*1 Reports. {March, Texas it, ment, Bro., correspond note to that Halff & relying changed intent for case of fraudulent which relieves the that agreement, to It of forfeiture. is not necessary law will inflict the penalty which the Half Bro. whether or not & have. might for decide this case us it contract make correspond agree- claimed reformation note without the had no agent. They right change ment with the that note having Otto and suifer consequences consent of he invalid, they that must likewise de- hut does rendered follow that which due them upon open to recover was prived no error in the account judgment upon There was giving account. & Bro. Louis Otto. against of Half favor Half & Bro. for what Otto to stated specifically The note given verbal agreements upon pledged previous collaterals were note. The note the- discharged by merged being were subject and the likewise it, discharged; were alteration made collaterals Half & retain the collateral notes Bro. could court erred holding account, District for which judgments to secure this error be ren- judgment will reversed Appeals Court and Court of Civil three that the two thousand is ordered note as follows: It dered 70-100 dollars executed delivered hundred thirty-seven 18, 1893, & December Bro., J. A. Otto M. Half dated Otto and Louis 1894, cancelled,, same is 1, hereby be to become due November R. Ellis and J. payable four notes Ellis by Maggie that the signed M. &Half Bro. to Louis each, be restored by $513.40 to Louis Otto M. Half & all costs J. A. Otto recover of Bro. Louis and Otto, and that courts, execution issue. further ordered may for which It in all Half & Bro. recover of Louis Otto the sum of nineteen hundred M. cent, dollars, 46-100 six with interest per ninety-six 1895, execution issue. for which April, 35th day
Reversed and rendered. Company v. Thomas & Coal Lawson. Texas Pacific 26, Decided March1896. No. 346. Trust—Illegal Combination. 1. operating mining which was Company, Coal coal business its large residing large thereon, of employees land and had number made tract leasing years carry him for Lawson five on which contract agreed selling lease liquor: to no other the same business on said its permit nor one else business land: also to weekly to be employees, time checks were redeemed when issue checks profits was to up Lawson: receive as rent two-thirds taken monthly returns of which business, made Lawson. the saloon was Held, in violation statute trusts (Pp. 400 to void. Against Against Conspiracy Trade—Law Trusts. (Ch. Leg., 141) ignores p. Laws The statute the common law distinc- & Co. Pacific Coal v. Lawsoít.
1896.J not, tion between which are and those which be- restrictions reasonable *2 (Pp. necessity prime* tween commodities which are which not. those 401.) 400, Constitutes. Combination—What 3. statute, means union association. The combination, as used in the or The word by parties provided only union or association the their for the contract in action the term further- capital, but also for their united and associated object: of a was to out restrictions ance common retailing prevent competition spirituous liquors.— in the trade of trade illegal contract was and no action or Under statute counter-claim could grounded 401.) (P. thereon. Contract—Question Appeal—Illegality Hot Trial 4. Raised in Court. jurisdiction legality Supreme Court has consider plaintiff’s of the contract was the basis of the claim which the counter- although defendant, point claim was not raised in trial court nor assignment (Pp. 403.) by of error. Same—Practice—Objection to Evidence. 5. parties Where the contract was unlawful neither could base thereon cause action or counter-claim. It follows it was error for the trial court objection, tending allow, plaintiff’s proof over fact growing support the counter-claim of out contract; defendant of such and it urged invalidity is immaterial objections; support of the contract was not in of such pleading every special exception for in case or evidence must general objection legality necessarily involve the to its or competency event. (P. Illegality of Contract—Waiver. litigant by express Parties pass cannot waiver induce a court over the il- legality supposed and administer their thereunder based legality; assumption certainly of its a mere omission to notice such vice bring (P. 403.) it to the the court attentioin can have that effect. Ekrob to Court of Civil for Second Appeals District, appeal from Hood County.
