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neither of them will be directly or indirectly (ness to a certain period of time, on the one interested in the establishment of any show- side by not opening another in Amarillo, house other than the Majestic and the De- and Crandall to abstain entirely for the andi within the period of time named, and if same period; and we are not concerned with they should become so interested they would results, whether beneficial or prejudicial. not be relieved from liability on the notes. See the case of Comer V. Burton Lingo &

In this cause the proprietors of the Ma- Co. et al., 24 Tex. Civ. App. 251, 58 S. W. jestic and the Deandi, “joined their efforts to 969, where the proprietors of three lumber get Crandall to close his show," and as a companies purchased a fourth, the latter abconsummation of their efforts the contracts staining from the lumber business for a were made and Crandall did close upon the certain period, where Judge Templeton held "basis set forth in said contracts with the upon the pleadings the acts were unlawful, Majestic and the Deandi,” as the undisputed and said, "Such combination required the evidence of the witness declares. We are union of the acts and of part of the capital drawn to the conclusion that the "combina- of the appellees (the purchasing lumber dealtion" existed within the denouncement of ers), and if the purpose of the combination the statute, "to create restrictions in the full was to create or carry out restrictions, pursuit of any business

permitted

in the free pursuit of the business by the law of the state," and also the "com-*

it was unlawful.” It is true in that bination" existed for the purpose to obtain case that all the lumber dealers expressly Crandall to "abstain from engaging in or became parties to the contract to eliminate continuing business" in a “portion" of the the fourth from competition, and upon the state.

pleadings the court held the contract in vio[2] When the "combination" exists within lation of other provisions of the anti-trust the contemplation of the law, the Supreme statute, additional to the one we quoted from Court has said (Texas & Pac. Ry. Co. v. the opinion of that court; however upon Lawson, 89 Tex. 400, 34 S. W. 920) that "the analysis of the opinion in that cause, it is statute ignores the common-law distinction quite analogous to the record here. between restrictions which are reasonable [3] It is contended here that the pleadings and those which are not," and "it relieves of defendant do not raise the point; but if the courts of determining whether, in a par- that be true, it is so prominently apparent ticular case, any effect will be given such a upon the record that it is void contract, contract by declaring that it shall be abso- we are required to pass upon it—the very lutely void, and not enforceable, either in right of the cause is dependent upon it-and law or in equity.'” The statute further says, we think the judgment of the lower court "for each and every day that such violation should be affirmed; and it is so ordered. shall be committed or continued a punish- Affirmed. ment accrues," and hence we think that when the representatives of the different moving picture shows got together and acted and Crandall agreed to stay out of business for a CONTINENTAL LUMBER & TIE CO. V. certain period, the acts of combination were

MILLER committed; and when Crandall warranted (Court of Civil Appeals of Texas. Ft. Worth. that no other "showhouse" of a certain stand

Oct. 25, 1913. Rebearing Denied ard would be opened within a certain time

Nov. 29, 1913.) and agreed to close and stay out of business 1. ACCOUNT, ACTION ON (13*)—VERIFIED ACfor a certain time, which he in reality agreed

COUNTS-DEFENSES. to do under the contract, and the others that when an action is founded upon an open

Under Rev. St. 1911, art. 3712, providing agreed that they would not enlarge their own account supported by affidavit it shall be taken business, or be interested in any manner in as prima facie evidence, unless the party re

shall file a written the opening or establishment of any other sisting the claim the moving picture show in Amarillo, the union not just or true "in whole or in part," and if

denial under oath, stating that the account is and co-operation continued. It might be said in part only stating the items and particulars that the contract in a sense did not prohibit which are unjust, and that when he fails to file their going into a new business, and if they such affidavit he shall not be permitted to deny

the account or any item therein, where dedid, they would have to pay the notes, and fendant's denial alleged that the account was though they contracted not to open another not just, correct, and true, that it was not due, show, if they should by themselves, or in part and that defendant did not owe it or any item nership with others, open a business, they statute' only requires a definite denial of that

thereof, this was a sufficient denial; since the would be estopped to deny the notes, because part of the account which defendant considers they could not open or be interested in open- is not just or true, and where the account is ing a showbouse of the standard mentioned in denied in ole every item thereof is put in

issue. the contract, and then plead it and take ad

(Ed. Note.-For other cases, see Account vantage of their own wrong. Crandall did Action on, Cent. Dig. $8 38-40; Dec. Dig. $ 13.*] not take chances, but inserted it in the con- 2. ESTOPPEL ($ 107*)-PLEADING-NECESSITY. tract, which was a continuing one, and each

In an action for the price of lumber, plainagreed in the future to stay out of the busi. I tiff could not insist that defendant by asking

