This is a suit in behalf of the State of Texas, brought by the county attorney of McLennan County to recover the penalty provided by statute for the violation of the anti-trust law of 1903. There were originally two suits, one alleging a contract of July 30, 1904, in violation of said statute, and one of December 19, 1904, to the same effect. Said suits were consolidated and tried as one. The appellant filed two trial amendments, after which the court sustained a general demurrer to the petition, and the appellant declining further to amend, judgment was rendered for the appellee, from which judgment this appeal is prosecuted. Such being the case, the issue is, did the petition, when taken together with the trial amendments, state a cause of action as against a general demurrer?
The petition, as amended, contained, substantially, the following allegations:
1. The authority of the county attorney to institute and prosecute this suit.
2. That the appellee, which will hereafter be referred to as the Racine Co., at the times the contracts, subsequently alleged, were made, and prior thereto, was engaged in the business of selling at wholesale in the State of Texas, including Waco, Texas, farming implements, buggies, etc. It was also alleged that said Racine Co. was a manufacturer of such articles, and had a permit to do business in Texas and had an office at Dallas, Texas.
3. That at said dates and prior thereto, the Bomar Hardware and Buggy Company, which will hereafter be referred to as the Waco Company, was engaged in the hardware and implement business at Waco, Texas, selling articles of the kinds referred to in said contracts to the people of that city and vicinity, where there was a market for such articles, and where many citizens were engaged in the sale and purchase of such articles. That the Racine Company and the Waco Company, on July 30, 1904, entered into a contract whereby the Racine Company sold to the Waco Company certain farm implements, etc., and agreed to sell to said Waco Company thereafter as ordered, such implements *666 as shown by their catalogue made a part of said contract, at the prices and upon terms therein named, to be shipped from Springfield, Illinois, to Waco, Texas, there to be distributed among and to become a part of the stock of said Waco Company to be by it sold at retail; and that it was known by said Racine Company and intended by them, that this should be done; that it was further provided in said contract that the Racine Company would not sell any of its said goods to anyone else at Waco, Texas, and that the Waco Company would not buy goods of like character from anyone else during the continuance of said contracts, towit: from said July 3, 1904, to July 31, 1905, and that said parties entered into a like contract with each other on December 19, 1904, to remain in effect to July 1, 1905.
Said contract is attached as an exhibit to said petition, and the goods mentioned therein include plows, harrows, stalk cutters, listers, middle breakers, corn and cotton planters, cultivators, wagons, drills, hay tools, and plow shares. Said contracts also contain the following clause: "The Racine-Sattley Company agrees to give the party of the second part the exclusive sale of the goods of the class herein ordered in __________ for the season ending July 1, 1905. And the said second party hereby agrees not to buy or sell any other makes of like goods for the same period." Both contracts were alike in all respects, except as to the dates. The petition alleges that though this blank was left in the written contract that it was intended and agreed by both of said parties that said contract was to be performed and carried out at Waco, Texas, and that it was so carried out at Waco, Texas, in pursuance of said agreement and contract.
4. That it was the intention of both parties to said contract that it should be carried out and have effect in Waco, Texas, and to affect the market at Waco, Texas, and that if said articles were interstate traffic when shipped they lost such character when received at Waco, Texas, and the original packages were broken and mixed with the retail stock of the Waco Company and by it sold at retail, and that it was the purpose and intent of the Racine Company that this should be done.
5. That said contracts were in violation of the anti-trust laws of this State in that,
(a) They are exclusive in character and constitute a conspiracy in restraint of trade.
(b) They prevented and lessened competition.
(c) They created and tended to create a restriction in trade.
(d) They created a trust and combination, prohibited by law.
(e) They created and carried out a restriction in the free pursuit of business by each of said parties.
(f) They regulated and limited the output in said articles.
(g) They destroyed all competition in said articles. By either direct averment or by fair intendment, all of such purposes and effects of said contract are alleged to relate to the market at Waco, Texas.