Action for rent distress $4003.88. warrant for The distress was levied the stock trade of the defendant. The plaintiff amend- ment increased rents, its claim $13,500—chiefly for part balance of an account. filed
The defendant claim for value of the counter seized and for value of the lease and actual damages, exemplary, out of the distress wrongful suing warrant. jury
The verdict of the “We the follows: find for de- jury Thomas Lawson as fendant follows: T. & P. Co..............$ on account Coal 750.24
“Due and other 3985.33 “Due on stock levied on........ property 478.23 “Due on interest stock....................... n 6852.60 “Due for value lease.............. damages “Total..................................$12,066.40 6000.00 damages damages..... “As actual and as exemplary “Total..................................$18,066.40” defendant, was, therefor was Judgment judgment rendered Reports. [March, Tesas Court affirmed of Civil Other sufficient state- Appeals. on appeal, court. opinion ment given Dunhlin, Hunter, Stewart & for plaintiff in error.
L.T. Nugent Wray, John W. for defendant in error. DENMAN, Associate Justice. The Texas & Pacific Coal Company of a land, upon the owners which it had a coal being large quantity Thurber, Texas, in Erath mining camp, County, called about containing thousand people two engaged directly indirectly development about four company’s mines, hundred of them operation of being miners, also store, the owners various being buildings designed *3 store, stable and saloon for the livery of drug purpose supplying on community, March, 1890, a did the 31st of enter day wants of such Lawson, an Thomas into said leased agreement whereby company saloon, its storage to Lawson cold and and building yard dwelling therewith, a years acre connected for term of five with a one privilege it, renewal, effect, and itself to the that neither suc- obligated (1) its would, lease, assigns nor its continuance of such sell during cessors Lawson, than persons or other or other said his permit -any agents wine, or to sell beer servants, any spirituous liquors upon any or lands lease, the term or said said occupied company during owned (2) restrictions of sale of lands should be inserted in case such sale of such said suc- liquors, (3) that company, the deeds prohibiting said lease “issue checks persons and should assigns cessors or be due for labor money wages to whom may performed, in its employ so which re- all checks issued said Lawson weekly to redeem and him.” sold wines, for beer or spirituous liquors ceive of the instrument it is “the on the face It is disclosed to said Lawson the exclusive to confirm privilege selling of this lease the land of wine, beer and spirituous liquors company during this lease.” the term himself, instrument obligated (1) terms this Lawson
By a prudent, saloon business in and economical said buiness-like conduct to said statements “monthly to render manner, company showing (2) business,” of said accurate com- (3) pay and status said full, complete “for of said the rental assigns, premises its successors pany, beer, sale of as aforesaid wine privilege exclusive “sum to two-thirds of the net profits a equal arising liquors,” spirituous lease,” the term of monthly during being business from said of such rent not be should required during payment provided as mines for much might suspended operation as periods time. a month a as rent distress warrant on this contract for and by sued company saloon, thereafter entered in said the stock liquors
"seized business therein on began leased premises took possession its own account. y. & Pacific 39? Coal Co. Law sou.
1896.1 not, Lawson in his claimed, answer that he on a settle- was correct (1) ment of the contract, accounts between and the under him company indebted to sum, it "was Mm due justly he large sum which that his stock aforesaid prayed judgment, (2) was wrongfully seized and sold under said proceedings, prayed judg- ment for its value, (3) that had been he said wrongfully deprived lease and exclusive privilege, great his for which he damage, prayed judgment, that said (4) seizure his and leased stock malicious, wrongful for which exemplary he prayed damages. There were other issues presented by both sides, to mention here. necessary
Verdict and thereon judgment was rendered against plaintiff, and defendant, on each stated, of the claims above affirmed by being Civil the cause has been Appeals, to this court brought writ error.
