*1 directly" safety door and beneáth the zone buttons were that the plaintiff’s probative wife’s fall no evidence force there is Jury stepping on.one hér buttons.. caused verdicts was judgment of a when rest on noth- cannot ing basis be made the suspicion. Irvine, than surmise or Joske v. more mere 1059, 1063; Ins. Jefferson Standard Life Co. Young, App., 1040,1044, refused. Texas Civ. writ finding keep proper Neither will the of failure to lookout plaintiff’s safety support judgment. for the wife That finding only can be related to the conduct of the driver in bus stopping directly safety the bus with door over the zone but- the. which, evidence, nothing tons as we held under the had have moving fall, do plaintiff’s with the or in while bus wife was trying alight jury therefrom which has found did not oc- cur, watching plaintiff’s leaving or in not wife while she was preventing bus which could not have resulted in fall. her judgments Appeals trial court and Court of Civil judgment are reversed and plaintiff here rendered that take nothing. Opinion July delivered 1954. v. L. L. McAninch
Victor Patrizi No. A-4305. Decided June Rehearing July overruled 21, 1954. 343) S.W. 2d Series *2 Vinson, Elkins, Searls, III and F. Weems Ben H. Rice Ben & Houston, Weems, Granes, Dougherty and Joe <6Gr'eenhill Greenhill, Austin, petitioners. R. all of for upon an Since the contract sued is void !(cid:127) attempt impose of a chat on the use unqualified sale, the antitrust tel after an and is in violation of n statutes, legal illegal portion the contract since failing inseparable, Appeals erred the Court of. Civil Brewing Co. v. hold entire contract unenforeible. Texas 277, 27; Templeman, Pac. Coal Co. v. 90 Texas 38 Texas & S.W. Co., Lawson, 394, 871; Segall McCall 108 89 Texas 32 v. S.W. Texas 184
Hart, Sparks, Powell, and William Brown & Wirtz <feRmihut Brown, Austin, respondent. all of (cid:127)A.
' reply Motor Co. v. petitioner’s In cited Ford contentions: State, 'State, 230; Texas S.W. 2d Coca Cola Co. Diaz, Compensation 791; Co. v. Mutual Pioneer 2d 202. opinion Court. delivered Mr. Justice Calvert County Respondent in a court of Travis filed suit district payments against petitioner due under certain to recover respond- whereby the a written contract theretofore entered into making patented petitioner ent a certain machine sold answered, and defended frozen custard. Petitioner ground, among others, was contract between illegal and violation of antitrust stat- void because was in (Arts. seq., Annotated utes of et Vernon’s Civil jury, at Texas). Trial was the court without Statutes trial, judgment entered the court the conclusion was *3 against appeal respondent, petitioner. On favor affirming Appeals judgment trial Court of Civil entered judgment. court’s assigns holding Civil
Petitioner Court of error to the for, Appeals petitioner pay that sued on must ground portion in violation that substantial of the contract laws; of the antitrust not divisible permit legal pro- separation to so as from the signa- entirety, visions. is set out less the The in its paragraph, opinion Appeals. ture in the of Civil the Court designated Party McAninch is as therein as First and Patrizi Party. Second paragraphs pertinent co- to a of this cause are decision
pied printed spaces below. The contract is on form with blank spaces by' underlined dotted lines. These are filled in blank typewriting figures typewritten appear and the over words and exactly copied. the dotted lines as assigns Party hereby Party
“1. That First sells and to Second bearing Zest-O-Mat machine 1003 .... serial number .... agrees Party period (8) years
“2. from That First for a of ten date, any corporation person, not to sell other or lease to firm or Party, any than Second other manner cause to be used in whatsoever, any like described Zest-O-Mat machine in the above territory. Party agrees during agree-
“3. That First of this the term ment, Party Second use in the advertis- shall the name ‘ZESTO’ ing products and sale of manufactured in the above mentioned machine, high Party only uniformly and that Second will use quality ingredients, according approved by formula the! to the agrees
