Dr. Koch Vegetable Tea Co. v. Malone

• Citation: 163 S.W. 662
• Parties: DR. KOCH VEGETABLE TEA CO. v. MALONE et al.
• Decision Date: 07 February 1914
• Court: Court of Appeals of Texas

163 S.W. 662

DR. KOCH VEGETABLE TEA CO. v. MALONE et al.

Court of Civil Appeals of Texas. Dallas.

February 7, 1914.

Appeal from Wood County Court; R. E. Bozeman, Judge.

Action by the Dr. Koch Vegetable Tea Company against W. B. Malone and others. From a judgment dismissing the suit, plaintiff appeals. Reversed and remanded.

Howell & Nabors, of Winnsboro, for appellant. D. M. Maynor, of Quitman, and M. D. Carlock, of Winnsboro, for appellees.

TALBOT, J.

The statement of the nature and result of the suit made by appellant is accepted by appellees as correct, and is as follows: "The appellant, Dr. Koch Vegetable Tea Company, instituted this suit in the county court of Wood county, Tex., as plaintiff, against the appellees, W. B. Malone, Sam Paschal, and S. S. Moore, as defendants, to recover the sum of $410.72, with interest and costs of suit, alleged to be due appellant by appellee W. B. Malone, as principal, by virtue of the sale and delivery to him of certain goods, wares, and merchandise, under the terms of their contract set up in its petition, upon which contract the other appellees were alleged to be guarantors for the payment of said indebtedness. Appellee W. B. Malone, though present as a witness, made default in the suit, and the appellees Moore and Paschal answered by general demurrer, general denial, specially pleading in abatement that appellant is a foreign corporation without a permit to do business in this state; that the contract was in restraint of trade under our anti-trust law, in that it gave exclusive territory; that the contract had been materially changed without the consent of the guarantors; and that the indebtedness had been paid. Upon a trial of the case by the court without a jury a judgment was entered dismissing appellant's suit, with costs in favor of appellees. Appellant in due time filed its motion for a new trial, which was by the court overruled. Thereupon appellant perfected its appeal to this court.

The first assignment of error is, in substance, that, it appearing from the evidence that appellant shipped the merchandise and articles of commerce for which appellees are indebted to appellant under and by virtue of a specific contract of sale and delivery thereof in the state of Minnesota, for shipment into the state of Texas to the principal, W. B. Malone, as shown by said contract in writing as introduced in evidence, the same constituted interstate commerce, and the court, therefore, erred in finding that a permit for appellant to do business in Texas was essential to its right to maintain this suit, and in rendering judgment against it. The material, and practically undisputed, facts shown by the evidence are that appellant and appellee W. B. Malone executed a contract in writing, providing in terms for the sale and delivery by appellant to said appellee f. o. b. at Winona, Minn., in such reasonable quantities as the appellee should desire from time to time, certain medicines, flavorings, spices and other articles manufactured or sold by it, said contract setting forth the price per dozen of a long list of articles, specifying the sizes of the bottle, as $1 size and 50 cent size. The contract then provides for resale of the goods in Franklin county, Tex., or in such territory as both parties may agree on. The contract was to terminate March 1, 1911. W. B. Malone was to keep records of the business and make reports to appellant. With each report of sales sent in, payment in cash was to be made of one-half "of the cash received," not exceeding the amount then due for goods previously purchased. If the contract was not renewed, the goods on hand at its expiration were to be shipped back prepaid under certain conditions, and W. B. Malone allowed a credit at the invoice price to him on any indebtedness or any account he might owe or have with appellant. It also provides that upon the termination of the contract all indebtedness shall be paid. It specifies for 60 days' notice by either party to terminate the contract before March 1, 1911. It then acknowledges an indebtedness of $353.35 due appellant, being a balance due on a previous agreement, similar in its terms to the said contract, which was to terminate March 1, 1911, for goods sold to him. The appellees S. S. Moore and Sam Paschal executed a guaranty of payment, jointly and severally, of all amounts due or to become due under said contract.

Carl Gerlacher, witness for appellant, testified that he was secretary and treasurer of appellant company, and had charge of making contracts such as this. He says the above contract was received by mail by him, and on behalf of appellant, was accepted, executed, and notice given by registered letter thereof to appellees. The previous agreement referred to in the above contract under which the $353.35 indebtedness accrued was a contract between the appellant and appellee Malone, with substantially the same provisions, made the year before, and of which the above and subsequent contract was a renewal; it...