The following us: questions present themselves to the con (1) Was aforesaid, tract law, when as matter made, void an undue being trade, restraint tending intended create foster a asor being trust within the statute? monopoly, so, has this (2) If court the power, having acquired jurisdiction the case a writ of granting error application raising as to legality contract, to declare the contract void therefor when its legality the court questioned by firs: submission of the cause, after other *4 words, is the court compelled to over the as to pass question the binding force of the contract and determine whether errors law have been by committed the other courts attempting to the supposed administer legal based such an parties upon agreement, because simply neither fit by has seen party pleading otherwise assert an invalidity (3) on face? If apparent contract be held what effect will have the various holding claims, counter-claims and de set up respective v. parties? (Beer fenses Land 805; 31 S. man, W. Anheuser Busch Rep., Houck, Association Brewing v. 30 Rep., 869.) S. W. questions
As these not discussed in the briefs wMch this submitted, we deem it to set proper cause aside submission and cause for oral arguments refer the back and written either as counsel above stated. desire questions 35, 1895. Delivered November Seth Stewart and T. League, W. W. on brief of request
Additional Court. In this honorable court be briefed by submitted response questions to say: we leave beg argued, of Lawson which had accrued filed this suit to recover rent Having which is called in contract, the now validity under the terms of the court, “where we exactly this we are at a loss know by just question attorneys. at” as Bepobts. Stjpbeme Cotjet [March, suit, afterwards, we filed the occurred us at the time nor never It the act in violation of contracts in the contract was prohibiting that suit that statute only was filed about after year trade. restraint of courts, of our to us, took known had effect, any adjudication and before made, our most oversight important hence of this We question. to take compelled much to inconsistent very contradictory dislike 1889, case, from a careful of the statute of positions reading this 692, Houck, case S. W. Brewing Company against Bep., and the cited, as as cited on motion rehearing, cases there well those 870, 30 W. are driven by as court in S. Bep., same case decided this is a contract sued on us contract entered into in admit “beer, It occurred to spirituous restraint trade wines liquors.” us do he on corporation pleased at first could as his own stores, saloons; two two land, and one store or one saloon or put up this inherent in his hold right having privilege acquire prop him; true, law interfere with but while this bemay could erty, statute, that the of Texas now evinced policy is, seems this firms and from prohibit persons, corporations binding themselves by contract in manner so to restrict the time to change to matters affecting their course conduct reference restrictions of so; to do trade, if the contract sued on would they proper should see valid, if the Coal another prevent Company up clearly, putting the ten appear on the however years, great might saloon nor could it to others. This necessity, grant privilege certainly, restricting the saloon business the hands of one then, is a contract ten 25,000 owned years, pro man on the company acres time, that land for that length hibits line on any competition Crawford & v. Murray is in violation of statute. See probably Construction, sec. 190; St., Wicks, Statutory Ohio Sutherland Ill., 346; Morris Run Coal Co. Mconoughy, cited; Craft and cases Y., 68 N. 173; Co., Arnot v. Pittson Coal St., 68 Pa. Co., Coal Barclay Guthrie, 666; India St., Ohio Asso Bagging Co. v. 558; Central Salt Ann., 164. Kock, 14 La. ciation v. 25,000 acres character public considering
In As be overlooked. shown the coal of land owned *5 a land with a has established town said record, company usual and trading and establishments kinds of stores postoifice in that country; the public the demands of necessary supply a contained consideration, contract under town, the date of the at which people. of 2000 population has company town lands the coal establishment this
In the privileges certain public conceded voluntarily into with entered a contract restrict, restrain or abridge, by now it cannot It is in this case. consideration the one under such as a third thus town, in said all the lots the owner being true, the company saloon, any a it, single maintain at its pleasure established could com- facilities the saloon enlarged demanded necessities public time Texas & Pacific v. Coal Co. Lawson. 399 1896.] a have a dozen or hundred if there should be could established pany any However, therefor. contract into with Lawson necessity entered if valid, its reach to entirely beyond has establish put is saloon, so, other town, or to one else do said for and dur- permit of ten have ing years, might period notwithstanding population 25,000 period people, notwithstanding pub- increased demanded a saloons. On line of necessity may lic have dozen argu- & Murray Wicks, St., 18 ment the case of Crawford v. Ohio other cited on. Crawford & v. was a cases above are relied Wicks ease Murray similar the one under respects consideration. many conclusion, If then we the court comes the same understand de our and authorities on whether it would have jurisdiction sires views void, writ of error the contract when the on other granted declare invalidity of the contract was after grounds, and the raised argument itself. case, by the court We affirm submission unhesitatingly jurisdiction. It is certainly error, the court has a fundamental if