Hubb-Diggs Co. v. Mitchell

• Decision Date: 04 May 1921
• Docket Number: (No. 6367.)
• Citation: 231 S.W. 425
• Parties: HUBB-DIGGS CO. v. MITCHELL.
• Court: Texas Court of Appeals

231 S.W. 425

HUBB-DIGGS CO. v. MITCHELL.

(No. 6367.)

Court of Civil Appeals of Texas. Austin.

May 4, 1921.

Rehearing Denied June 1, 1921.

Appeal from Coleman County Court; L. G. Matthews, Judge.

Suit by W. I. Mitchell against Hubb-Diggs Company. Default judgment was rendered for plaintiff, and from an order overruling defendant's motion for a new trial, defendant appeals. Reversed and remanded.

McLean, Scott & McLean, of Fort Worth, and Snodgrass, Dibrell & Snodgrass, of Coleman, for appellant.

Critz & Woodward, of Coleman, for appellee.

BRADY, J.

Appellee sued appellant, a corporation, in the county court of Coleman county, for damages for breach of contract, in the sum of $969.50. The petition was filed April 7, 1920, and on the same day a citation was issued and duly served upon appellant, commanding it to appear "on the first Monday in July, 1920, the same being the 5th day of July, 1920." The return day stated in this citation was incorrect, and should have been the first Monday in June, being the 7th day of June. Having discovered the mistake, appellee's attorneys procured the issuance of another citation, giving the correct return date, which was served by leaving a copy of the citation, together with a certified copy of the petition, at the principal office of the company. The service of the second citation was in time for the June term, and, appellant having made default, appellee, on appearance day, June 8, 1920, took judgment by default for the full amount claimed, with interest and costs of suit.

It appears that the first citation was turned over by the president of the company to its attorneys at Fort Worth, for attention, and that neither they nor the officers of the company had any actual knowledge of the service of the second citation until after judgment was taken.

In response to the first citation, appellant's counsel forwarded a plea of privilege to the clerk, on June 25, 1920, which was filed June 26, 1920, at the same time advising appellee's attorneys that they were filing the plea. The reply of said attorneys informed counsel for appellant that judgment by default had been previously rendered. After some correspondence between the attorneys in which appellee refused to agree to set aside the judgment, appellant, on August 26, 1920, filed motion for new trial, and on September 4th appellee filed contest of the motion. The court heard the matter upon the verified motion of appellant and upon the sworn contest of appellee, together with the evidence introduced at the hearing. The motion was overruled, from which this appeal was taken.

Appellant contends that the court erred in rendering judgment by default for appellee, and in refusing to set the same aside, because the contract alleged was subject to general demurrer as being in violation of the anti-trust laws of the state. A careful consideration of the contract alleged, as the basis for recovery, convinces us that it was violative of several provisions of our statutes against trusts and monopolies.

Article 7796, Revised Statutes 1911, among other things, defines a trust to be a combination of capital, skill or acts between two or more persons, firms, corporations, or associations of persons, or either two or more of them, for any of the following purposes:

"2. To fix, maintain, increase or reduce the price of merchandise * * * or commodities. * * *

"4. To fix or maintain any standard or figure whereby the price of any article or commodity of merchandise, * * * shall be in any manner affected, controlled or established.

"5. To make * * * any contract * * * by which they shall agree in any manner to keep the price of an article or commodity * * * at a fixed or graded figure, or by which they shall in any manner affect or maintain the price of any commodity or article."

These and related provisions of the antitrust laws have been frequently before our courts. Among the cases dealing with this question may be cited the following: Wood v. Tex. Ice & Cold S. Co., 171 S. W. 497; Star Mill & Elevator Co. v. F. W. G. C., 146 S. W. 604; Segal v. McCall, 108 Tex. 55, 184 S. W. 188; Woods v. American Brew Ass'n., 183 S. W. 127; Am. Brewing Ass'n v. Woods, 215 S. W. 448; Fuqua et al. v. Pabst Brewing Co., 90 Tex. 298, 38 S. W. 29, 750, 35 L. R. A. 241; Coal Co. v. Lawson, 89 Tex. 394, 32 S. W. 871, 34 S. W. 919; Brewing Co. v. Templeman, 90 Tex. 277, 38 S. W. 27; Tex. Brewing Co. v. Anderson, 40 S. W. 737; Tex. Brewing Co. v. Durrum, 46 S. W. 880; Mansur & Tabbetts Imp. Co. v. Price, 22 Tex. Civ. App. 616, 55 S. W. 764; Pasteur Vaccine Co. v. Burkey, 22 Tex. Civ. App. 232, 54 S. W. 804; White Dental Mfg. Co. v. Hertzberg, 51 S. W. 355; Coal Co. v. Lawson, 89 Tex. 394, 32 S. W. 871, 34 S. W. 919; Houck v. Association, 88 Tex. 184, 30 S. W. 869; Simmons & Co. v. Terry, 79 S. W. 1103; State v. Racine Sattley Co., 63 Tex. Civ. App. 663, 134 S. W. 401; Jersey Creme Co. v. McDaniel Bottling Co., 152 S. W. 1187; J. R. Watkins Medical Co. v. Johnson et al., 162 S. W. 394; Rawleigh Medical Co. v. Mayberry, 193 S. W. 199; Armstrong v. Rawleigh Medical Co., 178 S. W. 582; Pictorial Review v. Pate Bros., 185 S. W. 309; Rawleigh Med. Co. v. Fitzpatrick, 184 S. W. 549; Rawleigh Med. Co. v. Gunn, 186 S. W. 385; Newby v. W. T. Rawleigh Co., 194 S. W. 1173; Whisenant et al v. Shores-Mueller, 194 S. W. 1175; Pennsylvania Rubber Co. v. McClain, 200 S. W. 586; Dodd v. W. T. Rawleigh Co., 203 S. W. 131; State v. Willys-Overland Co., 211 S. W. 609. These authorities are referred to, not as being in point upon the facts involved, but as illustrating the uniformity with which the principles and policies embodied in our statutes against trusts and unlawful conspiracies have been recognized and enforced.

In the absence of any authority, we should not hesitate to hold the contract made the basis of this suit to be illegal and void, as in contravention of the statutory provisions heretofore stated. It was, in substance, alleged that on or about June 7, 1919, appellant sold and delivered to appellee seven Fordson tractors, the appellant being a wholesale dealer in these articles, and the appellee a retail dealer. It was alleged that the market value of the tractors at the residence of appellee was at all times $930 each, and it was expressly averred that —

"The said defendant then and there, and at the time of said sale, agreed with plaintiff that the same should be sold at said sum of $930."

The plain effect of this averment is that the parties had agreed to fix and maintain the price for the sale of a commodity or article of commerce. It is then alleged that about June 17th appellant wired appellee that the manufacturers of the tractors, Henry Ford & Son, had reduced the price, and wired and instructed appellee to likewise reduce the price on the tractors so as to thereafter sell the same for $791.50 to the retail trade. It is next alleged that appellant had, by various contracts and writings, agreed and contracted with appellee to indemnify and save him harmless from any decline or reduction in price, and had agreed and contracted with him to repay and reimburse him —

"for any decrease in the retail price of said tractors put into effect by plaintiff at the instance or request of defendant; and that by virtue of and in accordance with said contracts and agreements with plaintiff he reduced the retail price of said tractors from $930 each to $791.50 each."

It cannot be even plausibly argued that this is not an averment that appellee, in pursuance to contracts and agreements theretofore made, reduced, fixed, and maintained the retail price of...