McCall v. Whaley

• Decision Date: 16 December 1908
• Citation: 115 S.W. 658
• Parties: McCALL v. WHALEY et al.
• Court: Texas Court of Appeals

115 S.W. 658

McCALL v. WHALEY et al.

Court of Civil Appeals of Texas.

December 16, 1908.

On Rehearing, February 3, 1909.

Appeal from Falls County Court; D. H. Boyles, Judge.

Action by J. H. Whaley against C. J. McCall and another. From a judgment for plaintiff, the defendant named appealed. Affirmed.

Freeman & Morrison and Z. I. Harlan, for appellant. Spivey, Bartlett & Carter, for appellees.

KEY, J.

C. J. McCall and W. F. Barclay made an oral agreement by which McCall was to sell to Barclay a storehouse and lot and a stock of drugs and stationery in the town of Burlington, Tex. Barclay paid to McCall $750 on the trade, and it was agreed between them that the contract would be reduced to writing the next day. On the next day Barclay sent a written contract to McCall for him to sign, which he declined to do, claiming that it contained a stipulation that was not in the verbal agreement. Thereafter several conferences were held between them, but no agreement reached, and, after the lapse of several days, Barclay notified McCall in writing that the trade was off, and demanded the return of the check he had given for the $750, which demand McCall refused to comply with. Thereafter McCall collected the $750 check, and Barclay transferred his claim against McCall for the $750 to J. H. Whaley, who brought this suit against both McCall and Barclay; the latter having guaranteed the payment of the claim. A credit of $7.40 was admitted, and the suit was brought for the balance. Barclay made no defense, but McCall did and averred in his answer that the $750 was delivered to him to be applied as part payment for the property sold to Barclay in the event of performance by Barclay, and was to be kept by McCall as a forfeit in the event of Barclay's failure to perform his part of the contract. It was also asserted in defendant's answer that the plaintiff should not be permitted to recover, because the contract for the sale of the property included a stipulation to the effect that McCall should retire from the drug and stationery business in the town of Burlington, and should not compete with Barclay in that business, which agreement McCall alleged in his answer constituted a violation of the anti-trust statutes of this state. The undisputed testimony sustained the averment referred to, but showed that the contract had never been executed. The trial court accepted the defendant's construction of the anti-trust statute; but, as the contract had never been executed, held that the plaintiff was entitled to recover as against McCall, and peremptorily instructed a verdict for the plaintiff.

The defendant McCall has appealed, and now asserts that the facts pleaded by him as constituting a breach of the anti-trust statute are not in fact violative of that statute, and therefore the court erred in directing a verdict for the plaintiff, and in not permitting the jury to determine which party had breached the contract. We find it unnecessary to decide whether or not the trial court ruled correctly in holding that the contract was in violation of the anti-trust statute, as it is also unnecessary to decide whether or not, if error was committed in that respect, it was invited by appellant in such manner as to preclude him from complaining, because in our opinion, and for another and different reason, the contract was unlawful. It was shown by undisputed testimony that one of the stipulations in the contract was to the effect that McCall was to resign the office of postmaster at Burlington, and was to use his influence to procure such person as Barclay might designate to be appointed as his successor. It is contrary to public policy, and therefore unlawful, for persons to traffic in official positions; and therefore an agreement to resign an office or exert efforts to procure an office for another for a consideration is unlawful and not...