court all, always, find, error at and this has so far as we can exercised the to consider and errors, decide fundamental right wheth jurisdiction Stats., 1033; See art. 23 Sayles er not. Rules assigned Cts. Texas, 700; 84 Texas, 516; Harris v. Petty, Civ. Hardin v. App., Ab 582; Texas, Hardesty 395; v. bey, Fleming, Texas, Railway Texas, 650; Nalle, of Austin Scanlon, City Texas, 539; Rev. we think this Stats., ought And court to deprive itself of so jurisdiction, for it important is always exercised in the inter an litigation, end has that effect putting est and no other. understand the court’s We also from order referring the case back to case the court rent us, holds the our views are to the such a holding effect would have upon desired the claims, and defenses set up by counter-claims respective parties. Here again that the statute referred cuts great believe figure; we it certainly cut off the defendant will, opinion, our from recovering any damages contract, or for of void repossessing for breach itself of the saloon prem- ises, exemplary, whether actual will leave the defendant to claim actually of the taken and claim goods $1000 value his services On plaintiff. miners obtaining plaintiff’s side it seems to us would be precluded that we rents claiming accruing under and by contract; stipulations void virtue but we submit that we right to left the recover for use should be and occupation so much as the reasonably worth, and that our suit for rent ought not to the counter-claim for dismissed unless the value of the goods seized also. is dismissed
We think the defendant’s counter-claim for the market value of us, well plead seized and that against to be ought per- amend our so mitted to sustain our distress warrant setting up claim for the reasonable obligation value of the use and us, Ho occupation premises. limitation has plead *6 plead could be apprehend successfully, rents, as the suit is Eéports. [March, 400 which rent mistaken the ac- grounds and while we have accrue, it, and this would crued, it did and we sued stop yet our claim for running limitation from rent statute of for the named. period also left with its its actual owner- The would be assert plaintiff seized, therein, or at least a interest two-thirds de- ship thereof, the value which, upon fense claim for the present defendant’s under amended or all events would be pleadings, pleadings, legitimate ** * court below. inquiry matter W. Wray, reargument John defendant in concludes: The error, then, before us on the facts and on law is whole summed up an viz.: Can owner one proposition, private impressed property, duties, to a to con grant no exclusive man quasi-public privilege The proposition business thereon? an legalized necessarily duct it is to deny private itself. To car deny ownership property swer In the forcible exclusive Lord Den- rights. language with it any ries wound on it.” “carries its death Ins. apparent Citing: this denial man 265; Co., Texas, 86 Natl. Benefit Co. v. Union 11 State, Hospital v.Co. 58 205; v. N. W. Ann., 437; Wittenberg, Rep., Mollyneaux Rep. Law. 157; Fed. Ladd v. 53 Whitesides, Rep., Compress Texas, 19 Co., v. Sharp Robards, 545; 60 v. Texas, Co., Morris Tuscaloosa Mfg. 172; Railway Assn., 211; Brewing S. W. 689; Rep., Wiggins Co. v. Rep., So. Ice Iowa, 389; Railway, 191; Richmond v. In re Mo., Railway, 115; Co., 66 Fed. 246; Laredo v. Rep., Bridge Rep., 52 Fed. Green, Wall., Cases, Slaughter-house In theformer aside
DEÜSTMAE", opinion setting Associate Justice. back for argument, this cause sufficient has referring the submission nature of the contract and the issues presented to indicate stated based thereon. the pleadings consider is whether the contract created we will first question The 141, of the of 1889, of Ch. Acts meaning p. within trust skill, or capital, a trust is combination acts two “That provides firms, or or persons, associations corporations, or more persons, either, any, or all of of them for the following pur- more two either .or ** or out restrictions in trade First, to create *. poses: * * * * * * or sale purchase competition Third, prevent * * * declares, “That or commodities;” any contract agree- shall act provisions absolutely in violation ment in law or The of the act equity.” portion above not enforceable the enforcement at prohibits void and law equity denounces quoted skill, a combination whereby capital, acts formed every trade,” “to restrictions in carry out prevent create or “to competition the com- commodities.” statute purchase ignores sale or between restrictions which are reasonable those distinction law mon which are of and those not, prime necessity and commodities which are *7 y. & 1896.} Texas Pacific Coal Co. Lawson. (Houck
which are & Assn., not. Dieter v. Brewing Texas, 185; Brew Assn. Houck, 27 S. ing W. It Rep., 692.) relieves the courts the determining whether in a difficulty particular case any effect will be contract, by such that it “shall given declaring be and absolutely not either in enforceable law or equity.” (Beer Landman, Texas, “combination,” in 450.) The word used the statute, as means union or association. It is clear that the provided contract for and contemplated acts a union or association of and the capital Coal Company and Law- son. The former furnished place business, the the agreed during term of the lease would not other permit any saloon to do at business Thurber, it would off in pay employes its checks instead of money weekly would redeem such of said as might checks Lawson take in sold, and agreed business, for the latter conduct the to furnish liquors thereof and the former statements two-thirds of pay the monthly profits use of the and the in return for the exclusive privileges