Fred Miller Brewing Co. v. Coonrod

• Decision Date: 13 April 1921
• Docket Number: (No. 6544.)
• Citation: 230 S.W. 1099
• Parties: FRED MILLER BREWING CO. v. COONROD.
• Court: Texas Court of Appeals

Page 1099

230 S.W. 1099

FRED MILLER BREWING CO. v. COONROD.

(No. 6544.)

Court of Civil Appeals of Texas. San Antonio.

April 13, 1921.

Rehearing Denied May 11, 1921.

Appeal from District Court, Tarrant County.

Suit by the Fred Miller Brewing Company against E. D. Coonrod. Judgment for defendant, and plaintiff appeals. Reversed and rendered.

E. H. Ratcliff, of Fort Worth, for appellant.

Bryan, Stone & Wade, of Fort Worth, for appellee.

COBBS, J.

Appellant, a Wisconsin corporation, sued to recover the sum of $1,535.60 from E. L. Coonrod, appellee, who, it was alleged, owed it a certain check for that amount issued to appellant, drawn on the Farmers' & Mechanics' National Bank of Fort Worth, Tex. The bank refused payment thereof, whereupon appellant brought its suit against appellee, Coonrod, for payment of the check, and caused a writ of garnishment to be issued and served upon said bank. The bank answered, admitting indebtedness sufficient to pay the check.

The original petition charged that the check was given in part payment and settlement of controversies between appellee, Coonrod, and appellant, which differences had been the cause of a previous suit between the same parties in the district court of Tarrant county, Tex., and pending at the time of the settlement and issuance of the check. Appellant performed the terms of the agreement and delivered valuable property then in its hands, held as collateral security.

The appellee, Coonrod, filed his answer, admitting the execution and delivery of the check, and that he had ordered the payment of said check stopped, because it was issued under duress, threats, and undue influence on the part of appellant; that the undue influence consisted of the fact that, unless the check be issued as demanded and money paid, appellant would withhold from him the possession of a certain life insurance policy which it then held as security for a loan theretofore made to him by appellant; that the $1,535.60 was demanded before appellant would turn over the life insurance policy, security for the amount represented as due and owing by him to appellant under a prior contract relating to the sale by appellant to him of a certain beverage known as "Vivo," which was not due, and there was no right at that time to demand payment.

Appellee, Coonrod, further pleaded that he was not liable to pay said check because the same had been issued in payment of an indebtedness which accrued under a contract by and between appellant and himself, void and unenforceable because in violation of the anti-trust statutes and anti-monopoly statutes of this state. He also, by reconvention, sought to recover damages against appellant for unlawfully causing the issuance of the writ of garnishment.

This case was tried without the intervention of a jury, and the court filed findings of fact and conclusions of law too lengthy to copy, but we will set out hereafter such portions as are deemed material. There is no statement of facts filed, and the correctness of the facts found by the trial court are challenged by neither party. The court found there was no duress that compelled the appellee to sign the check. The appellant challenged the conclusions of law and the judgment of the court upon the facts, or that there was any particular territory given and agreed upon prescribing the place of sale. It may be said that all the facts involved otherwise were found in favor of appellant. The court found to the effect:

"That the contract in controversy was void and unenforceable in any court in this state because in violation of the anti-trust statutes; that the check had been issued in compliance with the terms of a settlement for a debt accruing by reason of the operation of said void contract and said plaintiff could not recover on said check. He also found that the method of handling the beverage known as `Vivo,' its transportation, sale, and resale under the contract, did not constitute interstate commerce, and that the parties to said contract had not waived its provision relative to the restriction on the purchase and sale of said beverage, but that the terms of the settlement of all matters and things in controversy between the parties at that time and in compliance with the terms of which settlement the said $1,535.60 check was issued were, because of the operation of the anti-trust statutes, void and unenforceable, and that plaintiff could not recover the amount of said check and could not force a restoration of the property of plaintiff received by said Coonrod under the terms of the settlement, but that in all other respects, and leaving out of the consideration the anti-trust statutes, the settlement agreed upon by the parties was valid, binding, and enforceable."

Because, the territory in the contract is left blank, and the entire contract itself being introduced in evidence and before the court, appellant contends there can be no presumption, beyond the specific terms thereof, that there was a word of testimony supplying that defect. That will not meet the questions, for the court may also indulge in inferences, not imaginary, but real, in support of the judgment. The contract itself showed that appellee was doing business in Fort Worth and a resident there. The court found that his life insurance policy, given as security for a loan, was surrendered in pursuance with the settlement, and certain fixtures were surrendered to appellee, and appellee delivered to appellant an automobile truck that had been in use for the business in that territory. No other deduction can be drawn but that the court had evidence before it to show the territory in Texas where this contract could apply. As the territory is left blank, it was an obvious omission not regarded of any consequence by the parties themselves who acted on it. Appellee had, prior to the contract, been doing the same kind of business in same territory with appellant. It is too well settled now by authority, in the absence of a statement of facts to the contrary, the court will regard every finding made as proven and every presumption indulged in that is necessary to support the finding and judgment of the trial court; that is to say, there was sufficient testimony introduced to support it, though not set out. No additional findings were requested nor any exceptions taken to the findings as made because not full enough. Oldham v. Medearis, 90 Tex. 506, 39 S. W. 919; Pugh v. Werner, 166 S. W. 698; Gardner v. Watson, 76 Tex. 25, 13 S. W. 39; Producers' Oil Co. v. Snyder, 190 S. W. 514; Kimball v. Houston Oil Co., 100 Tex. 336, 99 S. W. 852; Paden, Adm'r, v. Briscoe, 81 Tex. 563, 17 S. W. 42; Producers' Oil Co. v. Snyder, 190 S. W. 516. In Oldham v. Medearis, supra, opinion by Mr. Justice Denman, the court said:

"In the findings of fact should be stated only the facts established by the evidence, and not the evidence from which the court finds such facts. A fact stated by the court in such findings must, in the absence of a statement of facts, be presumed to have support in the evidence adduced on the trial, just as would the verdict of a jury in a like case. The presumption of law is in favor of the correctness of the action of the trial court, and it is incumbent upon the party seeking revision of such finding in the appellate court to bring up the evidence in the mode prescribed by law."

The chief assignments are that the court erred in holding the contract between the parties void and unenforceable because in violation of the anti-trust statutes in Texas, and contend that it does not violate the law because it does not show any restricted territory. The clause in the contract which the court found void was:

"Territory: ____. In consideration of granting the purchaser the exclusive privilege to sell in the territory aforesaid, the purchaser agrees that during the continuation of this contract he will neither sell nor be directly or indirectly interested in the sale of any nonintoxicating cereal beverage other than that of this company."

As the court correctly found the contract did not constitute interstate commerce, it simplifies and reduces the question down to whether it violates the anti-trust statute of Texas.

It will not be overlooked that in giving the exclusive privilege to appellee to sell in the...