Woods v. American Brewing Ass'n

• Decision Date: 20 January 1916
• Docket Number: (No. 57.)
• Citation: 183 S.W. 127
• Parties: WOODS v. AMERICAN BREWING ASS'N.
• Court: Texas Court of Appeals

183 S.W. 127

WOODS v. AMERICAN BREWING ASS'N.

(No. 57.)

Court of Civil Appeals of Texas. Beaumont.

January 20, 1916.

Rehearing Denied February 10, 1916.

Appeal from District Court, Orange County; A. E. Davis, Judge.

Action by W. C. Woods against the American Brewing Association. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Holland & Holland, of Orange, for appellant. Fisher, Campbell & Amerman, of Houston, for appellee.

BROOKE, J.

This is an action for damages for breach of contract brought by appellant against appellee, and the cause has been properly appealed.

Plaintiff's cause of action, as stated in his petition, is as follows:

Plaintiff is a private citizen, residing in Orange county, Tex. Defendant is a corporation incorporated under the laws of Texas, its principal office and place of business being at Houston, Harris county, Tex.

"That heretofore, to wit, on or about March 28, 1908, the defendant was engaged in the business of manufacturing beer in Houston, Harris county, Tex., and as a part of its said business, and for the purpose of conducting and carrying on profitably its said business, it maintained an agency for the sale of its product at Orange, in Orange county, Tex.; that at said time it made the sales of its product in Orange county, Tex., through its said agent in Orange county, Tex., and for said purpose it had at said place an agent, through whom it conducted its business; that in the conduct of its business at said place, it consigned to its said agent at a certain price, the agent in turn selling said product to dealers at a profit remunerative to said agent, and justifying said agent to engage in said business; that defendant during said time made no sales of its product in Orange county, Tex., except through its duly authorized agent, as hereinbefore shown, and it consigned no portion of its product direct to the consumer, and all sales of its product in Orange county entitled said agent, by virtue of the arrangement between them to a certain profit; that on or about said date the agent of the defendant company, being in arrears with it, to the extent of approximately the sum of $2,400, and being indebted to it in approximately said sum, which indebtedness had extended over a considerable period of time, and the business of defendant suffered on account thereof, and it faced on account thereof financial loss, approached this plaintiff, and made with him the following verbal agreement, to wit:

"If plaintiff would accept the agency of the sale of defendant's products in Orange county in such manner as to represent the interests of the defendant company, said agent purchasing direct the product of the defendant from the defendant company and making sales thereof himself to the dealers in Orange county, said product to be invoiced to plaintiff by the defendant company at a price then and there agreed upon, and to be sold by the plaintiff to the dealers thereof at a profit, and would pay to the defendant company for such business and agency said amount owing to it by its former agent or its then agent, and amounting approximately to the sum of $2,400, that the defendant company would execute a contract with the plaintiff for the conduct by him of their business in Orange, Tex., and appoint plaintiff its exclusive agent at said place, and would continue permanently to sell him and no other person, except through him, goods of its manufacture or its product, thereby entitling plaintiff to the profits arising from the sale of said product, so long as the defendant conducted its business in Orange, Texas, or held or kept an agent at said place, all of which was consented to and agreed upon by the plaintiff, and said contract between the parties became mutual and binding, and plaintiff in good faith entered upon the duties of said business and agency.