*For other cases see samo topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

damages for the breach of the contract in his market value of such lumber. The defendant answer was estopped to disaffirm the contract. denied under oath the account sued on and where plaintiff's pleadings based the claim of estoppel only on defendant's examination and pleaded specially that the shipment of lumacceptance of the lumber.

ber was not of the character, quality, and [Ed. Note.-For other cases, see Estoppel, quantity bargained for, and that the orders Cent. Dig. § 297; Dec. Dig. § 107.*]

given by him contained the express provision 3. TRIAL (8 194*)-INSTRUCTIONS,WEIGHT OF | that, in case of any disagreement between EVIDENCE. In an action for the price of lumber which the same was to be held by the purchaser

the parties in respect to the lumber shipped, defendant claimed to have rejected because of its defective quality and quantity, where de- subject to an inspection by some officer or fendant pleaded and his evidence showed that person sent by the Yellow Pine Manufacturduring the negotiations looking to the adjust-lers' Association, whose decision should be ment of the controversy be thought the matter had been settled and so used a small quantity final; that he notified the plaintiff of his reof the lumber, but that upon learning his mis- fusal to accept the lumber, called for an intake he immediately notified plaintiff that he spector according to the contract; but that would pay therefor, an instruction that defendant would not have the right to accept the lumbis request had at all times been refused, and ber in part and reject it in part, but that he he has at all times since held the lumber subwas required either to accept or reject it as ject to plaintiff's order. The plea contains a whole, and that if he had an opportunity to and did inspect the lumber after its arrival he ed in connection with the assignments of ap

some further allegations which will be noticshould then determine whether he would ac. cept or reject it as an entirety, was properly pellant. The case was submitted to a jury, refused, as it was on the weight of the evi- and the verdict and judgment were in favor dence.

[Ed. Note.-For other cases, see Trial, Cent. of defendant, and the plaintiff has appealed. Dig. $413, 436, 439-441, 446 454, 456–466;

The case has been once before appealed to Dec. Dig. § 194.*]

this court and will be found reported in 145 4. SALES (8 178*)-ACCEPTANCE-WHAT CON. S. W. 735. STITUTES.

[1] Appellant's first complaint is that the Where a purchaser of lumber refused to accept it because of its defective quality and court erred in not sustaining its special exquantity, but during the negotiations looking to ception urged against appellee's answer de an adjustment of the controversy he thought the nying the verified account, because it failed matter had been settled and used a small quanto deny that such account “is just or true in tity of the lumber which, upon learning of his whole or in part,” as required by the statute. mistake be offered to pay for, this was not necessarily an acceptance of the lumber.

Rev. Civ. St. 1911, art. 3712. Appellee's de[Ed. Note.-For other cases, see Sales, Cent. nial was as follows: “And defendant now Dig. $$ 451-455; Dec. Dig. $ 178.*]

here says that said account is not just, cor5. CUSTOMS AND USAGES (8 8*)–EVIDENCE rect, and true, and that the same is not due, ADMISSIBILITY.

and that the defendant does not owe the In an action for the price of lumber which defendant claimed to have rejected, evidence same, or any item of the same, and this the as to a custom among lumbermen to the ef- defendant is ready to verify." This was suffect that when a purchaser discovered that ficient. It is a denial of appellant's account lumber delivered was not up to grade be should in toto. Hensley v. Degener, 25 S. W. 1130. make out a claim of the amount and forward it to the shipper, and pending the settlement The contention of appellant is for pure liter. between the shipper and purchaser hold the alism. The evident purpose of the statute lumber subject to the shipper's order, was not inadmissible on the ground that the custom

was to require only a definite denial of that was in contravention of law; since, under the part of the account which was not considercircumstances mentioned, a purchaser might ed by the defendant to be just or true and lawfully decline to receive the lumber and hold where, as here, the account is denied in the shipment subject to the shipper's order: whole, every item thereof is put in issue.

[Ed. Note.-For other cases, see Customs and Usages, Cent. Dig. $$ 8–10; Dec. Dig. 8 8.*]

[2] It is next complained that the court

erred in not peremptorily instructing a verAppeal from Tarrant County Court; Chas. dict for, appellant. The instruction was T. Prewett, Judge.

claimed, first, because the undisputed eviAction by the Continental Lumber & Tie dence and the record show that appellee had Company against P. H. Miller. Judgment for elected in his original answer to affirm the defendant, and plaintiff appeals. Affirmed.

contract of sale which formed the basis of See, also, 145 S. W. 735.

appellant's suit by asking for damages for Lattimore, Cummings, Doyle & Bouldin, breach thereof, and was therefore estopped of Ft. Worth, for appellant. Goree & Turn- to disaffirm the contract, as he was attempt. er, of Ft. Worth, for appellee.

