Imágenes de páginas
PDF
EPUB

(248 S.W.)

agent. 2 C. J. 525, §§ 26, 27; 1 Mechem (2d was to engage in no other business in violation Ed.) §§ 799, 742; 9 C. J. 510, § 7; Swift v. of Rev. St. arts. 7796, 7798, 7799, and 7807, reErwin, 104 Ark, 459, 148 S. W. 267, Ann. Cas.lating to trusts and conspiracies in restraint of 1914C, 363: Halsey v. Monteiro, 92 Va. 581, 24 S. E. 258.

The jury's finding that Brasher owned an interest in this particular lease is unsupported by a scintilla of testimony, and the further finding that he was authorized by Priddy to place the land with appellee for sale at $5,000 per acre has no foundation in the record aside from his own declarations and acts. The latter finding, being unsupported by the facts, is therefore an erroneous conclusion of law, necessarily based upon the legal effect of the price list as an offer to sell. In so finding the jury assumed the prerogative of the court. In my opinion the propositions insisting that the evidence is insufficient to sustain a judgment for the plaintiff should be sustained as to Priddy.

For the reasons stated, I respectfully dis

sent.

trade, the voluntary mingling of legal and unlawful transactions rendered the contract subject to the laws of the state, independent of congressional action.

Appeal from District Court, Hamilton County; J. R. McClellan, Judge.

Action by the W. T. Rawleigh Company against J. F. Marshall and others. From judgment for defendants in a second trial after a former judgment for defendants was reversed and remanded, plaintiff appeals. Affirmed.

H. E. Chesley, of Hamilton, for appellant.
A. R. Eidson, of Hamilton, for appellees.

BRADY, J. [1] This is the second appeal of this case; our opinion upon the first appeal being reported in 220 S. W. p. 1111. The judgment of the trial court was reversed and the cause remanded for a new trial, because the court's conclusions of law, upon which it rendered judgment for the appellees, were

W. T. RAWLEIGH CO. v. MARSHALL et al. not sustained by its findings of fact. We

(No. 6473.)

(Court of Civil Appeals of Texas.
Dec. 4, 1922.)
1. Monopolies 21-Evidence held sufficient
to support findings of restrictions of business
of buyer by manufacturer of goods.

held, specifically, that the fact that appellee Marshall pursued the same business methods Austin. in the sale of goods purchased from appellant that he pursued under the former illegal contracts, and that he was under the impression that he was required to do so by appellant, could not affect appellant; such construction of the new contracts being erroneous, and it not appearing that appellant induced Marshall to place such construction upon the contracts, or that it had any knowledge that he had done so.

In an action by a manufacturer against the buyer of his products to recover a balance due, evidence held sufficient to support findings by a jury on special issues that the buyer agreed to continue to sell the manufacturer's goods in a specified territory and in no other territory, according to a prior contract, and that there was an agreement between the parties that the buyer should carry on no other business.

On the last trial the cause was submitted

to a jury for special findings. The jury found that there was an agreement between the appellant and appellee Marshall that the latter 2. Monopolies 17 (2)-Contract between manufacturer and buyer of goods held monop-in a certain prescribed territory, and in no was to continue to sell appellant's products

olistic.

Under Rev. St. arts. 7796, 7798, defining trusts and conspiracies against trade, article 7799, declaring trusts, monopolies, and conspiracies in restraint of trade illegal, and article 7807, providing that contracts or agreements in violation of the foregoing and other similar statutes shall be void and unenforceable. a contract between a manufacturer and a buyer of goods that the buyer should sell them in a specified territory, and pursue no other business, was illegal as contrary to the statutes and public policy.

3. Commerce 40(1)-Voluntary mingling of legal and unlawful transactions held to render commerce, interstate in part, subject to state law.

Where a manufacturer in another state sold goods to a buyer within the state, and contracted that the goods were to be sold by the buyer in specified territory, and that the buyer

other territory, under the contract sued on, as he had done under the contract of 1912. which was the first contract between the parties. The jury made the further finding that there was an agreement and contract between the parties that Marshall was to have no other business but that of selling Rawleigh products, and that the agreement entered into in 1912 continued during the years 1913, 1915, and 1916, until the termination of the contract, by the acquiescence and performance of both parties.