6. That one of said contracts and all negotiations leading up to the same, was made at Racine, Wisconsin, and that the other was signed *667 at Waco, Texas, by the Waco Company and the salesman of the Racine Company, subject to the approval of the Racine Company, and that the same was afterwards approved by said Racine Company at Racine, Wisconsin.
The court did not file its conclusions of law, and we are not advised, except inferentially from the propositions discussed by counsel in their briefs, upon what ground the court sustained the demurrer.
I. The demurrer for the purposes thereof admits the truth of the facts alleged in the petition. In testing the sufficiency of the petition on general remurrer, we must indulge in its favor every reasonable intendment arising from the allegations therein. Wiggins v. Bisso,
Under our statute the effect on the public of an agreement which is against public policy is not essential; thetendency is enough to bring it within the condemnation of the law. Anheuser-Busch Brewing Assn. v. Houck,
Had there been no decisions upon this subject, we should certainly think that the acts alleged in the petition herein violated this statute; in the light of the decisions, we think there can be no doubt of it. Texas Brewing Co. v. Templeman,
II. It is contended that the demurrer should have been sustained because the contract is alleged to have been made in the State of Wisconsin, that the goods were to be shipped from appellee's factory at Springfield, Illinois, to Waco, Texas, and therefore, related to interstate commerce.
It is true that the purchase of goods in one State to be shipped into another is interstate commerce, and therefore not within the provisions of the anti-trust laws of this State. But we do not think that it appears from the petition that the sales, except the first one, were contemplated to be made under said contract in another State. The petition alleges that the Waco Company was doing business at Waco, Texas, where it would naturally be inferred, nothing appearing to the contrary, it would make its purchases. We are not to shut our eyes to such facts incident to commerce as are known to all men, among which is that *669 wholesale dealers ordinarily make sales to their customers in this State by sending their traveling salesmen to their customers' place of business. The reason why the first sale can not be said to have been made at Waco is that it was made subject to the approval of the Racine Company, at Racine, Wisconsin; but it is apparent that the reason for this is that the first sale was made on condition of the approval by the Racine Company of the exclusive contract with the Waco Company. Having thus secured a satisfactory customer for a stated time, it is reasonable to infer that future sales were intended to be made in the ordinary manner, and if so, they would be made at Waco, Texas. It is alleged that the Racine Company had traveling salesmen soliciting and doing business throughout the State of Texas, and in McLennan County, Texas, and one of the contracts was signed by one of its salesmen. It is the business of a salesman to make sales, and it is not to be inferred that salesmen are traveling in Texas for the purpose of making sales in Wisconsin. It is alleged that the Racine Company was doing business in Texas, and in McLennan County, and that it had an office in Dallas, Texas, in charge of its agent and representative. It is alleged that its business was the wholesale of buggies, plows, farming implements, etc. We think that the petition sufficiently alleges, as against a general demurrer, that it was the purpose of the Racine Company to sell goods under said contract at Waco, Texas, and that it was its purpose and intent that said contract should be and was carried into effect in Waco, Texas.
III. It plainly appears that it was the purpose and intent of the Waco Company that it should and did carry out its part of said contract in Waco, Texas. The petition alleges a conspiracy between the parties to said contract, and the facts alleged constitute a conspiracy. If we are correct in holding that the agreement alleged in the petition was in violation of the laws of the State, if the same was intended to be, or was carried into effect in this State, then we have a conspiracy, a necessary part of which was to be, and in fact was, carried into effect by the Waco Company at Waco, Texas. But, says appellee, all of the acts done or contemplated to be done by it were to sell and ship goods, and these acts were to be performed outside of the State. As above stated, we do not so construe the contract, but, for the sake of argument, grant the correctness of this contention, still the Racine Company is no less guilty doing these unlawful acts in Texas, for the reason that the acts of its co-conspirator, the Waco Company, are, in law, its acts.
