Gust Feist Co. v. Albertype Co.

Citation109 S.W. 1139
Decision Date17 April 1908
CourtCourt of Appeals of Texas

Appeal from Galveston County Court; G. E. Mann, Judge.

Action by Adolph Witteman, under the name of the Albertype Company, against Gust Feist, under the name of the Gust Feist Company. From a judgment for plaintiff, defendant appeals. Reversed and dismissed.

James B. & Charles J. Stubbs, for appellant. Geo. Q. McCracken, for appellee.


Adolph Witteman, under the name of "the Albertype Company," sued Gust Feist, under the name of "Gust Feist Company," for $375, the purchase price of certain albums containing views of the city of Galveston sold by the former to the latter. Defendant answered by general denial, and specially alleged, under oath, that by a contract in writing plaintiff agreed to make and deliver to appellant 2,000 souvenir albums according to an agreed schedule and order of arrangement of the views, and alleged appellee's breach of the contract, in regard to the schedule, and further pleaded that by said contract it was understood and agreed that appellant should have the exclusive control and sale of said albums, and that appellee had breached this part of the contract by selling albums containing in part the same views to another party in Galveston; that by reason of the breach in the particulars indicated the albums were not as attractive and did not find as ready sale as they would had the contract as to the order of arrangement of the views been followed, and because of the lack of attractiveness, and because of the sale to other parties in Galveston of similar albums, thereby affording competition in the selling price, appellant could not sell for the prices he would otherwise have obtained, and could not make as large a profit as he otherwise would have made, whereby he claims to have been damaged, and alleged his damages by way of cross-bill at $500. The case was tried without a jury, and the court ignoring appellant's claim for damages rendered judgment for appellee for $375, the contract price of the albums, and for costs. Appellant moved for a new trial, setting up as one of the grounds of his motion that the contract was illegal, because in violation of the anti-trust laws of this state; and, a new trial being refused, brings this case before us on appeal.

By his first assignment of error appellant contends that the court in rendering judgment in favor of appellee erred, because the contract entered into being for the exclusive sale of the albums, and for the purpose of destroying competition and to enable the appellant to control the price to be charged by him therefor, was in violation of the antitrust laws of Texas. He urges that such a contract was void, hence the vendor could not maintain a suit thereon to recover the price of goods sold in pursuance thereof. While appellant pleaded the fact that the contract gave him the exclusive right to sell the albums and sought damages because of appellee's breach in this regard, it is worthy of note that he did not seem to observe the turpitude involved in such a transaction until the trial court refused to allow him damages in a sum much greater than the contract price of the views. Nowhere in his pleadings is the anti-trust law invoked, and in his motion for new trial, after the court had refused to allow his large claim for damages, does he for the first time awake to the fact that in making such a contract, which the evidence shows he demanded for his own protection and gain, both he and the appellee had violated and were amenable to the criminal laws of this state. The evidence shows that by the terms of the contract appellant was...

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5 cases
  • Elephant Butte Alfalfa Ass'n v. Rouault.
    • United States
    • Supreme Court of New Mexico
    • March 30, 1926
    ......v. Albertype Co. (Tex. Civ. App. 1908) 109 S. W. 1139, cited by appellee, it is enough to say that it-is not in ......
  • Elephant Butte Alfalfa Ass'n v. Rouault
    • United States
    • Supreme Court of New Mexico
    • March 30, 1926 being an illegal monopoly or an unreasonable restraint of trade." With respect to Gus Fiest Co. v. Albertype Co. (Tex. Civ. App. 1908) 109 S.W. 1139, cited by appellee, it is enough to say that it-is not in line with the current of recent decisions involving facts like those in the case ......
  • Pennsylvania Rubber Co. v. McClain
    • United States
    • Court of Appeals of Texas
    • January 19, 1918
    ......478, 119 S. W. 294; Troy Buggy Works Co. v. Fife & Miller, 74 S. W. 956; Gus Feist Co. v. Albertype Co., 109 S. W. 1139. The ......
  • Albertype Co. v. Gust Feist Co.
    • United States
    • Supreme Court of Texas
    • January 6, 1909
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