"That under said agreement and agency plaintiff conducted said business of the defendant company and handled its product in Orange, Texas, for a considerable period of time, both parties recognizing said contract as valid and binding, and as permanent, and as to continue in force so long as the defendant company maintained its said business or agency in said place; that after the conduct of said business by the plaintiff to a period when plaintiff had repaid to the defendant company said full sum of money owing to it, by its former agent, and assumed by plaintiff, and amounting to approximately the sum of $2,400, and on, to wit, about May 1, 1914, the defendant company, ignoring its contract, terminated said business and agency with plaintiff and immediately commenced the sale of its products, through other persons than the plaintiff, and thereby willfully, knowingly, and arbitrarily destroyed the business of plaintiff, which, through a considerable period of time he had built up and from which, through his exertions, he had earned a sufficient amount to make the defendant whole, and pay to the defendant company the sum of money owing to it by its former agent; that the business of plaintiff and the agency established by the contract hereinbefore referred to was valuable, and was reasonably worth on the market the sum of $10,000, and by the arbitrary acts of the defendant company in destroying said business, and annulling said agency, this plaintiff was without fault on his part deprived of the value thereof, to his damage in said sum of $10,000; that the payment of the $2,400 hereinbefore referred to by the plaintiff to the defendant was obtained by the defendant from plaintiff upon a fraudulent, false, and wrongful agreement that it would maintain permanently so long as it was in business, a local business at Orange with plaintiff as its agent, for the sale of its products, and would through no other channels sell the same at Orange in Orange county, Tex., and upon such agreement said sum of money was so paid by plaintiff to defendant, and the defendant having breached said agreement and violated the same, thereby obtained said sum of money from plaintiff fraudulently and without warrant in law, and is entitled to repay the same to plaintiff, with legal interest thereon, and thereby has damaged plaintiff in said additional sum of $2,400, with legal interest thereon from the date of its payment."

Defendant company filed its plea of privilege to be sued in the county of its residence, filed general and special demurrers and general denial, and further set up that the contract, as alleged, was within and contrary to the statute of frauds, and further alleged that the contract was not for any definite period of time, and was a contract which the defendant had a legal right to terminate at any time, and further alleged in said answer that if it was shown that the defendant company made any contract with plaintiff, that said contract did not provide that the defendant should sell its product in the city of Orange or Orange county exclusively, with the plaintiff, and with no one else during the continuation of said contract, and that therefore this defendant had a right at any time to sell its products to any other person or persons within the city of Orange, without liability to the plaintiff.

For further answer the defendant company alleged by its pleadings that if it was shown that any contract was made between it and the plaintiff, that it was necessarily contemplated and implied by said contract that the plaintiff use reasonable diligence in attending to his business and in supplying the produce of defendant to those who were in the habit of purchasing, using, and selling such products, but the defendant company says that the plaintiff negligently and willfully failed and refused to attend to his said business, and to use diligence and care in looking after the same, and failed and refused to order and pay for and receive from the railroad company and deliver the product of this defendant to those who desired to purchase the same, and gave orders to plaintiff for the purchase thereof, to the extent that often for several days at a time those persons desiring to purchase were not able to obtain the product of this defendant in using and selling to their customers, greatly to the damage of the defendant company, and by reason of the failure of the plaintiff to use care and diligence, and attention to his said business in selling and delivery of the goods and products of the defendant, and in ordering said goods from the defendant, he breached and violated the terms and provisions of any contract it may be shown he had with the defendant; therefore defendant was compelled to sell and was justified in selling its product to other persons within the city of Orange and Orange county.

The court, after instructing the jury to find a verdict for the defendant, approved and ordered filed plaintiff's bill of exceptions, as follows, with the following qualification:

"Be it remembered that upon the trial of the above-entitled cause, and after the plaintiff had rested in said trial, the defendant moved the court, by written motion, to instruct the jury to return a verdict in favor of the defendant, which said motion was resisted and objected to by the plaintiff, but the court overruled plaintiff's objection, and sustained said motion, upon the grounds urged and presented to the court that said contract, as pleaded and proven, was in violation of the anti-trust laws of the state of Texas, and for that reason unenforceable and void, and upon said ground instructed the jury by a written instruction, to return a verdict in favor of the defendant, which instruction was read by the jury, and a verdict in favor of the defendant, in obedience thereto was returned, to which plaintiff at the time in open court excepted, and now here tenders this, its bill of exception, and prays that the same be allowed and ordered filed, which is accordingly done.

                             "Holland & Holland
                                "Attorneys for

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