Taylor Corporation. Party Freezer Second use further advertising products the name ‘ZESTO’ in the such sale of during agreement. the term of sale, agrees Party
“4. in consideration of such That Second pay Party $3,000.00 to First sum of ... . .... sum Said order__________with follows:__________cash order, be with _______________ Party upon delivery; thereto, in addition Second agrees gallon Party royalty per to First of 20c of mix during 8-year period from used ________1st 1948___________________-to said Zest-O-Mat machine July, July, 1956, Second 1st ...*** agrees Party royalty paid further in no event shall the following year, machine, year per per than for each $500.00 less its purchase, agrees ten-year period if the monthly royalty any year payments total such do not $500.00 machine, will, Party more on each on Second or before or. following day immediately any year, of the month tenth might Party necessary pay to sum to consti- First whatever minimum tute the annual for each machine. $500.00 agrees (8) years Party period ten “5. That for a Second assign ma- sell, lend, Zest-O-Mat from date not to lease said bearing anyone without serial number .... 1003 .... chine Corpo- Taylor permission Freezer the written or consent of the years agrees (8) Party period further for a of ten Second ration. any use, operated operate from not to or cause to be date bearing serial manner whatsoever said Zest-O-Mat machine than .... .... location other number .... at Beaumont, without city Texas .... 11th Street in the South Corporation. Taylor written consent of Freezer *4 ' agree parties hereby expressly that “12. and Both party public policy, statu- it is the intention of neither to violate including Texas, tory Texas or of common laws of the State any sentence, paragraph, clause or Anti-Trust That if Statute. law combination of the in violation of the Anti-Trust same is any other-Texas, law, paragraphs, or or or Federal clauses such ’ inoperative sentences, and of or combination the same shall be binding upon the remainder of contract shall remain the parties concerning hereto; event, paragraphs any in these binding upon the the cash consideration and parties, shall be obligation Party relieved of the and Second not be shall pro- subsequent royalties herein and as for the machine parties make this con- vided. -If is the intention of all hereto to lawfully binding only may un-" done tráct tó the thát it extent States, existing Texas and the United der the laws of the of State ' ¡i binding upon inure to' the and '“14. This shall be ¿nd ¡successors : assigns Party of the First and Of benefit.
393 assigns administrators, Par- of the Second and heirs, executors ty.” Party agreed territory or lease which not to sell First any person,
any firm or machine to other cor- like Zest-O-Mat agreed Party poration, not to use and outside which Second machine, preamble operate in the was described present City of Beau- contract as “That area within the Limits mont, location is within one-mile radius of the Texas that 11th, patented ma- known as 870-South The Zest-O-Mat is St.” patentee could lease chine use which the control and royalties, he aré for the use of which could exact but the agreed that the contract here was contract of sale and not patentee’s monopoly lease the sale was exhausted longer right and he no had to restrict the resale thereof in vio- lation of our antitrust laws.
We hold the machine to be an article
of merchandise
provisions
paragraphs
2
restrictive
and 5
violativé
agreements
“may
prohibit
of our antitrust
laws which
which
carry
tend to create or
out restrictions in
trade
commerce”
“preclude
among
competition
free
unrestricted
them
transportation
or others in
selves
or
the sale
article
commodity.”
7426,
Article
Vernon’s Annotated Civil Stat
utes;
Smith,
National Automatic Machine Co.
Tex.
v.
App.,
Civ.
678,
history; Burpee
Henry
32
2d
S.W.
no writ
v.
Can Sealer Co.
Co.,
App.,
458,
refused;
McDonnell
Tex. Civ.
2d
S.W.
writ
Rogers Westinghouse
v.
Supply Co.,
App.,
Electric
Tex. Civ.
refused; Fuqua
Brewing
Co.,
writ
Pabst
29;
Law Rev.
