Wheatley v. Kollaer

• Decision Date: 31 December 1910
• Citation: Wheatley v. Kollaer, 133 S.W. 903, 63 Tex.Civ.App. 459 (Tex. App. 1910)
• Parties: WHEATLEY et al. v. KOLLAER.
• Court: Texas Court of Appeals

133 S.W. 903

WHEATLEY et al. v. KOLLAER.

Court of Civil Appeals of Texas.

December 31, 1910.

Appeal from Potter County Court; M. J. R. Jackson, Special Judge.

Action by John Kollaer against R. R. Wheatley and another. Judgment for plaintiff and defendants appeal. Affirmed.

Barrett, Jones & Yeates, for appellants. Cooper & Stanford, for appellee.

CONNER, C. J.

Appellee instituted this suit in the county court against R. R. Wheatley and W. G. Lanier for the sum of $375 alleged to be due upon a certain rental contract set out in the petition. Appellants pleaded in defense that the rental contract upon which the suit was based was prohibited by the anti-trust law, and, further, that possession of the leased premises had never been delivered to them. The trial resulted in a verdict and judgment in appellee's favor for the sum of $275.

We will first address ourselves to a determination of the validity of the contract. It was executed by appellee and the appellants on the 29th day of July, 1908, at Amarillo, Tex. Thereby appellee agreed to lease to appellants "for the period of one year commencing the first day of September, 1908, Lot 10, Block 1, of the Holland Addition to the City of Amarillo, known as the `Stag Saloon,'" for which appellants agreed to pay in advance the sum of $75 per month during the life of the lease, the first payment to be made September 1, 1908, and on the first of each successive month thereafter. The lease, together with other stipulations not necessary to notice, further specially provides: "It is furthermore expressly agreed that the party of the first part shall not lease, rent, or let any property or premises which he may own on said First street to any party or parties or corporation for the sale of intoxicating or nonintoxicating malt liquors, and the party of the first part hereby binds himself in the sum of the amount of the rentals herein agreed to be paid to prohibit the sale of all such drinks as Uno; Ino; Frosty; Tin-top; Tee-totle and all other brewery products in any building or on any premises which he may own on said first street, and should such conditions be reached and such sales be permitted then it is agreed that the annual lease value of this contract shall be forfeited to the parties of the second part as liquidated damages."

Appellants' contention is to the effect that the provision quoted evidences a combination between the parties to the instrument to carry out restrictions and lessen competition in the sale and purchase of commodities violative of our anti-trust statutes, and that hence the court committed error in instructing the jury, as he did, that the contract was valid. The act of the Legislature relied upon (Gen. Laws Tex. 1903, p. 119), so far as here pertinent, forbids "a combination of capital, skill or acts" by two or more persons for either of the following purposes: "(1) To create or which may tend to create or carry out restrictions in trade or commerce or aids to commerce or in the preparation of any product for market or transportation, or to create or carry out restrictions in the free pursuit of any business authorized or permitted by the laws of this state. * * * (3) To prevent or lessen competition in the manufacture, making, transportation, sale or purchase of merchandise, produce or commodities, or the business of insurance, or to prevent or lessen competition in aids to commerce, or in the preparation of any product for market or transportation." We have concluded that in no true sense can it be said that the designated provision of the contract constitutes a combination of capital or skill between appellee and the appellants within the meaning of the anti-trust act from which we have quoted. For a stated rental appellants became the purchasers of a leasehold estate in the premises described in the lease, and during its continuance they were as truly entitled to the exclusive use and possession of the premises as if they had purchased the fee-simple title. The lease provided for no right of control on appellee's part, for no participation by appellee in the profits or losses of the business to be conducted in the leased premises, or for a combination of any kind other than such as may lawfully occur between any vendor and vendee of an estate in land. In these particulars the case is distinguishable from that of the T. & P. Coal Co. v. Lawson, 89 Tex. 394, 32 S. W. 871, 34 S. W. 919, and other similar cases cited by appellants. Such transactions we cannot think fall within the inhibitory features of the anti-trust act under consideration. In no proper sense does the contract tend to "create or carry out restrictions in trade" or "in the free pursuit of any business authorized or permitted by the laws of this state" or "prevent or lessen competition in * * * the...