guaran- provided, Thus the contract teed contract. for the union only the by the their but also their parties capital, or association for united action, term, entire during furtherance the com- associated therefore a “combination of capital” mon and was “acts.” object, however, to be order, In for the contract within the inhibition of the formed for statute, the combination have one purposes Was either “to create out therein its or restric- purpose specified. or prevent “to sale or of com- competition purchase tions in trade” as used, court has held that here modities?” This word “trade” “the which is defined be and commodi- traffic, passing means to another for equivalent ties from one person goods money,” “any “commodities” means movable and the word tangible thing subject of or used as barter or (Ins. is sale.” Co. v. ordinarily produced It then that Texas, is clear con State, dealing liquors “trading,” contract is their templated by pürehase sale is (88 Texas, within 692, “commodities” the statute. 27 W. Rep., S. from face apparent It is supra.) contract, entering into combination was, evidenced of the parties thereby able, (1) to restrain other they might any far as from person entering to the of Thurber selling business liquors people into the during from employes company lease, prevent purchasing (2) liquors Lawson, than (3) other influence from such employes one saloon, in the erected and earnings their maintained under the squander for the benefit principally contract of the employer. terms of the This not to from the one agreement permit else to sell apparent to- the lands, added company’s very on the liquors extraordinary agree should, lease, the term company might ment that the laborers, issue checks instead of money, have been ten years, paying of those checks Lawson weekly might take and redeem This guaranteed saloon. Lawson the cash at at such sold liquors he might sold, on such checks as take in for liquors week end of each company, refusing power delaying pay- put Supreme—26 LXXXIX. Vol. Reports. [March, ( Lawson checks, of other from readily
ment others receiv- prevent from thus their same force ing employes negotiation liquors Thus the scheme evidenced said saloon. only prevent any other into coming competition Lawson, with but also to invade the miners to their spend wages choose, whomsoever for whatsoever they might practically place it in the power to direct its expenditure liquors *8 at a saloon conducted for its own benefit.
We are of that the opinion of the combination purpose was create and out a restriction in of Thurber, the sale liquors and also to in sale and thereof. prevent competition the purchase It results from what has been that the said contract created trust a statute, within the of the meaning void, and therefore and no action or counterclaim thereon. can be founded
While our place upon we decision the statute we apprehend would be difficult sustain the contract at common law. & (Crawford v. Murray Wick, St., 190; Co. 35 St., 666; Ohio Salt v. Ohio v. Guthrie, Craft Ill., 346; Arnot Pittston & Elmira Co., Y., v. Coal N. McConoughy, 558; Barkley Co., St., Run Co. Coal Penn. Morris Coal in argument Counsel Lawson an able contends court has contract, no to consider the of the since that jurisdiction illegality ques- tion, as our former opinion, indicated in was not raised the court below as error here. contention is assigned based the upon the jurisdiction that the limits of this court to ground statute the con- of assignments sideration the error specific of the writ upon was its of a consideration even fundamental error not precludes granted, we are not assignments. in such While inclined to agree included statute, of the we deem it to decide the unnecessary construction such in this case. question defendant cover plaintiff below one nearly
The pleadings fifty type-written the six hundred and the record pages hundred we will not undertake eve» outline numer- us, and therefore before will content support thereof; the evidence adduced issues ous made, statement heretofore and the additional brief with the ourselves counterclaims claims and of the plaintiff that the various statement are based defendant, pleadings, upon rights set up supposed out of and of the dependent upon validity growing parties of the one it which was tainted with preceding referred to and the above same vice. in this court of the complaining error assignments fourteen are There n to sustain Appeals refusing assignments Civil the Court action of the ruling correctness calling in that court made trial progress questions arising various trial court out determining parties growing purpose for the had Some of such assignments question contracts. and void unlawful of said various acts plaintiff’s others prove, plead, defendant’s of the plaintiff part a settled to show tending officers Coal Co. Lawsoh. & Pacific 1896.1 ruin, of his lease the value thereby destroy defendant’s business same, so reduced the receipts him to abandon all of which force due, plain- and that thereupon run at loss no rents saloon was This bore evidence tiff and seized the leased premises. attached lease, the under the between parties state the account issue of value had deprived, lease of which defendant ren- which issues the seizure, jury each of punitory damages for its a violation of sum, dered a based upon verdict for for a large defendant some out Since right growing of the contract. supposed opinion that the contract itself that neither of parties could base counter-claim, thereon cause it follows of action was error for allow, the trial court plaintiff’s objection, plead- over of any fact or defendant’s said ing proof facts tending support counter-claims based thereon.