Respondent provisions paragraph relies 12 of the contract, above, quoted recovery royalties to authorize spite illegal provisions. paragraph The substance of 12 is illegal provisions even are found in the contract and are therefrom, provided stricken the contract yet payable though just illegal shall had support position never been in it. In pro- their that the remaining visions pro- be stricken and the *5 preserved, respondent visions Harris, thereof cites Nevels v. 129 1046, Texas 102 2d S.W. 109 and A.L.R. Ford Motor State, Co. v. Texas 2d 230. Harris, In Nevels v. suit on a and a note to foreclose deed given
of trust to secure was thereof defended on the ground- provided the note for usurious Under that interest. one contingency note, alone, considered con- the could have been usurious, ap- court said it strued as plication (for but the that “must treat the loan), note, notes, principal and deed
the interest constituting finding contract,” of as one in deed trust the “ being stipulation intention of the trust ‘That the strictly Usury force, any to to in of said conform Laws now subject shall held reduction to contracts interest to be to Usury thé allowed under now or hereafter amount Laws as ” having by jurisdiction,’ that the courts held construed parties, whole, a considered as was not usurious. contract regard language particularly proceeded then we The court as applicable case, “Of course we do to the facts of this and said: person may a from a not mean to hold that exact borrower a terms, then him- contract that is usurious under its relieve pains penalties by an act self of the visited law by writing any merely into the a disclaimer of intention plainly to do which under contract he has done.” his by to Motor Co. v. State was suit State Ford statutory penalties enjoin to of the state’s violations recover question was whether the laws. The this court antitrust before petition held of action. The court stated a cause state’s provisions dealers of Ford’s contract with its while none of the laws, charge petition did course antitrust violated jury question of a violation of such conduct sufficient raise agreement by provisions an of the contract One was laws. prices products Ford’s “ at less than the retail the dealer to sell the dealer to Ford ‘in so far lawful for established ” ** agree 233.) It was held *.’ so agreement prices an to sell at fixed that this did not constitute violation of the antitrust laws. cited cases it was held that
It will be noted that in each illegality language any permit did not very face instant contract. On the enter the Not so here. paragraph vital 2 and 5 were contract the sought paragraph them make It is true thereof. illegal, then the same inoperative were but even held to might sought paragraph accrue to retain benefits royalties were, part, Party con- First if it were held that the illegal provisions, will a matter which we sideration for the may parts party If eliminate next devote our attention. thus inducing an been vital which well have retaining party, while for its other cause execution *6 right parts, eliminated to enforce the for the the consideration symbol of dead era. a hollow laws will become the antitrust properly respondent argues royalties that the are severa But the of contract because from the ble price Mhg only part purchase plain of of the machine. The the uage of him. the contract contradicts
By paragraph respondent petitioner, sold to the machine opening language paragraph and the sentence of in states sale, Party plain and clear “That in consideration of such Second agrees Party pay $3,000.00.” to to the First sum of There the ends; period. sentence it is ended with a is all of the con- That say for the con- sideration sale of the machine. It does not that in party agrees pay $3,000.00 and pay sideration such sale second to royalties; says agrees just party that certain $3,000.00 second prepared printed
for the machine. form is so then fill in their how “said the as to sum” (the machine) paid, consideration sale for the is to be order, partly all in whether cash with cash with the or- delivery. partly upon Here, der the contract was filled in all show that of the consideration for the machine was with cash the order. There then follows that “in ad- agrees Party pay gallon Party per dition” Second 20c First eight “royalty” period years, payment for a with minimum years. each of the “In addition” to what? The con- $500.00 says royalty payment tract is “in addition” to the “considera- of such tion sale” which is recited to be cash with “$3000.00 language very From order.” of these two sentences it would parties expressed clear seem the intention $3,000.00 cash should be the entire consideration for clearly, the sale That such machine. was their intention is again expressed very plain language paragraph in the they provided any event, paragraphs wherein “that these con- cerning binding cash consideration and shall parties, Party obliga- Second shall not relieved of royalties subsequent tion for the machine as herein provided.”
