W. T. Rawleigh Medical Co. v. Fitzpatrick

• Decision Date: 16 February 1916
• Docket Number: (No. 5579.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 184 S.W. 549
• Parties: W. T. RAWLEIGH MEDICAL CO. v. FITZPATRICK et al.
• Court: Texas Court of Appeals

184 S.W. 549

W. T. RAWLEIGH MEDICAL CO. v. FITZPATRICK et al.

(No. 5579.)^*

Court of Civil Appeals of Texas. Austin.

February 16, 1916.

Rehearing Denied March 22, 1916.

Error from District Court, Coleman County; John W. Goodwin, Judge.

Suit by the W. T. Rawleigh Medical Company against R. P. Fitzpatrick and others. To review a judgment for defendants, plaintiff brings error. Affirmed.

Snodgrass, Dibrell & Snodgrass, of Coleman, for plaintiff in error. Critz & Woodward, of Coleman, for defendants in error.

RICE, J.

This suit was brought by the W. T. Rawleigh Medical Company, a private corporation of Freeport, Ill., plaintiff in error, against R. P. Fitzpatrick, J. E. Seymour, and C. L. Grable, defendants in error, to recover $676.26, a balance claimed to be due it by the former for merchandise sold by it to him, payment of which was guaranteed by said Seymour and Grable. It was alleged by plaintiff in error that on the 23d of November, 1909, it entered into a written contract with said R. P. Fitzpatrick, the performance of which was guaranteed by said Seymour and Grable, whereby, in consideration that plaintiff in error would sell to him on credit, at wholesale prices, to be sold by him at retail, certain merchandise therein mentioned, to be shipped to him from Freeport, Ill., to Loraine, Tex., he bound himself to pay for said merchandise at certain stipulated times, and, among other things, agreed to sell no other goods than those sold him by said company, and to sell all such goods at regular retail prices to be indicated by said company, and to have no other business or employment; which contract was subject to acceptance by plaintiff in error at its home office, and to continue in force only so long as his said account and the amount of his purchases were satisfactory to said company. Defendants in error, among other things, interposed a general demurrer to plaintiff's petition, on the ground that said contract above set out, upon which the suit is based, is violative of the anti-trust statutes of this state, which demurrer was sustained, and, plaintiff refusing to amend, the suit was dismissed, from which judgment this writ of error is sued out.

Plaintiff in error contends that the action of the court in sustaining said demurrer was incorrect and ought not to be upheld, for the reason that it appeared from the petition that the sale and purchase of the goods in question was a transaction involving interstate commerce and therefore did not come within the purview of the anti-trust statutes of this state. So, the questions presented for our consideration are: (1) Whether or not the contract set out, and under which the goods were purchased, is in violation of our anti-trust laws; and (2) if so, can such statutes be urged as a defense to the payment of the account, since the same was based upon and grew out of an interstate commerce transaction?

We think there can be no doubt but that said contract was in violation of articles 7796 and 7798 of the Revised Statutes of 1911, and, if so, was illegal and void, as declared by article 7799 of said statutes, because defendant Fitzpatrick thereby bound himself to buy from no one but plaintiff in error, and that said goods so purchased should be resold by him at definite prices, fixed by plaintiff in error, and further agreed to have no other business or employment. These provisions of said contract were in restraint of trade and rendered the contract illegal and void. Wood v. Texas Ice & Cold Storage Co., 171 S. W. 497; F. R. Watkins Medical Co. v. Johnson, 162 S. W. 394. And see, also, Armstrong v. Rawleigh Medical Co., 178 S. W. 583, where a contract for the sale of goods almost exactly similar to the one under consideration was held to be in violation of our anti-trust statutes. See, also, Fuqua v. Pabst Brewing Co., 90 Tex. 298, 38 S. W. 29, 750, 35 L. R. A. 241; T. & P. Coal Co. v. Lawson, 89 Tex. 394, 32 S. W. 871, 34 S. W. 919; Texas Brewing Co. v. Templeman, 90 Tex. 277, 38 S. W. 27.

But it is further contended on the part of plaintiff in error that, notwithstanding said contract may be violative of the anti-trust statutes, yet said statutes constitute no defense here, because the transaction involves interstate commerce, and cite in support of this contention, among others, the following cases: Albertype Co. v. Feist, 102 Tex. 219, 114 S. W. 791; McCall v. Stiff Dry Goods Co., 142 S. W. 659; Stein Double Cushion Tire Co. v. Fulton Co., 159 S. W. 1014; Eclipse Paint Mfg. Co. v. New Process Roofing Co., 55 Tex. Civ. App. 553, 120 S. W. 532; Maroney Hardware Co. v. Goodwin Pottery Co., 120 S. W. 1088; Miller v. Goodman, 91 Tex. 41, 40 S. W. 718.

The majority of the above cases have been ably reviewed and distinguished by Mr. Justice Taliaferro in Watkins Medical Co. v. Johnson, supra, from the case of Fuqua v. Pabst Brewing Co., supra, and shown not to be in conflict therewith. In the latter case, notwithstanding the fact that it was a suit to recover for beer sold by a Wisconsin brewer to a Texas dealer, and came within the protection of the commerce...