Although the evidence was conflicting, we have concluded that it was sufficient to support the finding upon each of these issues, as will be briefly indicated hereafter. The vice in the contract of 1912, which was admittedly illegal, was that appellant had awarded to appellee Marshall certain ex

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

clusive territory in Hamilton county, Tex., | There is also in the record a number of letin the sale of its products, and that the agree- ters written by appellant during the years ment restricted him to the designated terri- 1915 and 1916, relating to a renewal of the tory in the conduct of his business. The yearly contracts, which specifically recognize written agreement and contract further re- the existence of the original designation of quired Marshall to have no other business territory, urging Marshall to renew his conbut that of selling the products of appellant. tract in order to retain his territory, and As we have pointed out above, the jury found suggesting that the company would doubtless adversely to appellant, to the effect that these receive many applications for that territory, restrictions were continued by agreement of and urging Marshall to give more time to the parties under the later contracts, which the business, "to make good or to get out were the basis of the sales in controversy. and stay out." In the letter of January 31, Under these findings, if supported by evi- 1916, we find this language: dence, it is clear that our statutes against trusts and conspiracies against trade, found in articles 7796, 7798, Revised Statutes, have been violated, and that such acts and contracts are expressly declared illegal by article 7799, and by article 7807 they are made absolutely void and not enforceable, either in law or in equity.

"You cannot expect us to reserve for you a valuable territory, sell you products on credit, if you loaf around home about two-thirds of your time the first six months of the year, then get out and work a little in the last six months, when collections are good and money is the most plentiful."

There are other letters along the same line, which amply justify the inference that appellant was continuing to recognize Marshall's right to enjoy and to restrict him to the territory originally allotted, and expected him to engage in no other business, while under contract with it. Indeed the tenor of these letters not only indicates the understanding and purpose of the company to continue to impose these restrictions upon Marshall and to bind itself not to award the designated territory to any one else, but the inference is fair that appellant had pursued the plan of parceling out the whole state of Texas, or a great portion thereof, into exclusive territories to be awarded to dealers with whom it could make satisfactory contracts. These facts do not appear from the face of the later contracts, but the evidence

[2] It is contended by appellant's counsel that the evidence on the second trial was no stronger than on the first, that the new contracts were in form legal and free from the vices of the original contract, and that the whole defense, under the evidence, rests upon the erroneous impressions of appellee Marshall, with respect to exclusive territory and with respect to his right to engage in any other business. It is argued that Marshall himself testified that he thought the new contracts were the same as the old, and that he did not think the former were modified or changed; nor was he informed by any one that there had been any modification or change in the contracts; and that there is no evidence in the record showing that Marshall was prohibited from selling his goods anywhere he pleased, or from engag-shows that the same methods were pursued. ing in any other business. We have carefully. considered the evidence, and are of the opinion that it is sufficient to support the conclusion that it was the understanding of both appellant and appellee Marshall throughout their course of dealing, notwithstanding the form of the contracts, that Marshall should not sell the products of appellant except in the restricted territory reserved for and allotted to him by appellant, which was never changed, and that he was to have no other business or occupation than that of selling appellant's products. The settlement report introduced in evidence and prepared by the traveling auditor of appellant, and dated December 28, 1916, shortly after the close of their business dealings, expressly designates a part of Hamilton county, Tex., as the territory of appellee Marshall, and in immediate relation to the summary of his monthly balances during the years 1914, 1915, and 1916. This report was compiled and indors ed by the traveling auditor, who was the same person who originally specified the exclusive territory under the contract of 1912.

Such transactions are in the teeth of the public policy of this state, and in plain violation of our statutes. It must be remembered that this is not a case of agency. Appellant has not elected, as it might legally have done, to transact business in this state through agents confined to designated territory, and giving their exclusive time to the company's business, but the system of business pursued is with dealers, who buy the products outright and have title to the goods. Cases illustrative of the holdings of our courts upon similar transactions are: Rawleigh Co. v. Smith (Tex. Civ. App.) 231 S. W. 799; Caddell v. Watkins Medicine Co. (Tex. Civ. App.) 227 S. W. 227; Newby v. Rawleigh Co. (Tex. Civ. App.) 194 S. W. 1173; Whisenant v. Shores Mueller Co. (Tex. Civ. App.) 194 S. W. 1175; Armstrong v. Rawleigh Medicine Co. (Tex. Civ. App.) 178 S. W. 582; Watkins Medical Co. v. Johnson (Tex. Civ. App.) 162 S. W. 394; and Texas Brewing Co. v. Templeman, 90 Tex. 277, 38 S. W. 27.