In our view there is no need for the use of rules of construc- tion to parties, arrive at intention of the but we were adopt respondent view of that the were a the consideration for the sale would lead to machine it rather unusual result would 'to the same machine be sold party, selling one product but requir- little therefore ing mix, the use of but price $7,000.00, little for the minimum selling large product
whereas to one amount of the and there- requiring of, 5,000 gallons say, fore the use let per us mix of. year, price the sale $11,000.00. machine would be *7 agree- If the machine itself was not the of consideration the pay royalties, only agree- ment to then the consideration for such right given ment was the graph to use the para- trade-name “Zesto” agreement respondent of the contract and the not to sell or lease territory. like machine in the restricted These are only undertakings respondent the of the found in contract. the Respondent suggests, therefore, paragraph function the royalty payments is to allocate the as consideration for the right trade-name, legal provision to use contract, the rather illegal than as territory, consideration for restricted an provision. Respondent illegal concedes in his brief that “if provision part contract and the of the consideration petitioner’s promise for pay ‘royalties,’ illegality then the part of illegal.” the consideration rendered the entire contract opinion only
It is our that under the reasonable construction provisions contract, of all royalty payments illegal paragraphs the interdependent restrictions contained in 2 and 5 are so separated indivisible that cannot be together. and must fall
The record shows that there was no secret formula for mak- ing “Zesto”; applied powdered that it was but trade-name to a making custard, anyone mix used in a frozen available to buy hand, obtaining by who cared territory it. On the other a restricted leased, peti- in which no like machine could sold be competition. prepared tioner freed himself of all are not We say agreed petitioner pay royalties would have for illegal provisions use trade-name if for a restricted territory Walker, (5th had been eliminated. Motor Kissel Co. v. Cir.); noting 270 Fed. 24 A.L.R. It is worth agreement respondent not to sell or lease a like machine territory eight years, the restricted was to continue for agreement petitioner sell, lend, assign par- not to lease or operate ticular machine or to it outside of the restricted terri- tory eight years, was to continue eight years. was to continue for
Having reached the conclusion payments insepara and the indivisible ble, oft-repeated we are a prom- confronted “That with the rule: unlawful, considerations, one of which is upon several ise made illegality at common law or stat whether no matter Jennings, County 89 Texas 35 S.W. ute, v. Edwards is void.” Land, Raleigh 115 Texas 1053, 1054; T. Co. v. W. Wegner Bros. the court may say here as was said 810. We 506, 509, Biering Co., 512: & sup- ample consideration to valid that there is “It is obvious if, on; yet, of valid con- to the abundance port promise sued illegal, sideration, added a leaven what there has been is tainted. whole “* * * enforced, not the law will whole cannot be because The separated. parts prohibits, can not compel and the what Illegality the entire instrument. thus vitiates “* * * purpose to discountenance and discour- of the law is adopted age contracts; improper to enforce them is *8 disregard end, adopted the in total means to and is best this upon parties prohibited the to the transaction.” effect judgments judg- are reversed and The of both courts below nothing. plaintiff rendered take ment is here Opinion delivered June sitting. Smedley
Associate Justice not concurring.