ing to do on this trial. This contention is

without merit, however, since no such plea SPEER, J. The Continental Lumber & of estoppel was interposed by appellant; the Tie Company sued P. H. Miller upon an item- plea going only to the extent of alleging apized verified account to recover the sum of pellee's examination and acceptance of the $636.14 due for two cars of lumber sold and lumber in the first place. The instruction delivered by plaintiff to the defendant and in was claimed next upon the ground that the the alternative to recover the reasonable | undisputed testimony shows that appellee, *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series de Rep'r Indexes

after having unloaded and inspected the lum-, when a purchaser discovers upon inspection ber, received and accepted the same, and was that the lumber delivered is not up to grade, therefore estopped, as pleaded by appellant, the universal custom is to make out a claim to say that the lumber was not of the char- of the account and forward it to the shipper; acter, quantity, and quality contracted for. pending the settlement between the shipper The facts with respect to an acceptance, how- and the purchaser, the lumber is held subever, were not undisputed, nor such as to ject to the order of the shipper. Appellant require the giving of a summary instruction objected to this evidence on the ground that upon the theory that appellee had accepted such custom was in contravention of the law the lumber as being in compliance with the of the country with reference to the sale of terms of his order. The trial court very personal property. It is not apparent how clearly submitted this question to the jury, such custom is in contravention of any law. telling them that, if they believed the grade Under the circumstances detailed by the and quality of the two cars of lumber were witness, a purchaser might lawfully decline substantially the same as the grade and to receive the lumber and hold the shipment quality of the lumber ordered, they would subject to the shipper's order. The proposifind for the plaintiff for the full amount suedtion submitted under the assignment raising for, and furthermore, if they believed from this question, however, again asserts that the evidence that the character of lumber or the purchaser in such a case must reject or dered was not shipped, but that lumber of a accept the property as a whole, and, if he different grade and quality was shipped, and retains and uses a portion of it, he is estopthat the same was received by the appellee ped to deny that he accepted the whole. We and accepted by him, they would find for ap- have already disposed of this contention. pellant for the reasonable market value of There was a further objection to this witthe lumber so received and accepted, together ness' testimony upon the ground that the with interest thereon, and that the question pleadings as to custom were not sufficient. of acceptance was one to be determined by But there was a plea of custom sufficient we them under all the facts and circumstances think at least to admit a portion of the witsurrounding the transaction. Neither was ness' testimony, and there is no specific obthe summary instruction called for upon the jection to a particular part which would not theory suggested in the fourth assignment, to be within the pleas. the effect that appellee failed to notify ap- The eighth assignment complains of error pellant within a reasonable time that he had in permitting the witness Faust to testify rejected the lumber.

as to the general custom among lumbermen as [3,4] Appellant's special charge No. 3 was it affected this controversy. But what we properly refused, because under the facts have said upon the ruling last discussed will of this case it would have been on the weight also dispose of this assignment. of the evidence. It contained the following The evidence justifies the verdict and suplanguage: “You are instructed that the de- ports the judgment. There is no error in the fendant would not have the right to accept record, and the judgment is affirmed. said lumber in part and reject it in part, but that the defendant was either required to accept or reject the lumber shipped as a EDWARDS et al. v. DENNINGTON. whole, and if you believe from the evidence (Court of Civil Appeals of Texas. Ft. Worth. in this case that the defendant had an op

Nov. 29, 1913.) portunity to and did inspect said lumber after 1. JUSTICES OF THE PEACE (8 44*)-JURISDIC: its arrival, and that he then would (should) TION — AMOUNT IN CONTROVERSY - AMENDdetermine whether he would accept or reject the same as an entirety.” Appellee plead-secured by a chattel mortgage on property

Plaintiff sued to cancel his note for $65, ed, and his evidence showed, that during the valued at more than $200, and given as a prenegotiations looking to an adjustment of the mium for a hail insurance policy, on the ground controversy with appellant, he thought the that it had been obtained by fraud, and, after matter had been settled, and so used a small him on such note for $76, he sought to re

defendant pleaded a judgment obtained against quantity of the lumber, amounting in value to cover damages in the amount of such judgment. about the sum of $4, but that upon learning Held, that plaintiff's cause of action was to be his mistake he immediately notified appellant construed as one for damages to the amount of that he would pay for the lumber used by jurisdiction of the justice's court, and that, even

the judgment, which was within the original allowing it as a credit on the unloading if the value of the mortgaged property put the charges which had been made against appel- original suit beyond the jurisdiction of the juslant. This, under the circumstances, did not

tice's court, his reply to the plea was in the

nature of an amendment bringing himself withnecessarily show an acceptance of the lum- in such jurisdiction. ber; but the explanation was entirely reason- [Ed. Note.-For other cases, see Justices of the able and tended to negative the intention to Peace, Cent. Dig. 88 157–172; Dec. Dig. 8

44.*] accept. Special charge No. 6 contained the same vice.

