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IN THE TERRITORIAL COURT OF THE VIRGIN ISLANDS



DIVISION OF ST. CROIX



JAMES EMMANUEL HENRY,



Plaintiff, CIVIL NO. 21/1984



Ve



ESSO STANDARD OIL, S.A., LTD., ACTION FOR DAMAGES

SHAKIR GHAFFERY and FRANCIS

LAURENCIN, d/b/a § & S



SERVICENTER,



Defendants.



eee Nee Nem Sear See Ne ne Smet See See ee ee eet ee



EDDY RIVERA, ESQUIRE



#38 King Street

Christiansted, St. Croix

U.S. Virgin Islands 00820

(809) 773-5756



(Attorney for Plaintiff)



WARREN B. COLE, ESQUIRE



Isherwood, Hunter & Colianni



#46 King Street



Christiansted, St. Croix



U.S. Virgin Islands 00820



(809) 773-3535



(Attorney for Defendant - ESSO STANDARD OIL, S.A. LTD.)



ALBERT A. SHEEN, ESQUIRE



#46~47 Company Street



Christiansted, St. Croix



U.S. Virgin Islands 00820



(809) 773-3115



(Attorney for Defendants - SHAKIR GHAFFERY & FRANCIS

LAURENCIN}



PETERSEN, Judge



MEMORANDUM OPINION

February 4 7 , 2985



This action comes before this Court on Motions for



Summary Judgment on Cross-Claims by each of the co-defendants.



et cre Cn

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HENRY v. ESSO STANDARD OIL, ET. AL.

CIVIL NO. 21/1984



ACTION FOR DAMAGES



Page 2



For the reasons set forth below, the Motion for Summary

Judgment of Esso Standard Oil, S.A., LTD. will be granted

while the Motion for Summary Judgment by Cross-defendants

Shakir Ghaffery and Francis Laurencin d/b/a S & S Servicenter



will be denied.

I es



FACTS



On December 4, 1984 this Court approved a

stipulation for Entry of Consent Judgment which provided that

each co-defendant pay Two Thousand Five Hundred ($2,500.00)

Dollars to the plaintiff. Subsequently, Esso Standard Oil

S.A., LTD. (hereinafter Esso) filed a motion for summary

judgment against the cross-defendants, asserting that Esso

never was notified in writing, as required by the lease, of

any defects in the property which Esso might have been

required to correct. Therefore, cross-defendants Shakir

Ghaffery and Francis Laurencin, d/b/a S & § Servicenter

(hereinafter Ghaffery) should be required to indemnify Esso

for the Two Thousand Five Hundred ($2,500.00) Dollars that

Esso paid to Plaintiff Henry. Cross-defendant Ghaffery

subsequently filed a motion for summary judgment. He argues



that it has been the custom and practice to give oral, rather

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HENRY v. ESSO STANDARD OIL, ET. AL.

CIVIL NO. 21/1984



ACTION FOR DAMAGES



Page 3



than written notice to Esso of any defective conditions on the

premises. Esso in turn would provide the necessary repairs

without requiring written notice. Since oral notice was given

to Esso of the defective condition of the property prior to

the incident, Defendant Ghaffrey claims that Esso should

indemnify him for Two Thousand Five Hundred ($2,500.00)



Dollars .

III.



DISCUSSION



Summary judgment is to be entered in a case only if

the pleadings, together with the affidavits, show that there

is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law. Fed.



R. Civ. P. 56(c)}. See, Macedon v. Macedon, 19 V.I. 434



(1983). In determining the presence of a disputed issue of

material fact on a motion for summary judgment, “all

inferences, doubts and issues of credibility" should be



resolved against the moving party. Smith v. Pittsburgh Gage



and Supply Co., 464 F.2d 870, 874 (3d Cir. 1972). Thus,



summary judgment should be granted only in clear cases.



Suchomajcez v. Hummel Chemical Co., 524 F.2d 19, 24 (3d Cir.



1975). If the evidence presented in the motion either is

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HENRY v. ESSO STANDARD OIL, ET. AL.



CIVIL NO. 21/1984 i

ACTION FOR DAMAGES



Page 4



subject to conflicting interpretations or might induce

reasonable men to differ as to its significance, summary



judgment is improper. Bragen v. Hudson County News Co. Inc.,



278 F.2d 615, 618 (3d Cir. 1960).



In Esso's Motion for Summary Judgment, Esso asserts

that it was not notified in writing, as required by the lease

agreement, of any defects in the property which Esso might

have been required to correct. The lease agreement on page 4

paragraph 7 section(a) explicitly states that written notice

is required: ". . . when lessee shall have given Esso written

notice of the existence of a defective condition for the

repair of which Esso is responsible under this lease".

(emphasis added). Cross-defendant Ghaffery asserts that the

custom and practice of oral notification overrode the specific

provision of a contract requiring written notice.



In the interpretation of an agreement or a term,

express terms are given greater weight than the course of

performance. Restatement (Second) of Contracts, Section

203(b) (1979). Unless a different intention is manifested,

words are interpreted with its generally prevailing meaning.

Restatement (Second) of Contracts, Section 202 (3) (1979).

When the parties have adopted a writing as a final expression

of their agreement, an interpretation is directed to the



meaning of that writing in light of the circumstances. In

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HENRY v. ESSO STANDARD OIL, ET. AL.

CIVIL NO. 21/1984



ACTION FOR DAMAGES



Page 5



interpreting the words and conduct of the parties to a

contract, a court seeks to put itself in the position the

parties occupied at the time the contract was made.



In the case at bar there is no indication that

either the lease was not a final expression or that the word

"written" was not to be interpreted within the prevailing

meaning. This Court finds that at the time the contract was

made, the intention of the parties was that written notice

would be required.



Some courts have allowed commercial conduct to

supplement oor qualify express terms, and in certain



circumstances, override express terms. Corenswet, Inc. v.



Amana Refrigeration Inc., 544 F.2d 129 (5th Cir. 1979), cert



denied, 101 S. Ct. 288 (1980) citing J. White & R. Summers,



Handbook of the Law under the Uniform Commercial Code, Section



3-3 at 84 (1972). There is no justification for overriding an

express term unless the Court finds that the parties' conduct

has given rise to promissory estoppel. A conflicting course

of dealing can not control over an express contract term.



The Restatement provides that "{w]here an agreement

involves repeated occasions for performance by either party

with knowledge of the nature of the performance and

Opportunity for objection to it by the other, any course of



performance accepted or acquiesced in without objection is

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HENRY v. ESSO STANDARD OIL, ET. AL.

CIVIL NO. 21/1984



ACTION FOR DAMAGES



Page 6



given great weight in the interpretation of the agreement".

Restatement (Second) of Contracts, Section 202 (4) (1979).

While cross-defendant Ghaffery alleges that Esso acquiesced

in, without objection, to the oral notice and thus modified

the contract, there is nothing in the record to indicate how

this contention can be squared with the express contract

language which states that "[{n]o waiver by either party of any

breach of any of the covenants or conditions herein contained

to be performed by the other party shall be construed as a

waiver of any succeeding breach of the same or any other

covenant or condition." (Defendant's Exhibit A)



In light of the discussion above, this Court grants



Esso's Motion for Summary Judgment.



EILEEN R. PETERSEN



Judge