Mr. Justice Wilson opinion majority Ford Motor Co. The is based in State, 5, 175 is v. 142 Texas 230. Art. V.|A.C.S., ambiguous duty apply is and needs no Our not construction. the statute. containing holding clauses
The here is that a contract some containing “saving violating the antitrust laws and also parties intend to violate antitrust clause” that the do not the enforcible, “absolutely laws is not void” and therefore “not contrary portions equity,” violat- either in law or but on the ing may remainder of the the antitrust laws be stricken holding my opinion, if In this contract enforced severable. contrary 7437, V.A.C.S., Art. which is: any provision
“Any in violation of absolutely and not either void enforcible subdivision shall be equity.” in law or Legislature clearly
Through attempted Art. 7437 the to im- purpose aiding pose sanction in the enforce- civil illegality penalty antitrust laws ment contractual parties neatly unenforceability. may sidestep The contractual making violating Art. the antitrust laws party it is the “intention of neither statement to violate * * * self-serving Antitrust Of Statute.” course his intent is not a correct statement of fact. The statement about wording specific parties intended to knew the the contract and very they particular use the did If a words use. combination violation, they words an intended violate constitutes antitrust very person In act he the antitrust law. law intends do the although spe- fully does do he understand or desire not legal consequences cific follow acts. in the case of which his So Raleigh Land, T. Co. W.
court said:
“* * * meaning course, except proviso, of as a is without self-serving prima of intent whose facie evidential declaration * * * against value, wholly destroyed (or any, rather turned appears parties) purpose a bad execution of if in fact * *”* agreement. give
I no effect at the statement would all to fact if what did to violate law does had no intent law. violate the suit declare contract void and
The Ford case was *9 attempted Art. one to invoke under no unenforceable voiding Perhaps contract. is the the Ford civil sanctions not either or in that case did mention discuss reason Court 7437. Art. consistency prohibits that the same contract
It penal- subject penalties not criminal to civil but to held should directly not in the Ford case did construe ties. the Court Since bar, at apply as we must in the case we should dis- or Art. directly regard it conflicts paragraph 12 of the contract because a of the Ford case a and reserve reconsideration with statute again penalty squarely presented in suit. point is until Opinion delivered June dissenting. Garwood, joined by Griffin, Justice
Mr. Justice agree opinion majority with the myself unable I find which provisions sale contract (1) it wherein holds from and divisible not statutes are severable antitrust violate the obligation legal and valid legal provisions as to leave so provided for, royalties (2) royalties sued paid for the machine. purchase price to be not a $3,000.00 Paragraph provision 4 for the for, royalties provided does “and in addition thereto” the cash price. being part purchase It is prevent the says land which the considera- than a deed to a tract of no more cash, certain $3,000.00 and in addition thereto for the tion sale paid follows” “said lien notes. The words sum be vendor’s paid amount of to the in no manner limit the consideration to be clearly only means the amount of cash to be cash. paid, sum” “Said period fact that a follows not the total consideration. The $3,000.00” have no more effect the words “the sum could comma, determining semi- the consideration than if it had been 300, Contractsi, punctuation colon or other mark. 10 Tex. Jur. paragraph it Sec. 174. the whole is considered When very apparent to me that consideration to be states Assuming, deciding same, the machine. that other without provisions statutes, of the contract violate antitrust legal question provisions then arises as to whether the illegal provisions or contract are divisible severable from the so binding legal valid, that a contract was made which can be without resort to the other enforced 141; Id., seq., Contracts, the contract. Tex. Jur. et Sec. 182; Contracts, 254; Corbin, Sec. 27 Texas Law Rev. On Sec. 1520. elementary requires
It is no citation of authorities proposition the ty, entire- that the contract be construed in its must given Paragraph provides provisions.
