S. S. White Dental Mfg. Co. v. Hertzberg
| Decision Date | 19 April 1899 |
| Citation | 51 S.W. 355 |
| Parties | S. S. WHITE DENTAL MFG. CO. v. HERTZBERG. |
| Court | Texas Court of Appeals |
Action by the S. S. White Dental Manufacturing Company against E. Hertzberg. There was judgment for defendant on appeal from a justice of the peace, and plaintiff brings error. Affirmed.
C. A. Keller, for plaintiff in error. J. D. Guinn, for defendant in error.
Plaintiff in error sued on an account for $84.35, being a balance due by defendant in error on an account for merchandise. In the justice's court, where the suit originated, defendant in error pleaded damages in reconvention; but in the district court an amended original answer was filed, in which it was alleged that the claim of the plaintiff was based upon a contract by which defendant was to have the exclusive agency and right to sell any and all goods manufactured or kept in stock by plaintiff, and that defendant was not to sell any other line of dental goods than those furnished by plaintiff, and that the contract was in restraint of trade. It was also pleaded that in 1894 and 1895, before the goods for the value of which the suit was brought were delivered, plaintiff had violated the aforesaid contract by selling to another party. The latter plea, upon exception of plaintiff in error, was stricken out. The court held the contract one in restraint of trade, and rendered judgment for defendant in error.
In answer to a certified question by this court, the supreme court has held that any new matter, not amounting to a cross action, can be set up by the defendant in the county or district courts in cases appealed from justice's court; and, deferring to that opinion, we hold that the illegality of the contract was properly pleaded in the district court. Manufacturing Co. v. Hertzberg, 50 S. W. 122.
It has been definitely held by the supreme court that contracts like the one pleaded and proved in this case are in restraint of trade, and therefore not enforceable at law. Coal Co. v. Lawson, 89 Tex. 395, 32 S. W. 871, and 34 S. W. 919; Houck v. Association, 88 Tex. 184, 30 S. W. 869. The contract was shown to have been in effect when the goods were sold. The judgment is affirmed.
On Motion for Rehearing.
(May 31, 1899.)
It is evident from the pleadings and testimony that the alleged sales made in 1894 and 1895 to other parties were made without the knowledge of defendant in error, and the goods for whose price he was...
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