The views stated lead to the conclusion that the findings of the jury find support in

(248 S.W.)

the evidence, and that judgment was proper- chattel mortgage was to be executed and rely entered denying appellant a recovery. We corded to protect the indorser, but that the have examined all the assignments, and find notes were executed and old ones canceled at defendant's instance in consideration of an exthat no reversible error was committed; tension of time to afford the maker an opportherefore the judgment will be affirmed. tunity to pay the debt.

[3] On the first appeal, the writer indicated that the case probably fell within the rule announced in Albertype Co. v. Feist, 102 Tex. 219, 114 S. W. 791. Upon further consideration of this point, we are of the opinion that the case is ruled by Fuqua v. Pabst Brewing Co., 90 Tex. 298, 38 S. W. 29, 750, 35 L. R. A. 241. While the transactions were in part interstate commerce and not subject to state regulation without the consent of Congress, the parties by agreement voluntarily went further, and dealt with the subject after it had ceased to be an article of interstate commerce, so as to impose and to continue to impose illegal restrictions upon the pursuit of business wholly within the state. The case last cited, holds that such voluntary intermingling of legal and unlawful transactions renders the contract subject to the law of the state, independent of congressional action. We think the principle is applicable here. The same holding was made by the San Antonio Court of Civil Appeals in the case of Caddell v. Watkins Medicine Company, 227 S. W. 226. It should be added that in the Albertype Co. Case, the restrictions which were held by the Court of Civil Appeals to be illegal, under the Texas laws, did not relate to any restraint upon the business of the purchaser to be transacted within the state, but were wholly upon the Albertype Company, the vendor. This, perhaps, is a sufficient differentiation of that case from Fuqua v. Brewing Co., supra; but, in any event, we think the latter case is directly in point and controlling. Affirmed.

[blocks in formation]

Evidence of a parol agreement between the payee and indorser of notes sued on that the former had or would obtain and record a chattel mortgage securing them held inadmissible as varying and adding to a written agreement. 2. Bills and notes 518(2)—Evidence held not to show payee's agreement to secure mortgage to protect indorser.

3. Bills and notes 444-Creditor need not resort to collateral security before recovery against surety, in absence of express contract.

A creditor need not resort to collateral security or any particular security precedent to recovery on a note against the indorser unless he has expressly contracted to that effect. 4. Bills and notes 519-Evidence in action against indorser held to show that vendor's lien on maker's property had ceased to be available for security.

In an action on notes indorsed by defendant, evidence held to show that a vendor's lien on property for which the notes were given by the maker, who became bankrupt after the suit was filed, and later died leaving no estate, had without plaintiff's fault ceased to be available for security; the property not being listed in the bankruptcy schedules or accounted for in the record.

Appeal from Dallas County Court; T. A. Work, Judge.

Action by the Polk-Genung-Polk Company against George S. McGhee. Judgment for defendant, and plaintiff appeals. Reversed and rendered.

Burgess, Burgess, Sadler, Christman & Brundidge, of Dallas, for appellant. Davis, Johnson & Handley, of Dallas, for appellee.

HAMILTON, J. Appellant sued appellee for the recovery of judgment upon a series of seven promissory notes which were signed by Geo. P. Turner and indorsed by appellee.

The defense pleaded by appellee was in substance that appellant, in the year 1916, sold and delivered to Geo. P. Turner certain silos and similar wares, for a portion of the purchase price of which appellant demanded and received from Turner certain notes; that these notes were renewed by the execution of the note sued upon; that at the time each set of notes was executed Turner furnished appellant other security for them; that at the time appellee indorsed both the original notes and the renewal notes it was understood that appellant either had or would obtain a mortgage on the wares in part payment for which the notes had been executed, and that appellant either had filed, or would file, such mortgage for record in the county where the property was located. It was alleged that these representations and promises induced appellee to sign all of the original and renewal notes.

