Redland Fruit Co. v. Sargent

• Court: Texas Court of Appeals
• Writing for the Court: Hodges
• Citation: Redland Fruit Co. v. Sargent, 113 S.W. 330 (Tex. App. 1908)
• Decision Date: 15 October 1908
• Parties: REDLAND FRUIT CO. v. SARGENT.

113 S.W. 330

REDLAND FRUIT CO. v. SARGENT.

Court of Civil Appeals of Texas.

October 15, 1908.

Rehearing Denied November 12, 1908.

Appeal from District Court, Harrison County; W. C. Buford, Judge.

Action by H. R. Sargent against the Redland Fruit Company. From a judgment for plaintiff, defendant appeals. Affirmed.

John W. Scott, for appellant. W. C. Lane, for appellee.

HODGES, J.

The appellee recovered a judgment in the court below against the appellant for damages on account of the alleged breach of a contract theretofore made and entered into between the parties. The allegations in the appellee's (Sargent's) petition are substantially as follows: That the appellee and one E. L. Harper, who was superintendent and manager for the appellant company, entered into the following written contract: "The State of Texas, County of Harrison. September 4th, 1905. This agreement made and entered into between E. L. Harper, Supt. of the Redlands Fruit Company, of the first part and H. R. Sargent, of the second part, witnesseth, that the said E. L. Harper, Supt., for and under instructions of said company and in and for the consideration of 5% on all sales of goods made by the said H. R. Sargent, the second party, on the premises of the said company does agree for the said H. R. Sargent to erect a storehouse on their premises and to conduct a general merchandise business and the company will endeavor to give the said H. R. Sargent their trade from the said plantation and will give no other rights on the premises to other parties for the sale of merchandise. The said H. R. Sargent shall sell no whisky or other intoxicating drink on the premises of said company. The said Sargent shall have the right to removal of said storehouse and the right to sell same. The said company acquires no claim or title to said storehouse building and the said Sargent no rights on premises, only so far as terms of this agreement. E. L. Harper, Supt. Redlands Fruit Company. H. R. Sargent." It is alleged that this contract was to last five years; that in pursuance thereof the appellee, plaintiff below, did erect a storehouse at an expense of $750, and put therein a stock of goods which, it is claimed, was worth at the time of the alleged breach from $700 to $1,000, and that the reasonable profits which he would realize from the sale of those goods would have been $1,000 per year; that but for the contract aforesaid he would not have erected the house nor bought the stock of goods; that the appellant company broke the contract it had thus entered into by throwing the trade of the plantation to others, and allowing others to erect a storehouse on its premises; that, on account of the breach of the said contract by the appellant company, the appellee's trade and the profits therefrom, which he says would have amounted to $5,000, left him. Appellee also alleges that his house was rendered valueless to him except to the extent of what it would be worth in lumber, which was estimated at $50; that his goods deteriorated to the extent of $750 on account of being left on his hands. He sues to recover the aggregate sum of $6,450. The defendant answered by a general demurrer, general denial, and specially that appellee breached the contract by selling intoxicating liquors on the premises, and in not paying over the 5 per cent. commissions provided for in the contract. The case was submitted to the court without a jury, and a judgment rendered in favor of the appellee for the sum of $240. From that judgment, this appeal is prosecuted.

There are five assignments of error in the record, two of which assail the refusal of the court to sustain the appellant's general demurrer. The remaining three attack the grounds upon which the court predicated its judgment in matters of facts.

The first question that presents itself for our consideration is whether or not the contract as pleaded by the appellee is void by reason of being in conflict with the provisions of what is known as the "Anti-Trust Law" of this state. The first error assigned complains of the refusal of the court to sustain the general demurrer interposed by the appellant in the trial below. It appears that a general demurrer was filed, but not called to the attention of the trial court, and was not passed on. The reason urged in the appellant's brief as grounds upon which the court should have sustained its general demurrer is that the contract sued upon, and set out in the appellee's original petition, shows upon its face that it is in violation of the law of this state prohibiting the formation of trusts and monopolies. If the appellee's cause of action as stated shows that he is undertaking to recover damages for the breach of an illegal contract, then the objection may be made at any stage of the proceedings. The objection goes to the substance of the petition, and the error, if it exists, is fundamental. Grant v. Whittlesey, 42 Tex. 320; Norris v. Logan (Tex. Civ. App.) 94 S. W. 123; Schuster v. Frendenthal, 74 Tex. 55, 11 S. W. 1051; Alamo Ins. Co. v. Davis (Tex. Civ. App.) 45 S. W. 605; 6 Amer. & Eng. Ency. Plead. & Prac. 380.

The question then is: Do the terms of the contract sued on violate the anti-trust statute? The provisions of the contract pointed out as being obnoxious to that statute are those by which Sargent is given the exclusive right to sell goods on the appellant's premises, and by which appellant bound itself to endeavor to induce its employés to trade with Sargent. In Acts 1903, p. 119, c. 94, a trust is defined as "a combination of capital, skill or acts by two or more persons * * * for either, any or all of the following purposes: (1) To create or which may tend to create, or carry out restrictions in trade or commerce, or aids to commerce, or in the preparation of any product for market or transportation, or to create or carry out restrictions in the free pursuit of any business authorized or permitted by the law of this state." An undertaking on the part of the appellant to endeavor to induce its employés to trade with the appellee could not be regarded as...