Gates v. Hooper

• Decision Date: 05 April 1897
• Citation: 39 S.W. 1079
• Parties: GATES v. HOOPER.
• Court: Texas Supreme Court

39 S.W. 1079

GATES v. HOOPER.

Supreme Court of Texas.

April 5, 1897.

Error to court of civil appeals of Fourth supreme judicial district.

Action by W. L. Gates against W. R. Hooper for breach of contract. There was a judgment of the court of civil appeals (39 S. W. 186) affirming a judgment sustaining a

demurrer to the complaint, and plaintiff brings error. Reversed.

B. B. Rose and J. T. Bivens, for plaintiff in error. Ellis & Martin, for defendant in error.

DENMAN, J.

We adopt the statement of the case made by the court of civil appeals, as follows: "This suit was instituted by appellant against appellee on the 2d day of May, A. D. 1896. The allegations in original petition are as follows: That on the 14th of June, 1895, defendant (appellee), being then a merchant, and doing business as such merchant in the town of Batesville, in said county (Zavalla), entered into an agreement, partly verbal and partly in writing, with plaintiff (appellant), then and there also a merchant, and doing business in said town as such merchant, by which defendant agreed, bound, and obligated himself, for a valuable consideration moving from plaintiff, to retire from the mercantile business in said town of Batesville for the period of twelve months, and further agreed to use every effort to secure for the plaintiff all the patronage and custom that he had himself enjoyed in the trade of merchandise at said place, including his individual patronage and custom. That at said time defendant enjoyed a large and profitable trade in merchandise in and around Batesville. That at said time defendant did retire from business as he had agreed and covenanted to do. That in consideration therefor this plaintiff did purchase from defendant, at his earnest request, his stock of goods, wares, and merchandise then and there being, and assumed to pay for him outstanding bills for goods, and purchased large amounts of notes and accounts pertaining to defendant's mercantile enterprise, at his urgent request, all upon the faith of defendant's said covenant that he would not engage in any mercantile enterprise or business for the space of time aforesaid in the territory aforesaid. That for a short time after such agreement was completed and purchase made the said defendant faithfully observed his covenant. That all the former patrons and customers of defendant thereafter, for a time, patronized and traded with plaintiff, the defendant himself also patronizing and dealing with plaintiff. That thereafter, to wit, on or about the 13th of September, 1895, the defendant totally disregarded his covenant with this plaintiff, did purchase a large stock of goods, wares, and merchandise, and did resume his business as a merchant in said town, and has thence ever since pursued, and now pursues, his said trade in said town, and has thereby withdrawn large and valuable patronage from plaintiff, in plain violation of said covenant, to plaintiff's damage fifteen hundred dollars. Appellee demurred generally, on the ground that the contract set out in plaintiff's petition was illegal and...