Scoggins v. Furst & Thomas

• Decision Date: 15 June 1928
• Docket Number: (No. 3517.)
• Citation: 9 S.W.2d 405
• Parties: SCOGGINS et al. v. FURST & THOMAS.
• Court: Texas Court of Appeals

Page 405

9 S.W.2d 405

SCOGGINS et al. v. FURST & THOMAS.

(No. 3517.)

Court of Civil Appeals of Texas. Texarkana.

June 15, 1928.

Rehearing Denied July 19, 1928.

Appeal from Wood County Court; H. V. Puckett, Judge.

Suit by Furst & Thomas against E. Scoggins and others. Judgment for plaintiffs, and defendants appeal. Reversed and rendered.

February 27, 1920, appellant E. Scoggins and appellees, Furst & Thomas, entered into a contract for the sale by the latter to the former of certain goods, wares, and merchandise, in violation of the law of this state defining and prohibiting "conspiracies against trade." Articles 7796 to 7809, Vernon's Statutes 1914. Appellants A. O. Harris, H. W. Brewer, and I. U. Rountree became parties to said contract as guarantors of the performance by Scoggins of his undertaking thereunder. June 1, 1921, Scoggins, being indebted to appellees for a balance of $203.11 on account of goods they had sold and delivered to him under the terms of said contract, made and delivered to them his promissory note, whereby he undertook to pay said sum to appellees' order on January 1, 1922, and at the same time appellants Harris, Brewer, and Rountree executed said note as sureties. This suit by appellees against said Scoggins, Harris, Brewer, and Rountree was on that note. The trial of the case was to the court without a jury, and resulted in a judgment in appellees' favor against appellant for the amount of the note. The trial court made, reduced to writing, and filed findings of fact and his conclusions of law, as provided in article 2208, R. S. 1925. An excerpt therefrom as follows shows the view he took of the case:

"The defendants (appellants) having executed the promissory note herein sued on, the consideration for said note being the actual cash value of the goods, wares, and merchandise sold and delivered to the said E. Scoggins, said note having been executed and delivered long after the aforesaid void contract had ended, and said promissory note being an independent promise to pay made after the termination of the aforesaid void contract, and the plaintiff having sued on the aforesaid promissory note and not having sued on the contract, I conclude that the plaintiff (appellees) ought to recover herein."

Jones & Jones, of Mineola, for appellants.

H. L. Wilkinson, of Quitman, and R. D. Allen, of Sulphur Springs, for appellees.

WILLSON, C. J. (after stating the facts as above).

That the contract between appellees and appellant Scoggins covering the sale and purchase of the merchandise was in violation of the statute (articles 7796 to 7809, Vernon's Statutes 1914) against trusts, monopolies, and conspiracies in restraint of trade, and therefore void (article 7807, Vernon's Statutes; W. T. Raleigh Co. v. Land [Tex. Civ. App.] 261 S. W. 186; W. T. Raleigh Co. v. Land [Tex. Com. App.] 279 S. W. 810), is not questioned here. The contention that appellees nevertheless were entitled to recover as determined by the judgment is on the theory that the note sued upon was free of the vice in the sales contract. In support of that view it is insisted it appeared the note was voluntarily executed in a settlement had between the parties to the contract after the termination thereof, and that it (the note) therefore was an independent obligation, separate and distinct from the sales contract, and enforceable in the courts without reference to it. It is argued that, notwithstanding an obligation may grow out of and be connected with an illegal contract (as, according to findings of the trial court, the one sued upon clearly was), a plaintiff suing on such obligation is entitled to recover thereon if he makes out his case without the aid of the illegal contract. It is argued, further, that appellees did that in the instant case when they offered and the trial court admitted the note sued upon as evidence.

It is true, we think, that the admission of the note as evidence made a prima facie case in appellees' favor. But, as against appellees, appellants were entitled to rebut the case so made (article 574, R. S. 1925; Wadsworth v. Dunnam, 117 Ala. 661, 23 So. 699; Wegner v. Biering, 65 Tex. 506; Hibbler v. Howe [Tex. Civ. App.] 295 S. W. 299; Shelton v. Marshall, 16 Tex. 344; Reed v. Brewer [Tex. Civ. App.] 36 S. W. 99; Id., 90 Tex. 144, 37 S. W. 418; City Nat. Bank v. De Baum, 166 Ark. 18, 265 S. W. 648; Columbia Carriage Co. v. Hatch, 19 Tex. Civ. App. 120, 47 S. W. 288; Lanham v. Meadows, 72 W. Va. 610, 78 S. E. 750, 47 L. R. A. [N. S.] 592; Hall v. Coppell, 7 Wall. 542, 19 L. Ed. 244; Armstrong v. Toler, 11 Wheat. 264, 6 L. Ed. 468), and...