Nickels v. Prewitt Auto Co.

KEY, C. J. This is a suit upon a promissory note for 8300, with interest and attorney’s fees, and from a judgment in favor of the plaintiff the defendant has appealed. The appeal involves but two questions, and these are: First, that the note sued on is part of a contract which contravenes the anti-trust statute of this state, and therefore the note is not enforceable; and, second, that, if the contract does not contravene the statute referred to, the plaintiff had violated its terms, and that the defendant should be awarded damages as an offset against the note. The contract referred to shows that the note sued upon was executed in part payment for certain automobiles; and, among others, it contains this stipulation: “And the said Prewitt Auto Co. hereby gives the said J. A. Nickels the 'exclusive and sole right to sell the Moon Motoring Car Company’s automobiles and supplies in the counties of Falls and Limestone and in Mart, McLennan Co., and the trade territory of Mart, and this right shall be in force until the first of October, 1911.” It is upon that stipulation that appellant bases the proposition that the contract is in conflict with the anti-trust statute, and therefore not enforceable. We overrule that contention, and hold that the stipulation referred to does not require or authorize apything to be done that is prohibited by said statute. It merely conferred upon appellant an exclusive agency, in a restricted territory, and for a short period of time. It did not prohibit the other party from making sales elsewhere; nor did it attempt to fix prices or prohibit appellant from purchasing or selling other articles of the same kind obtained elsewhere. Norton v. Thomas & Sons, 99 Tex. 578, 91 S. W. 780; s. c., 93 S. W. 711; Redland Fruit Co. v. Sargent, 51 Tex. Civ. App. 619, 113 S. W. 330; Forrest Photographic Co. v. Hutchinson Grocery Co., 108 S. W. 768; 3 King’s Conflicting Cases, p. 297. [1] The other question is based upon the fact that during the time covered by the contract appellee sold to one Robert Nickels an automobile of the kind and class referred to in the contract, and at the time of that sale Robert Nickels resided within the territory specified in the contract, which sale, [1095] "however, was not made in that territory, but at Dallas, Tex. Appellant’s contention is that he had the exclusive right to sell to residents of the territory specified in the contract, but that contention is not borne out by the terms of the contract. That instrument vested in appellant the exclusive right to sell in the territory referred to, but did not prohibit sales by appellee to residents of that territory, who might desire to go to Dallas, or elsewhere outside of that territory, and purchase automobiles or supplies. No error has been shown and the judgment is affirmed. Affirmed.