It is immaterial wholly invalidity that the of the contract was urged objections, support every in such case special exception or evidence necessarily involve the pleading general objection legality event. If the foundation action competency *9 fails the evidence verdict there- tending are support by necessarily admitted, shown to have been sustained and improperly folly it for a be court to determine, thereafter would undertake do, are now asked to we whether such and evidence pleading were prop- upon sustained and admitted the erly the of the assumption of legality cause of action. Parties litigant cannot by express waiver induce a court illegality over the of a pass contract and administer their supposed thereunder based of assumption legality certainly a mere omission notice such vice or bring to the attention of the court cannot have that effect.
There other assignments, are based upon the action of the court in evidence, excluding refusing charge jury, aside set refusing verdict, which also necessarily involve the consideration ques- of the validity tion as to the of the contract under the stated, above principles for the same reasons we think the action of the court with reference erroneous, but thereto no useful purpose would be subserved by going detail, over them in as the case must be disposed here for the errors above noticed.
For the indicated, errors above judgments the Court of Civil Ap- peals and the court will be trial reversed and the cause remanded. It be that some of may repleading the claims or counter-claims can be far so separated illegal as to permit a recovery, reason will not dismiss entire as would proceeding be On otherwise proper. referring the cause back we requested argu- citation ment and of authorities in expected order to us enable to deter- trial, mine, in view another which of the claims or counter-claims affected, so would be far case we concluded the contract was ille- and void, as to gal preclude thereon, resovery but as we have not benefit given authorities thereon we not do feel called go Reports. Supreme [March Court consume much time and which would examination questions into an issues of no service in be determining be finally probably herein. adjudication presented Eeversed remanded-. Company v. L. F. Holcomb.
Aetna Insurance Decided March No. 357. 1896. Findings Appeals. of Civil of Facts Court 1. Absence findings Appeals upon, no Court of Civil Where of fact have heen made consider, practice is evi- an issue it of the the uncontroverted findings to the issue. pertinent dence in record The absence of facts in such (P. 408.) is material. ease Mortgage—Record as Notice.
3. given persons to whom notice was the record a mort- The classes mortgagees mortgagor, gage subsequent purchasers creditors good policy upon record does not affect an insurance faith. Such lien-holders mortgage (Pp. chattel when insured. 408 to property, under a personal Waiver—Pleading. 3. company of a of the conditions of hy policy- insurance breach waiver The (P. 410.) proof such waiver. pleaded in order admit on must be sued Contract—Ignorance Terms Of. 4. he policy bound its terms whether read of an insurance holder doing (P. 410.) prevented him from so. facts shown which not, when no Policy. Warranties 5. policy contents sued on will plaintiff did not know the The fact binding If, in it. how- force of warranties contained him from the relieve knowing insurer, of a fact the time the is- existence ever, in- warranty by the its existence policy, inserted therein suance (P. 410.) have been waived. court will hold it to sured Agent. Inquiry—Duty of Insurance *10 (insurance agent) upon inquiry to the. devolve the insurer make It does not mortgages written insured, no upon property other liens when existence (P. 412.) presented hy the insured. application printed Fact Case—Waiver. appear, or of it is held that matter of fact See facts does incumbrances, waived the clause as to or that it did not the insurer law, in- (Pp. policy. inserted such clause to insist tend District, of Civil Second Appeals to Court appeal
Error County. Denton the insurance recover loss fire Holcomb against
Suit Defendant set a. up existence personal property. policy a condition in the mak- property policy mortgage chattel Plaintiff and defendant judgment, in such case. recovered it void ing whereupon affirmed Court of Civil Appeals, appealing, writ of error. procured appellant when of insurance
Harris & plaintiff The policy in error. Knight, estopped assured is parties. the contract accepted expresses