W. T. Rawleigh Co. v. Gober

• Decision Date: 01 March 1928
• Docket Number: (No. 276.)
• Citation: 3 S.W.2d 845
• Parties: W. T. RAWLEIGH CO. v. GOBER et al.
• Court: Texas Court of Appeals

3 S.W.2d 845

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

(No. 276.)

Court of Civil Appeals of Texas. Waco.

March 1, 1928.

Rehearing Denied March 22, 1928.

Appeal from District Court, Hill County; Horton B. Porter, Judge.

Action by the W. T. Rawleigh Company against F. J. Gober and others.From the judgment, plaintiff appeals.Affirmed.

John D. Abney, of Hillsboro, for appellant.

Collins & Dupree, of Hillsboro, for appellees.

GALLAGHER, C. J.

This suit was instituted by the W. T. Rawleigh Company, a corporation, appellant herein, against F. J. Gober, Tom Tyler, and E. L. Tacker, appellees herein, to recover on a stated account for merchandise sold by appellant to appellee Gober for the sum of $1,932.29.The other appellees were sued on a written instrument guaranteeing the payment of said account.Appellee Tacker made default.The pleadings of the parties were sufficient to raise the issues presented as ground for reversal.

There was a trial by the jury on special issues, in response to which the jury found that appellant and appellee Gober contracted and agreed that: (a) The territory in which Gober was to sell the merchandise purchased from appellant by appellee should be restricted; (b) Gober was to sell such merchandise at a price fixed by appellant; (c) Gober should devote his entire time, skill, and attention to the business of selling such merchandise.

The court rendered judgment in favor of appellant against appellee Tacker by default for the sum sued for, and against appellant and in favor of appellees Gober and Tyler that appellant take nothing by its suit against them.Said judgment is here presented for review.

Opinion.

The contentions presented by appellant in this case as grounds for reversal of the judgment appealed from have practically all been considered and determined by the courts of this state.The leading case is W. T. Rawleigh Co. v. Land, 261 S. W. 186.The Court of Civil Appeals for the Sixth District, after a comprehensive consideration of that case, affirmed the judgment of the trial court therein denying appellant a recovery against Land and his guarantors.A writ of error was granted by the Supreme Court, and the case referred to Section A of the Commission of Appeals.That court, in an opinion containing an able discussion of the issues involved and an extensive citation of authorities, recommended that the judgment of the Court of Civil Appeals be affirmed.W. T. Rawleigh Co. v. Land, 115 Tex. 319, 279 S. W. 810.The Supreme Court, in adopting the judgment recommended by the Commission of Appeals(115 Tex. 331, 279 S. W. 814) said:

"Consideration of the facts convinces us that the written contracts between the parties, interpreted in the light of the actual practices between them, were prepared and signed for the purpose of violating the anti-trust laws of this state, within the state, and that the obligations arose in consummating this purpose.This leads to our concurrence in the opinion of the Court of Civil Appeals on motion for rehearing and in the recommendation that the judgment of the Court of Civil Appeals be affirmed, and it is so ordered."

The facts in that case were practically the same as in this, except that the sole issue found by the jury in that case was that Land was restricted to defined territory in making sales of merchandise purchased from appellant.Appellant insists that this case is distinguishable from the Land Case in the binding effect of the obligation assumed by appellant in the contracts sued on herein.In said contracts appellant agreed to sell to appellee at wholesale prices such of its goods, wares, and merchandise as he might from time to time desire to purchase, reserving the right to limit sales, or to refuse to sell in certain contingencies.The contract in the Land Case recited that Land desired to purchase such goods, wares, and merchandise as appellant should thereafter determine to sell to him, the kind and quantity to be optional with appellant, and appellant in that connection agreed to...