It was further alleged that, subsequent to the above-described understanding, Turner In an action on notes indorsed by de- became a bankrupt, and his estate was adfendant, evidence held to show, not that a ministered for the benefit of his creditors in

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

consent.

[ocr errors]
[ocr errors]

property above described shall be transferred
by indorsement of this note to any person or
corporation to whom this note may be as-
signed.
[Signed] Geo. P. Turner."

The contractual terms of all the notes were identical.

bankruptcy, and that in the course of the administration of the estate in bankruptcy ap pellee discovered that no mortgage had been taken by appellant covering the property sold to Turner, and that none had been filed for record. It was alleged that the security had become worthless, and the property which Appellee testified that appellant sold Geo. should have been covered by a mortgage duly P. Turner certain silo forms for which the recorded had become a part of the estate in original notes indorsed by him were executbankruptcy by reason of the failure to re-ed, and that an authorized agent of appelcord the mortgage, and that through such cir-lant, through whom the sale was made and cumstances the security which would have the transaction wholly executed, was in Waexisted by virtue of the recorded mortgage co in 1916 at the time of the sale and execuhad been lost to appellee, and thus his rights tion of the notes; that both this agent and had been violated without his knowledge or Turner then agreed with appellee that a nen would be retained by appellant on the silo forms and that appellant would record the lien to protect the indorsement. He testified that about July 1, 1917, when he indorsed the renewal notes, the renewal notes were in the form of the original ones reciting that appellant retained a lien on the silo forms, and, as appellee understood it, this transaction was simply an extension and carrying out of the original agreement made in 1916 with appellant's agent. He further testified that he made no effort to procure or save the silo forms either at the time or after Turner went into bankruptcy, but notified the attorneys of appellant that he would expect them to do this, as appellant held a mortgage on the property.

The issue having been joined by this answer to appellant's petition declaring upon the notes, the evidence was adduced, and the case submitted to a jury upon special issues, and, in accordance with the findings of the jury, judgment was rendered for appellee.

The issues submitted to the jury and the respective answers thereto were as follows: "When George S. McGhee indorsed the original notes given by Turner in 1916, did he do so with the understanding with agent for plaintiff that a mortgage would be taken on forms sold to Turner, and that said mortgage would be filed for registration in McLennan county,

Tex.? Answer: Yes.

"When George S. McGhee indorsed the renewal notes given in 1917, did he do so with the understanding that mortgage had been taken on forms sold to Turner and that said mortgage had been filed for registration in McLennan county, Tex.? Answer: Yes."

The first of the notes sued upon matured October 1, 1917. The others matured at intervals of three months. Each of them was for the sum of $100, except the last, which was for $97.50. The note first maturing was as follows:

[blocks in formation]

this note.

"This note is given as the evidence of the consideration of the following described personal property, to wit: Part payment on one 16foot and one 14-foot Polk System machine with chutes No. 1041 and No. 1042, this day conditionally sold by Polk-Genung-Polk Co. to maker of this note. It is expressly agreed by the maker of this note that the title to the abovedescribed property shall be and remain in the above-mentioned sellers thereof, and that the title to said property shall not pass to, or vest in, said maker of said notes, until the said note and all accumulated interest shall have been fully paid. It is further expressly agreed by the makers of this note that the title to said

The execution of the notes sued upon followed a period of correspondence between appellant and appellee extending from early in January, 1917, to early in July, 1917, after the first series of notes had become due and Turner had failed to pay them.

Throughout this correspondence appellant was insisting upon payment by appellee, and appellee, at no time denying full and complete liability, but acknowledging his liability, was imploringly soliciting appellant to grant more time in order that Turner might be able to settle the indebtedness by making small payments from time to time. Appellee throughout the correspondence assured appellant that he was unable on account of business reverses to make payment, and that, if indulgence were accorded Turner, the latter would be able to discharge the liability completely, and would discharge it. Appellee gave assurance that he would exert influence upon Turner to have him make small payments designated by appellee, provided this arrangement should be acceded to by appellant, and he assured appellant that Turner was engaged in activities from which he was obtaining revenue sufficient to meet payments in the amounts and on the respective dates indicated in the notes sued upon. These terms, finally having been acceded to by appellant in compliance with appellee's solicitations and insistence, were precisely reflected in the notes involved in this suit.

