McConnon & Co. v. Marshall
| Decision Date | 28 January 1926 |
| Docket Number | (No. 3110.) |
| Citation | 280 S.W. 323 |
| Parties | McCONNON & CO. v. MARSHALL et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Hunt County; Geo. B. Hall, Judge.
Suit by McConnon & Co. against Edmon Marshall and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.
H. L. Carpenter and J. Benton Morgan, both of Greenville, for appellant.
Marvin P. McCoy and G. H. Crane, both of Dallas, for appellees.
The appellant is a trading corporation with its domicile in Winona, Minn., and a branch office in Memphis, Tenn. In 1918, and some years thereafter, it was engaged in selling certain proprietary medicines and toilet articles at wholesale to dealers who traveled from house to house in the country selling at retail. In December, 1918, appellant entered into a contract with Edmon Marshall, of Sulphur Springs, Tex., to sell its goods. As a basis of credit to be extended by the appellant, Marshall executed the following written guaranty contract, with the other appellees in this suit as his sureties:
During a period extended over approximately two years goods were sold by appellant upon written orders from Marshall and delivered f. o. b. at Memphis, Tenn. From time to time remittances were made by Marshall, and credits entered as shown on accounts attached to the appellant's original petition. In 1920 appellant claimed the sum of $1,469.66 was due from Marshall as an unpaid balance on his running account. The correctness of that claim was disputed by Marshall, a controversy arose, and he and the appellant ceased their business relations. Appellant later filed this suit in the district court of Hunt county against Marshall and the sureties on his guaranty contract, to recover that balance. Marshall and his sureties answered generally and specially, and, among other things, pleaded that the contract under which the goods were sold was illegal, in that it obligated Marshall to sell only the goods of the appellant, only in Hopkins county, and at prices fixed by the appellant. In a supplemental petition appellant denied generally the averments of the answer.
Appellant insists that the Anti-Trust Laws of Texas (Acts 28th Leg. [1903], c. 94) have no application to the issues involved in this suit, since the dealings of the parties constituted interstate commerce. If the facts stated by the defendants below be true, the contract related to transactions which were to take place in Texas. It may be true that the dealings as to buying and selling between Marshall and appellant constituted interstate commerce; but the contract, if as alleged, bound Marshall to do unlawful acts in Texas. Such a contract would violate the Anti-Trust Law of Texas. Segal v. McCall Co., 184 S. W. 188, 108 Tex. 55.
The court gave as a part of his general charge the following:
"If you believe from the evidence that plaintiff and defendants entered into a contract and agreement that plaintiff was to sell and deliver certain goods, wares, and merchandise to defendant Marshall at prices agreed upon by and between plaintiff and defendant Marshall, to be delivered f. o. b. shipping point and transported to Sulphur Springs, Tex., or such other point as might be designated by defendant Marshall, and that plaintiff and defendant Marshall selected the locality in which he was to sell said goods, and that they selected Hopkins county, Tex., in which to carry on his business and sell said goods; and you further believe from the evidence that defendant Marshall was given the exclusive right by plaintiff to sell said goods in Hopkins county, Tex., and you further believe from the evidence that he was limited (by plaintiff) to sell said goods in Hopkins county alone, or if you believe from the evidence that plaintiff fixed and limited the prices of said goods by which defendant Marshall should sell said goods; and if you believe from the evidence that plaintiff required defendant Marshall to devote all his time alone to the sale of said goods; or if you believe from the evidence that plaintiff required that defendant Marshall should sell said goods alone, exclusive of any other goods — you will find for defendants."
The paragraph, quoted above, was objected to upon the ground that it was too indefinite and submitted a conclusion which, if found to be true, would constitute no defense to the plaintiff's cause of action.
Appellant requested the following special charge:
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