Eclipse Paint & Mfg. Co. v. New Process Roofing & Supply Co.

• Decision Date: 01 May 1909
• Citation: 120 S.W. 532
• Parties: ECLIPSE PAINT & MFG. CO. v. NEW PROCESS ROOFING & SUPPLY CO.
• Court: Texas Court of Appeals

120 S.W. 532

ECLIPSE PAINT & MFG. CO. v. NEW PROCESS ROOFING & SUPPLY CO.

Court of Civil Appeals of Texas.

May 1, 1909.

On Rehearing, June 12, 1909.

Appeal from District Court, Dallas County; T. F. Nash, Judge.

Action by W. E. Smith and another, doing business under the firm name of Eclipse Paint & Manufacturing Company, against the New Process Roofing & Supply Company. Judgment for defendant. Plaintiffs appeal. Dismissed.

Sauer & Sauer and Don Robinson, for appellants. Etheridge & McCormick, for appellee.

BOOKHOUT, J.

This suit was brought by W. E. Smith and S. D. Wyse, residents of Cleveland, Ohio, doing business at said place under the firm name of Eclipse Paint & Manufacturing Company, as plaintiffs, against New Process Roofing & Supply Company, a Texas corporation, as defendants, upon a sworn account. Upon the trial the court rendered judgment for the defendants. Plaintiffs' motion for new trial having been overruled, they perfected an appeal.

The appellants, manufacturers of a certain kind of paint, at Cleveland, Ohio, sold and delivered to defendants a bill of paints so manufactured by them, consisting of a certain number of barrels, half barrels, and gallon cans at a specified price per gallon, altogether aggregating $1,957.05, upon which account there was a credit of $10, leaving due appellants $1,947.05, to recover which this suit was instituted. The defendants denied liability, and specially answered that the sale of said goods was made in violation of, and in contravention of, the law known as the "Anti-Trust Law of Texas," and therefore collection for the same could not be enforced under the statute. It was alleged that the goods were sold under and by virtue and in pursuance of a certain contract in writing, entered into by and between the plaintiffs and defendants on the 6th day of November, 1906, whereby the plaintiffs, for and in consideration of the defendants placing their order for the goods, agreed and covenanted with the defendants to give them the exclusive sale of said goods so ordered in the territory of Dallas, in the county of Dallas, in the state of Texas, for a period of one year, and as long thereafter as defendants should purchase not less of the plaintiffs' goods annually than the quantities specified in said order. It was further alleged that the goods, wares, and merchandise referred to in the petition and in said written contract were paints of various grades and kinds, and that the subject-matter of said contract was a commodity and merchandise useful and beneficial to the public, and it was the intention and purpose of said parties to said contract in the making of the same, to prevent competition in the sale and purchase of such commodities and merchandise within the city and county of Dallas, in the state of Texas, so that none could buy from plaintiffs except defendants, and said contract thus created a trust and monopoly, and a conspiracy in restraint of trade, in said merchandise and commodity, and that likewise the defendants, by the terms of said contract, attempted to bind themselves to buy such commodities, to wit, paints from the plaintiffs, and from no other person, for the period, or periods of time designated in said contract. On the trial the plaintiffs introduced in evidence an itemized account of the paints, showing the number of gallons sold defendants and the price per gallon, which account was duly verified under the statute. The defendants introduced in evidence a written contract, signed by the plaintiffs and defendants, wherein it was agreed that, in consideration of...