Pictorial Review Co. v. Pate Bros.

• Decision Date: 05 February 1916
• Docket Number: (No. 8326.)
• Citation: 185 S.W. 309
• Parties: PICTORIAL REVIEW CO. v. PATE BROS.
• Court: Texas Court of Appeals

185 S.W. 309

PICTORIAL REVIEW CO. v. PATE BROS.

(No. 8326.)

Court of Civil Appeals of Texas. Ft. Worth.

February 5, 1916.

Appeal from Erath County Court; A. P. Young, Judge.

Action by the Pictorial Review Company against J. J. Pate and B. B. Pate, doing business as Pate Brothers, begun in justice's court and appealed by plaintiff to county court. From a judgment there dismissing the action, plaintiff appeals. Affirmed.

W. W. Moores, of Stephenville, for appellant. J. T. Daniel, of Stephenville, for appellees.

BUCK, J.

Appellant, plaintiff below, filed in the justice court of Erath county a verified account against defendants, amounting to $106.15, and covering items for patterns, postage, etc. In the justice court the cause was dismissed upon the ground that the contract relied on was prohibited by article 5313, Revised Statutes 1895, and especially subdivisions Nos. 3 and 5 of said article now incorporated in article 7796, Vernon's Sayles' Texas Civil Statutes, said article being a part of what is known as the "Anti-Trust Law." Upon appeal to the county court, judgment was likewise entered, sustaining defendants' demurrers to plaintiff's petition and dismissing the action at the cost of plaintiff. The action of the court upon defendants' demurrers was not taken until the evidence had been heard; the judgment reciting as follows:

"Thereupon, came on to be heard and considered the special exceptions of the defendants, Pate Bros., a firm composed of J. J. Pate and B. B. Pate, to the petition of the plaintiff, the Pictorial Review Company, a corporation duly incorporated under the laws of the state of New York, and, said demurrers being presented to the court and duly considered, the court announced that it would hear the evidence in the suit and then pass on the demurrers. Thereupon plaintiff introduced proof of its claim, and the defendants declined to introduce any proof, and demurred to the pleading, as above stated, and defendants did not introduce evidence on the merits of this cause. The court being of the opinion that the contract introduced in evidence, and under which the goods, wares, and merchandise were sold to defendants, is void and against public policy, against the anti-trust laws of the state of Texas, and constitutes a monopoly and conspiracy in restraint of trade, it is therefore the judgment and order of this court that said demurrers be sustained and suit be, and the same is hereby, dismissed at the cost of said plaintiff and the surety on its cost bond, to wit, the United States Fidelity & Guaranty Company, a corporation duly incorporated. * * * Plaintiff in open court excepted to the ruling of the court."

Plaintiff excepted to the action of the court in overruling its motion for new trial and gave notice of appeal to this court.

The contract introduced by plaintiff, and upon which it relies to sustain its cause of action, is as follows:

"No. 30. City or town, Stephenville; State, Texas; Date, Mar. 16, 1912.

"The Pictorial Review Company, 222, 224, 226 W. 39th St., New York: Please send us a stock of Pictorial Review patterns, each including a patented Cutting and Construction Guide at fifty per cent. of the retail prices amount to one hundred 00/100 dollars ($100.00) net. Payable as follows: $15.00 on receipt of patterns; and $15.00 in thirty days and $20.00 in 60 days from date of receipt of pattern and the balance ($50.00) is to remain as a standing credit during the term of this order agreement upon which interest is to be paid by us at the rate of five per cent. per annum semiannually — January and July 1st of each year.

"Also send us each month an assortment of new patterns averaging about $5.00, commencing with next issue. Also 3,600 Monthly Fashion Books per annum and other publications in quantities, and at prices specified on the reverse side hereof during the term of this agreement commencing with current issue.

"We will reorder at the prices above named, once each week, or oftener, all patterns sold, thus keeping patterns on hand as above specified. The patterns are not to be sold for other than catalogue retail prices, and the stock of patterns is to be kept and offered for sale on the first (main) floor. We will send you an inventory of stock of patterns on hand at your request, not exceeding twice each year.

"All goods ordered for delivery after the first stock are to be paid for before the 15th day of the month succeeding date of shipment. All prices quoted are net.

"We will not sell any other patterns than the Pictorial Review patterns received from you during the term of this order agreement.

"We will not transfer the stock of Pictorial Review patterns from No. ____ street without your written consent and will pay all transportation charges to and from your New York office.

                           "Discarded Patterns.    (Copy.)
                

"(We are to be allowed to return to your New York office for credit on exchange account, at full price charged, semiannually in February and August of each year, discarded patterns procured under this order agreement and all subsequent reorders and special orders for patterns are to apply against this exchange credit until same is exhausted. This exchange credit is not to be applied in payment for patterns purchased prior to the time the discarded patterns are returned, nor for other goods than patterns.)

"This agreement is to remain in force from date, and for one year after first shipment of patterns and from term to term of the same period thereafter until either party gives the other written notice within thirty days after the expiration of any such term of their desire to terminate this agreement. Then at the end of three months thereafter the business having continued in full operation during that time, we may return to you at your office in New York patterns in good condition which you will accept at full net cost in payment for the balance of the stock mentioned.

                  "All terms are in printed or written form
                  "Signed in duplicate after being read
                              "Merchant's name: Pate Bros
                

"Date, Mar. 16, 1912.

"The above order agreement is accepted subject to the approval of the home office.

                         "The Pictorial Review Company
                          [Incorporated under the Laws of the
                                         State of New York.]
                

"Date Mar. 22, 1912.

"Approved and accepted, New York, N. Y., Mar. 22, 1912.

                         "The Pictorial Review Company
                                            "By M. J. Israel
                

"D. S. 267 — 1000. 1 — 23 — 12.

"M. L. D.

"2 — 28 — 12.

"Monthly Fashion Books: Each month.

"January 200; July 200; 3 copies of Pictorial Review Magazine at 11c each; February 200; August 300; 5...