During the course of this correspondence before the notes sued upon were executed

(248 S.W.)

original notes. He was involved and embarrassed financially on account of business reverses. He had other creditors. He feared that the institution of suit would precipitate his other creditors into an attitude of disaffection which he could not overcome. Hence he represented that the proposed arrangement would not only afford an opportunity for Turner to pay the debt without the liability ultimately falling upon appellee, but would obviate difficulties with other creditors and possible disaster to his plans of business recovery; and he expressly stated in the course of the correspondence with appellant that, if Turner failed to pay the debt under his urgings, he himself would endeavor to make settlement.

appellant inquired of appellee as to the loca- [ would result to him from a suit upon the tion of the property upon which the lien retained in the face of the notes existed. It received no reply from appellee to this inquiry. The inquiry subsequently was repeated to appellee, and in response the latter advised appellant that he was informed by Turner that Turner had the property stored with one of his friends in the country near Waco. In none of this correspondence preceding the execution of the second series of notes did appellee in any way intimate that he was relying upon any mortgage other than that expressed in the terms of the conditional sale contained in the notes, but, as above stated, recognized his unqualified liability as a surety. Only after the new notes had been executed, and after default had been made by both Turner and appellee, and steps had been taken to enforce collection against appellee, did he assert the existence of an agreement that a chattel mortgage was to have been taken and filed for record when the first series of notes was executed.

The transaction which resulted in the execution and delivery of the second series of notes, the record conclusively indicates, was entirely between appellant and appellee. After the agreement had been reached Turner merely acquiesced in it at the instance of appellee. The correspondence between the parties to this suit conclusively reflects that it alone expressed the dealings which resulted in the delivery of the second series of notes and the cancellation of the original notes, and there is no intimation to the effect that any part of the negotiations extended beyond what is expressed in the letters which the record contains as having passed between appellant and appellee.

A

[3] Even, however, if appellee should be regarded strictly as a surety, his contention that he became released from liability because appellant did not recover or foreclose upon the property, upon which a lien was retained in the notes, would be unsound. creditor is not required to resort to collateral security, or any particular security, precedent to recovery against a surety, unless he has expressly contracted to that effect. It is only when the terms of the contract indicate such to be the agreement that the surety will be held not to be liable until the security has been exhausted. The terms of the notes themselves disclosing nothing to indicate such an understanding, and, the letters through which the negotiations were had which resulted in the execution of the notes clearly negativing that any such intention ever existed with reference to this particular transaction, the defense is not available to

[4] Turner became a bankrupt after the suit was filed, and later he died. He seems to have had no estate either at the time of bankruptcy or at his death. These facts were alleged by appellant. The schedules of personal property in bankruptcy did not list the property for which the notes were given. The property is unaccounted for in the record of this case. The record as a whole indicates that the security, without any fault whatever of appellant's had ceased to be available for security, as alleged by ap

[1, 2] These letters not only contain no in-appellee. timation that a mortgage was to be executed and recorded to protect appellee, but they conclusively exclude that idea. The note itself is void of any expression to indicate any such agreement. There is no allegation of fraud, omission, or mutual mistake, and even if a parol agreement had existed, as appellee contends, we think proof of it could not have been received, because the effect of such evidence would have been to vary and add to a written agreement, and this very objection was fully urged by appellant. Besides, the effect of the uncontradicted evi- pellant. dence is to make the execution of the notes The findings of the jury are unsupported sued upon the primary undertaking of ap-by legal evidence. Liability was conclusivepellee. It was at his instance that these ly established against appellee, and the pernotes were executed and the old ones can- emptory instruction to find for appellant celed. The consideration for the execution of ought to have been given. the new notes was the extension of time affording Turner an opportunity to make payment and saving appellee the embarrassment, humiliation, and loss he estimated and stated

The judgment is reversed, and judgment is rendered for appellant for the full amount the terms of the notes stipulate. Reversed and rendered.

« AnteriorContinuar »