"(1) This is a suit by the state of Texas, as plaintiff, against the Waters-Pierce Oil Company, a private corporation, and E. T. Hathaway, William Grice, F. A. Austin, J. W. Keenan, and Lewis Fries, as defendants, to cancel the permit of said Waters-Pierce Oil Company to do business in this state, and to enjoin all of said defendants from further transacting the business of said company in this state, on account of an alleged violation of the laws of this state against trusts by said company, its agents and employés.
"(2) The plaintiff alleges that the defendant Waters-Pierce Oil Company is a private corporation, incorporated under the laws of the state of Missouri, for the purpose of dealing in petroleum and its products, and in selling the same in the state of Missouri and other states, and that on July 6, 1889, said company filed its articles of incorporation in the secretary of state's office in this state, and secured a permit to transact its said business in the state of Texas for a term of ten years, as provided by the laws of this state, and that since said date defendant company has been transacting its said business in this state, and has divided this state into five general divisions for the purpose of transacting its said business, and that the defendants E. T. Hathaway, F. A. Austin, William Grice, J. W. Keenan, and Lewis Fries are the respective managers of defendant company in said general divisions of this state, and have appointed various local agents throughout this state for the transaction of its business.
"(3) Plaintiff further alleges that the defendant company has violated the law of this state against trusts, by making and entering into a contract with, and becoming a member of, the Standard Oil Trust, which contract and agreement is set out in full in plaintiff's petition, and for doing certain other acts in connection with said Standard Oil Trust agreement.
"(3½) Plaintiff also alleges that the defendant company has violated the law of this state against trusts by entering into a contract with the Eagle Refining Company, with C. W. Robinson, with J. L. Lewis, and Stillwell Bros., as set out in plaintiff's petition and introduced in evidence before you.
"(4) Plaintiff further alleges that since July 6, 1889, said defendant company has been, and still is, engaged in dealing in and selling the products of petroleum in this state, and that during that time said company has made, and is still making, through its agents in this state, contracts and agreements, by and between said company and other parties dealing in, buying, and selling similar oils, in this state, by the terms of which agreements said parties, for a valuable consideration paid them by defendant company, agreed and contracted that they would not buy any oils from any other person or corporation, but would deal with and buy and sell oils obtained from said defendant company exclusively; that said company has further contracted with certain of said persons, as aforesaid, for a valuable consideration, paid by defendant company to said parties, by the terms of which said parties contracted and agreed to buy from and sell the oils of defendant company exclusively, and not to sell the oils so bought, as aforesaid, to any one buying from, or dealing with, any other person or corporation dealing in such oils in competition with
said defendant company; and, further, that said company, since July 6, 1889, has made and entered into other contracts and agreements, by and between it and various others dealing in, buying, and selling oils, by the terms of which said parties agree with said company to purchase its said oils, and to sell the same to others desiring to purchase the same, at prices fixed and established by it or its agents and officers. The names and dates and contracts above referred to are set out in plaintiff's petition.
"(5) Plaintiff further alleges that prior to July 6, 1889, and also since that date, the defendant company entered into certain contracts in writing, with certain parties in Brownsville, Tex., by the terms of which said parties bound themselves to buy all their oil from defendant company, for a fixed period, in consideration of certain rebates allowed them by defendant company, and also agreed to sell such oil at a price fixed by defendant company, and that such contracts as were entered into prior to 1889 have been carried out and executed, and business done thereunder by said parties since that date to the present time. The parties with whom said contracts were made, and the terms thereof, are set out in plaintiff's petition.
"(6) Plaintiff alleges that all of said contracts above mentioned were made by the agents of said defendant company, and were authorized by it, and were fully ratified and carried out by it after same had been so made, and that the same were a violation of the laws against trusts of this state; that the products of petroleum are articles of prime necessity to the people of this state, and that, by reason of said acts and contracts, said defendant company has forfeited its right to transact business in this state; and prays for an injunction prohibiting the defendant company, its agents and employés, from further violating said statute, and for a decree canceling the permit of said company to do business in this state.
"(7) The defendants answer by a general denial of all the allegations of plaintiff's petition, and especially answer that the Waters-Pierce Oil Company is the real defendant in this action, and that the other parties named as defendants are simply its agents in the state of Texas. It further says that the state of Texas is estopped from canceling defendant's permit to do business in this state, because that on July 6, 1889, through its proper officers, and in pursuance of the provisions of the law of this state, it did, for a sufficient and lawful consideration, issue to said company a permit to do business in this state for a term of ten years from that date, and that said permit was a valid and binding contract between it and the state of Texas.
"(8) Defendant further pleads that it is a foreign corporation of the state of Missouri, having its principal office in said state of Missouri, and that the business transacted by it in the state of Texas was interstate commerce, and not subject to the laws of the state of Texas. Defendant denies that it ever became a member of, or a party to, the Standard Oil Trust agreement, or that it acted with said trust, or was controlled by said trust in any way; that said trust was dissolved March 21, 1892. Defendant denies that it ever entered into any of the contracts or agreements with the parties named in plaintiff's petition, for the sale of its oils, and that if any such contracts or agreements were entered into, as set forth in plaintiff's petition, with any one representing the defendant company, either as agent, attorney, employé, servant, or otherwise, the same was never known to the defendant company, nor did it ever sanction or ratify such contract, either directly or indirectly; wherefore they pray that plaintiff take nothing by this suit.
"(9) Upon the law of the case, you are instructed as follows: Under the laws of this state, a `trust' is defined as follows: A trust is a combination of capital, skill, or acts, by two or more persons, firms, corporations, or associations of persons, or either two or more of them, for either, any, or all of the following purposes: First. To create or carry out restrictions in trade or commerce, or aids to commerce, or to create or carry out restrictions in the full and free pursuit of any business authorized or permitted by the laws of this state. Second. To increase or reduce the price of merchandise, produce, or commodities. Third. To prevent competition in manufacture, making, transportation, sale, or purchase of merchandise, produce, or commodities, or to prevent competition in aids to commerce. Fourth. To fix at any standard or figure, whereby its price to the public shall be in any manner controlled or established, any article or commodity or merchandise, produce, or commerce intended for sale, use, or consumption in this state. Fifth. To make or enter into or execute or carry out any contract, obligation, or agreement of any kind or description, by which they shall bind or have bound themselves not to sell, dispose of, or transport any article or commodity or article of trade, use, merchandise, commerce, or consumption below a common standard figure, or by which they shall agree in any manner to keep the price of such article, commodity, or transportation at a fixed or graded figure, or by which they shall in any manner establish or settle the price of any article or commodity or transportation, between them or themselves and others, to preclude a free and unrestricted competition among themselves or others in the sale or transportation of any such article or commodity, or by which they shall agree to pool, combine, or unite any interest they may have in connection with the sale
or transportation of any such article or commodity, that its price might in any manner be affected.
"(10) Now, if you find from the evidence that the defendant company, acting through its duly appointed and authorized agents, entered into...