and effect all its statutory party public policy, or neither intends violate common laws Then there is or the Anti-Trust Statutes. any part that if combination the contract including parts law, law, is in violation of Federal Act, parts, parts, Anti-Trust shall be or combinations of inoperative, and shall continue to the remainder of the contract binding Party parties, must be pay that Second states *10 machine,
for as is both cash consideration provided Paragraph 4.) (Paragraph in the contract. Does mean says, what no force provision it unlawful of and effect? Comves, In al, 532, the case Wicks et 110 Texas Wicks, al, specific performance Comves sued et for contract, damages
a lease or for of such breach contract. The provided space a contract Wicks leased to Comves for fruit City stand on specified the sidewalk in Houston at a month- ly provided rental. The City further if com- plained sidewalk, city of such fruit stand on the or if a there was making ordinance “now or hereafter in force” a fruit stand on illegal, agreed the sidewalk then to furnish Wicks Comves space building, same amount of inside Wicks.’ which was at the location, Wicks, same for his fruit stand. et al defended the suit ground upon illegal that the contract was and void because leasing space sidewalk, provision on the and that for the provision. inside lease was inseverable from the sidewalk lease city prohibiting occupation any city There awas ordinance purposes sidewalk for mercantile at the time the execution of Judge question, Greenwood, speaking the contract. On certified Court, for this held the lease was from inside severable the side- “* ** lease, parties walk and stated: we think made have purpose entirely plain grant, any, their that the failure of the of the use of the stands and fixtures on the sidewalk was not grant, agreed rental, space. (Only affect the for the of the inside charge provided contract, rental one was and was stated lease.) parties, in connection with plainly more the sidewalk How can obligations by stipulating a direct severance of than performed, consideration, separate one shall be for a 535) col., S.W., p. failure of another?” 2nd. applicable provi- The Court discusses the law valid severable illegal contract, sions contained with in the same part space valid, holds that of the lease contract for the inside binding and enforceable. In the under consideration cause, specific provision pay- have made as machine, any part ment of the contract event should be held and void. Nevels, Harris,
In the case of et al v. 129 Texas Nevels, 109 A.L.R. al recover Harris sued et given on a note and to foreclose deed real of trust on estate security usury, for the note. The defense was in that coupon represented by the interest on the main interest debt was dates, notes with definite due and deed of and also these notes trust contained a if default were to the effect obligation, immediately made in the all notes option Also, money became due at the sum holder. original was deducted from amount of loan agent Harris, borrower, Nevels, broker did not re- so that *11 money principal face out in the of the set the amount ceive conditions, permitted this Harris to collect certain note. Under money per annum on the interest amount than more 10% proceeds actually from the loan. case paid Nevels as The over to Co., Farm 120 Texas Shropshire Credit v. Commerce held 2d 84 A.L.R. had contracts defining usury. of However, nature in violation of the statutes this in contained this deed of trust Nevels case the the “ being parties provision: ‘That the intention further Usury force, any strictly in to the Laws now said conform subject for interest shall held to be to reduction to contracts be Usury hereafter under Laws as now or amount allowed said ” having jurisdiction.’ 197.) by the construed courts affirming col., 2d, p. judgments 1049. In Bot. 2nd. discussing below, quoted courts the clause last above this Court said: parts given
“It all is the rule that contract must be effect reasonably possible if it is to do so. It also the rule that is men presumed obey intended have the law unless the con- trary appears. carefully very In the contract at bar the lender provided for the cancellation of unearned interest notes should maturity provisions the default be exercised. contract be parties usury were not even content to rest the matter of They provision there. added quoted. provi- If last above only coupons sion has effect to cancel unearned interest from the maturity provisions date the default of the contract are exer- noteholder, stipulation, cised it is vain and an idle already guarded carefully reason that that matter had been quoted other of this contract which we have given and, effect, discussed. If this last can be already given said, reasonably pos- must some effect if it is so, operate deny sible to do it must be held to the noteholder right, event, usury. words, in to collect In other it denies right principal noteholder the to collect more than the debt cent, per per and 10 interest annum from time the borrower money repay plain had the use of the until he should it. This expressly because this clause of the contract states that it strictly usury intention of the to conform to the laws force, ‘any now said contracts for interest shall subject held to be to reduction to the amount allowed under laws,’ usury said etc.” principle