"If two persons pursue by their acts the same object, by the same means, one performing one part of the act and the other another part of the act, so as to complete it, with a view to the attaining of the object which they were pursuing, this will be sufficient to constitute a conspiracy." Cyc., vol. 8, p. 622. "It is sufficient if the evidence shows, (in this case if the petition alleges) that they performed different parts." Hudson v. State, 43 Texas Cr., 420,
IV. But aside from the law as to co-conspirators and the matter discussed in subdivision No. II of this opinion, does the petition show an interstate transaction? We think not. It alleges that the goods sold and contemplated to be sold under said contract were to be shipped from Springfield, Illinois, to Waco, Texas, there to be mixed and mingled with other goods of the Waco Company, and to become a part of its stock to be there sold at retail, and that said contract was made with the knowledge, purpose and intent on the part of the Racine Company that this should be done. This same contention as to interstate commerce was made in the case of Waters-Pierce Oil Co. v. State, 48 Texas Civ. App. 162[
For additional decisions on the issue of interstate commerce, see Fuqua v. Pabst Brewing Co.,
V. Appellee's third counter proposition is as follows: "The stipulation in the contract which, because of its supposed violation of the law, was made the basis of this suit was entirely incomplete, and there exists no exclusive contract between appellee and the Bomar Hardware Buggy Company."
We presume that this assignment is based on the proposition that a patent ambiguity can not be aided by oral evidence. Such is the law, and in such case, if the written instrument does not evidence a contract without the aid of oral evidence, it can not be enforced. Such is the effect of the decisions cited by appellee, viz: Morris v. Bank of Commerce,
But there is another rule of law, and that is, if there be a patent ambiguity in one clause of a contract which renders it void for uncertainty, the nullity of such clause will not affect the remainder of the instrument, if there be enough left to constitute a complete contract. For example, in the Texas case, supra, the void clause as to confessing judgment, did not render the note void, it being a complete contract without said clause. If this rule be applied to this case it is at least doubtful if the appellee would be benefited by said clause being treated as null and void. Without filling said blank, and treating the word "in" as surplusage, the instrument would show an exclusive contract for the sale of said goods everywhere for the season ending July 1, 1905. However, it is not necessary for us to so hold, and we do not pass upon this point. Again, in the Texas case, supra, Chief Justice Willie said that if it was absolutely necessary to fill the blank with the names of all of the makers of the note in order to give effect to the power conferred, there might be some reason for so doing. Perhaps, if it was necessary to decide the point in this case, it might well be said in view of the allegations, that the goods were to be shipped to Waco, Texas, where the Waco Company was in business, there to be mixed and mingled with their stock of goods of like character, and to be sold by them at retail, that the blank in said contract could not be consistently filled with any words except "Waco, Texas."
But we rest our decision upon another point; and that is, that this is not a suit upon a contract in which judgment is asked for the enforcement of such contract, or for damages on account of the breach of the same, as in the cases cited by appellee. This is a suit to recover a penalty on account of an alleged illegal agreement made and acted upon by the parties thereto. The written contract is but evidence tending to support the charge made by the petition, and it is wholly immaterial that it does not support the entire charge. If the written contract *673 as plead would have tended to support any material part of the State's case, it would have been admissible in evidence on a trial of this cause. By way of illustration, suppose the charge was murder, and the defendant is alleged to be a co-conspirator with another party who did the killing. Upon the trial the State offers in evidence a letter written by the defendant to the murderer in which he stated that he will furnish arms, or otherwise aid the murderer in killing __________ at a certain time, the same being on or about the time the murder was committed, and in connection therewith the State offers to prove, by oral evidence, that the party referred to in said blank was the deceased, would not such letter be admissible in evidence? Undoubtedly so. And it would be equally admissible if, instead of being a letter, it was a written contract in which the defendant agreed for a valuable consideration, to furnish such aid, though, if a contract of this nature was enforcible at law, it would be void for uncertainty and, therefore, would be subject to general demurrer in a suit to recover the consideration therein agreed upon.
For the reasons hereinabove set out we think the court erred in sustaining the general demurrer to appellant's petition, and so holding, we reverse and remand this case.
Reversed and remanded.
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