American Brewing Ass'n v. Woods

• Decision Date: 05 November 1919
• Docket Number: (No. 97-2923.)
• Parties: AMERICAN BREWING ASS'N v. WOODS.
• Court: Texas Supreme Court

Page 448

215 S.W. 448

AMERICAN BREWING ASS'N v. WOODS.

(No. 97-2923.)

Commission of Appeals of Texas, Section B.

November 5, 1919.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Action by W. C. Woods against the American Brewing Association. A judgment for defendant was reversed, and the cause remanded by the Court of Civil Appeals (183 S. W. 127), and defendant brings error. Judgment of Court of Civil Appeals reversed, and that of trial court affirmed.

T. J. Adams, of Amarillo, and Fisher, Campbell & Amerman, of Houston, for plaintiff in error.

Holland & Holland, of Orange, for defendant in error.

MONTGOMERY, P. J.

This suit was instituted by W. C. Woods to recover damages on account of breach of a verbal contract entered into by the parties about March 28, 1908. The trial court gave the jury a peremptory charge to find for the defendant. Upon appeal, the judgment was reversed, and the cause remanded for a new trial. 183 S. W. 127.

The trial court held that the contract as alleged and proved was illegal, and within the inhibition of article 7798 of the Revised Statutes. The Court of Civil Appeals held that the contract as alleged and proved did not violate the provisions of the statute above referred to. In this case we think it sufficient, in order to determine the question involved, without reference to the pleading, to set out the testimony of the plaintiff, W. C. Woods, as to the terms of the agreement. We will here reproduce that part of his testimony relating to the agreement:

"I am acquainted with the American Brewing Association. About January 1, 1911, they were engaged in the business of making and brewing beer at Houston, Tex. They were at that time doing business at Orange through an agent, and were selling beer that they had manufactured. I was their agent here at one time, and Capt. Boland was their agent before me. This company has been doing business in Orange in that way for about 12 or 14 years. Their manner of doing business was: They would bill the shipment to the agent, and the agent would sell it to the saloons, and that is the way they sold it through Capt. Boland. There was a certain price that they sold it to Capt. Boland for, and then he would sell it for more than that. * * * The American Brewing Association did not sell through any other agency here. As to whether or not at that time I knew Capt. Boland was indebted to them, I will say he was indebted to them about $2,400. I made an agreement with reference to the agency and the payment of this indebtedness. I agreed that, if they would turn the agency over to me, I would pay them the $2,400 that Boland owed them. They were to give me the entire agency that Capt. Boland had. He had the agency of American Brewing Association. * * * I was to get the beer, and sell it to the saloon men, and then collect for it. The agreement was to last as long as they had an agency here, and I was to pay them the $2,400 that Boland owed them, and I did pay them that amount. They shipped me beer according to that agreement for five or six years, I guess, on this same agreement. * * * I was selling the Schlitz bottle beer at that time to the saloons at Orange. I had been selling Schlitz beer about nine years before I made the agreement with the American Brewing Association. I had been selling beer at that time about eight years, and was engaged in that business at the time I made the agreement with the Association. * * * I already had the Magnolia agency, and I did not know that Capt. Boland owed them that amount, and they said, if I would pay the $2,400 that he owed them, I could take the agency. They made me the proposition that, if I would assume the payment of Capt. Boland's indebtedness of $2,400, they would give me the agency for their beer. It was the understanding that, instead of shipping the beer to Capt. Boland, they would thereafter ship it to me. It was the understanding that I would send in my orders for such beer that I desired. If I wanted keg beer, I would send in my order for so much keg beer; and if I wanted bottle beer, I would send in my order for so much, and they would not send any except what I ordered, and when they would send that they would bill it direct to me. The agreement as to how I would pay for that beer was that they would give me a car's credit on the start, and I was to pay for the beer as the cars were sent after that. Following that, the understanding was that they were to draw a draft against me with bill of lading attached for each shipment of beer, and I was not to get that beer until I paid for it, until I paid that draft. Then, when I paid that draft, of course, the beer became mine, and I sold it. I got out in town and sold my own beer, and I sold it to whoever I pleased, for cash or credit, and how I pleased. That was the understanding. The agreement that was entered into between me and the American Brewing Association was, as alleged in this pleading here, that if I would accept the agency for the American Brewing Company's products in Orange county in such manner as to represent the interests of the defendant company, said agent purchasing direct the products of the defendant from the defendant company, and making sales thereof myself to the dealers, in Orange county, and said products to be invoiced to me by the defendant company at a price then and there agreed upon, and to be sold by me to the dealers thereof at a profit, and would pay to the defendant company for such business and agency said amount owing to it by its former agent, Mr. Boland, and amounting approximately to the sum of $2,400, the defendant company would exclusively contract with me for the conduct by me of their business in Orange, Tex., and appoint me its exclusive agent at said place, and would continue permanently to sell me, and no other person, except through me, goods of its manufacture or its products, thereby entitling me to the profits arising from the sale of said products, so long as the defendant conducted its business in Orange, Tex., or held or kept an agent at said place, all of which was consented to and agreed upon by the plaintiff, and said contract between the parties became mutual and binding. * * * It was agreed that I should pay them $7 per barrel for the beer, and, after I paid them for it, it became my property, and I sold it to whoever I pleased, on any terms I pleased. After I got back from Houston, after I made the deal with them, I did not make any arrangements of any kind with Capt. Boland for taking over his business. I had taken the car that was sent to him, and sold it to his customers. * * * The Association did not pay me any salary. The only profit I got out of the transaction was the difference between what I paid for the beer and what I sold it for. If I sold a bad account, that came out of my profit; and if I lost on the collections, I had to stand the loss. In my agreement to pay the $2,400 of Boland's account, I was induced to pay that or assume that amount by them agreeing to give me the exclusive purchase of their beer, and I could not have been induced to pay that indebtedness without them giving me the exclusive sale of their beer. I don't know exactly how long they had been selling beer to one person in Orange, but it was about ten or twelve years, or something like that. It was the understanding between us that this contract that we have been discussing would extend over several years' time. I...