W. T. Rawleigh Co. v. Smith

• Decision Date: 28 April 1921
• Docket Number: (No. 1215.)
• Citation: 231 S.W. 799
• Parties: W. T. RAWLEIGH CO. v. SMITH et al.
• Court: Texas Court of Appeals

231 S.W. 799

W. T. RAWLEIGH CO. v.SMITH et al.

(No. 1215.)

Court of Civil Appeals of Texas. El Paso.

April 28, 1921.

Rehearing Denied June 16, 1921.

Appeal from District Court, Jones County; W. R. Chapman, Judge.

Action by the W. T. Rawleigh Company against J. F. Smith and others.From a judgment for defendants, plaintiff appeals.Affirmed.

Walter S. Pope, of Anson, for appellant

Jno.B. Thomas, of Anson, and E. T. Brooks, of Abilene, for appellees.

HARPER, C. J.

Suit was instituted in the district court of Jones county, Tex., by the W. T. Rawleigh Company against W. J. Hendrix, principal debtor, and J. F. Smith, G. L. Goza, and W. A. Howard, as sureties or guarantors, for a balance of $1,543.53, besides interest upon open, verified account for goods, wares, and merchandise sold and delivered to W. J. Hendrix on or about June 10, 1916, and various dates thereafter fully shown on itemized and verified account attached to plaintiff's original petition.

Appellant alleged that appelleeW. J. Hendrix on or about December 7, 1917, executed and entered into a written contract with appellant wherein he agreed to pay any balance due plaintiff for goods previously and subsequently purchased at wholesale price f. o. b. Freeport, Ill.; that appended to said contract and as a part of same is a guaranty contract executed on or about the same date by defendantsJ. F. Smith, G. L. Goza, and W. A. Howard, a copy of all of which was appended to plaintiff's petition in which they bound and obligated themselves to pay said account.

Appellees answered by general and special exception, general denial, denying that said goods, wares, and merchandise were sold under the contract sued on, but alleged that they were sold on a subsequent contract, or else a subsequent enlargement on said original contract; that appellants restricted appellee Hendrix to certain prescribed territory in which to sell said goods, to a certain price for which to sell said goods, and to the sole business of selling said goods, all of which was in violation of the Anti-Trust Laws of Texas(Vernon's Sayles' Ann. Civ. St. 1914, arts. 7796-7818), and in restraint of trade, and hence void.To which answer appellant answered with general and special exceptions and general denial and specially alleged that all communication between appellant and appellee Hendrix after the execution of said contract was merely educational and advisory and did not amount to a new contract or modify or change the contract sued on.

The case was submitted to the jury on the following special issues:

"QuestionNo. 1: Did plaintiff and defendantW. J. Hendrix contract or agree that the territory in which the said W. J. Hendrix was to sell the goods of plaintiff was to be restricted?

"QuestionNo. 2: Did plaintiff and defendantW. J. Hendrix contract or agree that defendantW. J. Hendrix was to sell the goods shipped him by plaintiff at a price fixed or to be fixed by plaintiff?

"QuestionNo. 3: Did plaintiff and defendantW. J. Hendrix contract or agree that defendantW. J. Hendrix was to be restricted alone to the business of selling goods purchased by defendantW. J. Hendrix from the plaintiff?"

All of which were answered in the affirmative, and on which verdict the court rendered judgment that appellant take nothing and appellees recover of appellant their costs.

Motion for new trial was filed, presented, and overruled, and the case is now properly and regularly before this court on appeal.

Assignments 1 and 9 insist that the court should have instructed a verdict for the appellant, and that the judgment entered is contrary to the law and the evidence, and 2, 3, and 4 urge that there is no evidence to support the findings of the jury to the three special issues submitted.

The following are some of the facts relied upon by appellee to support the verdict.We confine ourselves to these matters because the rule is that, in passing upon whether there is sufficient evidence to sustain a verdict, an appellate court must reject all evidence favorable to the losing party, and consider only that sustaining the verdict, and if the jury might have reached such a verdict on the evidence, the court on appeal cannot set it aside.Cartwright v. Canode, 106 Tex. 502, 171 S. W. 696.

The exact question presented is that the evidence in the record has no probative value as a defense to the cause of action asserted by the plaintiff.The appellant objected to its admission by the court, and has assigned errors because it was not competent evidence to vary the provisions of a written contract.

The account sued on is an open verified account showing items for the years 1916, 1917, and 1918.The contract recites:

"Renewal Contract.

"(1) This contract made at the city of Freeport, state of Illinois, a corporation, between the Rawleigh Company, seller, and Hendrix, * * * of Texas, buyer.

"(2) That for and in consideration of the promises hereinafter contained to be kept and performed by the parties hereto, the seller * * * agrees to sell in such reasonable quantities as the buyer may from time to time desire to purchase goods, wares, and merchandise manufactured or sold by it.But seller shall have the right to limit sales and shipments to the buyer or refuse to make any further sales and shipments should said buyer fail to make payments as agreed.

"(3) All goods sold to be delivered f. o. b. Freeport."

(4) Provides for the price.

(5), (6), and (7) provide for payments and the manner thereof.

(8) Sale of wagon to buyer.

(9) Seller agrees to repurchase all unsold goods.

(10) Provides means of terminating contract.To terminate in all events December 31, 1918.

(11) Agreement to extend by making new contract.

"(12) It is further understood and agreed that any and all booklets, bulletins, folders, leaflets, letters, and all literature of all nature which the seller may mail or send out to the buyer shall in no wise alter, modify, change, or effect this agreement, and shall only be considered as educational and advisory.

"(13) And it is further understood and agreed by and between the parties hereto that this contract includes and does and shall constitute the sole, only, and entire agreement between the parties...