I can see no distinction in between the so-called “saving usury bar, except clause” in case and case at specifically case
the clause at bar liability reiterates the petitioner for the cash consideration and to be machine, any part in the purchase the Zest-O-Mat event violate the contract should Anti-Trust or other laws. *12 State, 5, of Ford
In the case Motor Co. v. 142 Texas 231, Ford 2d the State sued for violation of the Anti-Trust laws allegations on of Texas the contract which Ford had with Texas was its dealers in void. The trial court sustained exceptions petition, to the State’s Ford’s and the cause was dis- appeal, Appeals On Court Civil missed. reversed and re- affirming judgment for a trial merits. In manded Appeals, this the Court of Civil Court said: 233) 2d agrees merely thing “A which contract do certain ‘in so * * *’ agree lawful for the dealer far as it is to so on its face agreement thing mentioned, no to do the constitutes if it un- is Harris, so. to do Nevels lawful A.L.R. 1464.” pertinent says: to this cause the Court further
As (b) alleged “The contends that Section 9 State this contract laws, obligates our on its face violates anti-trust because it Ford products sell Ford prices Dealers not to at less than retail estab- by city Ford for the lished dealer’s or town from time to time. ‘(b) This section of contract reads as follows: Insofar agree, Company lawful for Dealer so to products to resell bearing Company’s trademark or trade name at less than retail city prices established for Dealer’s or town from time to time by Company, except goods in cases where such have been dam- aged, obsolete, or have obsolete, become or are about to become change models, in Company because of or in the case of sales to Dealers, nominees or its or to other authorized Ford or Associ- Dealers, except ate Ford when discount is warranted purchases quantity discount unless such a inis violation of law. agrees, requested by Company, display Dealer prominently showing in Dealer’s showroom a chart current minimum retail prices by Company City as established for Dealer’s or Town.’ already “Under the rule of law announced opinion, in this this provision, face, contract on its does not violate our anti-trust only obligates laws. It the dealer if it is lawful for him to be obligated. unlawful, obligation If it is no is assumed. If no ob- ligation assumed, no violation of law is contracted for.” upholds provisions discusses and also Court accounting business, place methods and supervision business, comparably provi- somewhat the dealer’s conduct of under discussion. sions in the
Respondent that under of Art. contends Statutes, “any contract or Annotated Civil Vernon’s abso- in violation of lutely this subdivision shall be equity.” either in law or and not enforcible This stat- void all three of the ute the same when cases above cited were was wording Also, Usury (Art. 5071, decided. Statute Ver- Statutes) which was in effect non’s Annotated when the Civil “* * * case, supra, Court, is, part: was decided this Nevels whatsoever, any way, and all written contracts which greater directly indirectly, provide (than rate of interest legal for the amount 10%) rate of shall void and of no effect * * only In the face of value of interest this statute Court, case, approved the Nevels collection all in- *13 legal bar, terest rate. In case at not above we a have legal provision payment purchase price valid and as separate paragraph for Zest-O-Mat in a machine contained being violating Act, severable, the Anti-Trust and those so may be enforced. authorities, Paragraph
In view of the above I believe valid, binding part is a severable the contract for the purchase of the machine hereto. between the holding payment
Petitioner cites no case that a of part purchase price for the machine un- lawful, any he make I do nor does such contention. not believe agree purchase it of law to is violation machine down-payment, making a cash and to out the at an balance figure per produced agreed manufactured in ma- unit time. effect of definite This is the the consideration chine for a Paragraph 4, guaran- paid of a agreed with the addition to be year 8-year payment per definite minimum $500.00 teed royalty provisions violate contends period. Petitioner attempt an to exercise statute antitrust bought paid for, been the machine after has over control constituting a servitude restraint the use thus the contract. As I do not so construe of the machine. alienation “royalty” above, is a I have said machine, purchase price to be for the constitutes obligation Party. No on personal lien the machine the Second reserved, attempted nor be reserved Party. First First Party admits that the passed title the machine to the Second Party purchaser. I judgments
It follows that would affirm the of both courts below.
Opinion delivered June 1954.
Rehearing July 21, overruled 1954. Lloyds Loper
Lumbermen’s v. Cora and Cecil No. A-4579. Decided June 1954. Rehearing July 21, overruled 367) Series