 29, 1931, the time of the suing out of the distress warrant. The evidence, as shown by the record before us, limits the liability of the defendant to the rent for October, November, and until December 15, which amounts to $250, and,.according to tbe evidence, the defendant is entitled to a credit on this sum of $98.03. A verdict for $241.91 is not supported by the evidence, and the judgment is reversed on the general grounds.

Judgment reversed.

MacIntyre, J., concurs. Broyles, C. J., dissents.  