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payment for the beer already supplied, and to recover damages because more beer is not furnished.

Opinion.

The combination is in violation of the anti-trust law; and plaintiff's agreeing to sell beer to no one else in El Paso shows that the contract between the plaintiff and the combination is intended to aid the illegal object of the combination, and is, therefore, void.

Plaintiff recovers nothing for the beer.

The combination recovers nothing for the breach of contract.

89 Texas, 394. Statement.

Texas and Pacific Coal Co. v. Lawson.

March 26, 1896.

The coal company, which was operating the coal mining business upon its large tract of land and having many employees residing thereon, made a contract with Lawson, leasing him for five years premises on which to carry on the business of selling liquor. It agreed to lease to no other person for the same purpose and to permit no one else to carry on said business upon its land; also to issue time checks to its employees, which checks were to be redeemed weekly when taken up by Lawson. The company was to receive as rent two-thirds of the profits of the saloon business. A question arises as to whether or not the contract is legal. Opinion.

"The statute ignores the common-law distinction between restrictions which are reasonable and those which are not, and commodities which are of prime necessity and those which are not." The contract provided that the parties should associate both their capital and acts to prevent competition in the trade of retailing spirituous liquors. Under the statute, the contract is void.

Welch et al., v. Phelps and Bigelow Windmill Co. 36 S. W. Rep., 71.

Statement.

June 8, 1896.

Plaintiff and defendant entered into an agreement whereby plaintiff was to sell windmills for defendant, for a certain price, in a certain territory, and to sell no other windmills.

Defendant was to allow no one else to sell windmills in that territory, to have title to the windmills while in plaintiff's possession and to ship mills to plaintiff as he needed them. Was this contract within the trust law?

Opinion.

The statute was to prohibit two or more persons from combining their skill or their capital or their acts. The defendant here owned all these windmills, so there was no union of "capital, skill or acts." "It was not the purpose of the statute to interpose any obstacle to a principal's contracting with his agent with reference either to the terms or the subject-matter of the agency."

The contract is legal.

Hathaway v. The State.

36 Texas Cr. Rep., 261.

Statement.

June 26, 1896.

Plaintiff was an agent of the Waters-Pierce Oil Company, and this company was connected with the Standard Oil Trust; but there was no proof that plaintiff knew of this combination. He was convicted of the crime of conspiracy against trade, and fined $50. He appeals.

Opinion.

The anti-trust law has been held constitutional by the Supreme Court in several cases, therefore, it will now be assumed that it is constitutional; but to convict one under this law it must be proved that he had knowledge of the conspiracy when he aided it.

The judgment of conviction is reversed.

Texas Brewing Co. v. Templeman et al.

38 S. W. Rep., 27.

Statement.

December 3, 1896.

The Texas Brewing Company agreed to sell beer to W. N. Norwood & Co. and to furnish a delivery wagon and a storage vault, the last two to remain the property of the brewing company. In turn W. N. Norwood & Co. agreed to furnish a place for the vault, to pay for the beer sold them in thirty days from shipment, and to handle no other beer than that of the Texas Brewing Company. The Texas Brewing Company brings this suit to recover a balance due it for the beer sold.

Opinion.

The contract is to carry out restrictions in trade, and to prevent competition in the sale of commodities, and is a trust contract.

Plaintiff can not recover the balance due for the beer.

Fuqua et al. v. Pabst Brewing Co.

38 S. W. Rep., 29. Statement.

December 14, 1896.

The Pabst Brewing Company, of Wisconsin, and Kingsbury, of Texas, agreed that said company should sell beer in Amarillo, Tex., only to Kingsbury; and that Kingsbury should buy beer only of said company. Kingsbury owes $1,164.48 for beer furnished him under this agreement. The company brings suit to collect it. Illegality of the contract is pleaded in defense.

Opinion.

Shipping an article into the state and selling it in the original package is interstate commerce. Therefore, a contract for only that can not be affected by the state anti-trust law. However, in the case at bar there is this legal part plus an illegal part; namely, that Kingsbury is to buy beer of no one but the Pabst Brewing Company, and that said company is to sell beer to no one in Amarillo except Kingsbury. In this contract some of the stipulations "being lawful and the others unlawful, the taint of illegality affects and destroys the whole."

Plaintiff can not recover.

Waters-Pierce Oil Co. v. State.

March 9, 1898.

44 S. W. Rep., 936. Statute construed.

The Texas Laws of 1895, chapter 83, makes all trusts and combinations in restraint of trade criminal. It provides, however, that the act shall not be held to apply to live stock and agricultural products in the hands of the producer or raiser, nor shall it be understood or construed to prevent the organization of laborers for the purpose of maintaining any standard of wages.

The act provides that every foreign corporation violating this law shall be prohibited from doing business in the state.

Statement.

Plaintiff, a foreign corporation, had been given permission to do business in Texas for ten years. While doing business under this permit it violated the anti-trust law by making contracts with various dealers in oils whereby they agreed to buy and sell plaintiff's oils exclusively, and not to sell any oil to a person buying of another corporation, and for this reason the court enjoined it from doing any more business in the state, except interstate commerce. Plaintiff appeals claiming the law is unconstitutional on two grounds:

1. It deprives the owner of his property without due process of law.

2. It discriminates between persons without cause, and therefore falls within the prohibition of the fourteenth amendment where it says: "Nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."

Opinion.

1. To prohibit combinations in restraint of trade, is within the police power of the state, and the fourteenth amendment is not meant to limit the proper exercise of this power.

2. The welfare of the state was in danger from combinations in restraint of trade; but certain classes of such combinations were not endangering the public welfare, and it was constitutional for such to be exempted from the operation of the law.

The injunction stands prohibiting plaintiff from doing business, other than interstate commerce, in the state of Texas.

47 S. W. Rep., 637. Statement.

Wiggins v. Bisso.

October 31, 1898.

Wiggins and Bisso entered into partnership for the purpose of forming a combination with the St. Louis Brewing Association to increase the price of beer and to prevent competition in the transportation and sale of beer. Wiggins received all the profits of the partnership to the amount of $7,980, and refuses to pay Bisso his share. Bisso sues for an accounting.

Opinion.

The court can not give an accounting without investigating unlawful acts of the parties, and this it will not do. It will leave the parties where it found them.

The accounting is denied.

San Antonio Gas Co. v. State.

54 S. W. Rep., 289.

Statement.

Circuit Court of Appeals of Texas.
November 1, 1899.

All the electric railways, electric light and gas companies in San Antonio, Tex., agreed to charge certain car fare, and not to compete with each other and to consolidate after they had obtained from the city an extension of all their franchises until 1940. The franchises were extended, and other acts done pursuant to the agreement. The State brought an action against the San Antonio Gas Company, a party to the said agreement, to forfeit its charter. Judgment for the State in the lower court, and plaintiff appeals.

Opinion on appeal.

A trust is defined in the statutes as "a combination of capital, skill, or acts by two or more persons, firms or corporations" for purposes enumerated, one being "to increase or reduce the price of merchandise, produce or commodities. "If the combination was made, and its object was in restraint of trade and to create a monopoly, the statute denounces it no matter if the immediate result of the combination may be the temporary reduction of prices. To fix, by combination, a rate lower than one that has prevailed, carries with it the power and ability to establish higher ones, and the object of the statute is to free business and commerce from being controlled by combinations. * The law does not look to the results. It is settled that the trust legislation is constitutional; and a conspiracy was formed within its terms; therefore, the lower court did right in forfeiting the charter.

*

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