2. JUDGMENT ($ 713*) — CONCLUSIVENESS

MATTERS CONCLUDED. [5] The witness Darnell testified to a cus

Judgment against plaintiff on his note to tom amongst lumbermen to the effect that, I the amount of $76 was conclusive as against

MENT.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

161 S.W.-59

his right to recover for damages to that extent, diction of the justice court, still he would on the ground of fraud in obtaining the note; have the undoubted right to put himself withsince, if he had a cause of action for deceit; it in the jurisdiction by an amendment, which, could have been interposed and have availed as a defense in the suit on the note.

in effect, he did in reply to appellant's plea [Ed. Note.-For other cases, see Judgment, of res adjudicata. Cent. Dig. 881063, 1066, 1099, 1234-1237, [2] The next question presented arises up1239, 1241, 1247; Dec. Dig. 8 713.*]

on the plea of res adjudicata. It appears Appeal from Haskell County Court; A. J. to be undisputed that suit was instituted in Smith, Judge.

the county court of Tarrant county for civil Action by G. E. Dennington against H. H. cases against appellee upon the identical Edwards and others, with cross-action by note which he sought in this suit to cancel; defendants. Judgment for plaintiff, and de- that, though he was duly cited, he made defendants appeal. Reversed and rendered for fault in that suit, and judgment was accorddefendant.

ingly entered against him. This we take it Alexander, Power & Ridgway, of Ft. to be is conclusive of his rights in this suit. Worth, for appellants. H. G. McConnell, of It is a well-established rule that the judg. Haskell, Gordon B. McGuire, of Dallas, and ment in a former action upon the same claim C. B. Long, of Haskell, for appellee.

or demand concludes the parties as to every

matter which was offered and received to SPEER, J. G. E. Dennington brought this defeat the claim or demand, as well also suit in the justice court of precinct No. 1, as to every other matter which might have Haskell county, against H. H. Edwards, Hail. been offered for that purpose. City of Housstorm Underwriters, and L. G. Ocheltree, ton v. Walsh, 27 Tex. Civ. App. 121, 66 S. charging that they had fraudulently obtained | W. 106; Nichols V. Dibrell, 61 Tex. 539; from him a certain promissory note dated Henderson v. Terry, 62 Tex. 281; Wilson v. May 6, 1912, for the sum of $65.40 as a pre- Cook, 91 S. W. 236. It cannot be denied that, mium for a policy of hailstorm insurance, if appellee had such a cause of action for agreeing that the policy should be guaranteed deceit as would sustain his claim for damby a certain company, when in truth a differ- ages in this suit, the same could have been ent policy had been delivered to him. He interposed and would have availed him as sought the cancellation of the note; but, up- a defense in the suit instituted in Tarrant on the defendants answering by plea of res county. Such cause of action and defense adjudicata that a judgment had been obtain- were necessarily concluded by that judgment. ed against him on such note in the county The trial court before whom this plea was court of Tarrant county for civil cases, he tried should have sustained the same, and, prayed to be allowed his damages in the for his error in not doing so, the judgment amount of such judgment. The case was

is reversed, and judgment here rendered tried in the justice court and afterward ap- for appellants. pealed to the county court, where judgment Reversed and rendered. was finally rendered in favor of the plaintiff for $76.40. There was a cross-action pleaded by the defendants, but this was de

RECORD CO. 7. POPPLEWELL. cided against them, and no complaint is made as to this portion of the judgment, (Court of Civil Appeals of Texas. Ft. Worth. though they do appeal from the money judg.

Nov. 8, 1913.) ment in plaintiff's favor.

APPEAL AND ERROR (8 773*)-DISPOSITION

AFFIPMANCE-RULE OF COURT. [1] It is first contended that the justice Rule 42 for Courts of Civil Appeals (142 and county courts were without jurisdiction S. W. xiv) provides that, where appellant files to determine this suit, since it was alleged no briefs, appellee, before the call of the case, by appellants, and supported by appellee's ad- may file a brief as required of appellant, shapmission in open court, that the note for the ing his proposition so as to show the correct

ness of the judgment, which the court may recancellation of which the suit was instituted gard as a correct presentation of the case, withwas secured by a chattel mortgage on prop-out examining the record further than to see

that the judgment is one that can be affirmed erty of value more than $200. We rule

upon the case as presented by appellee. Plainagainst this contention, however, since we tiff sued a newspaper to recover $400 damages construe appellee's cause of action, as inter- for the wrongful deprivation of a paper route, preted by his final pleadings, to be one for which suit was consolidated with one by defenddamages for the fraud in which the measure tention being whether defendant was bound to

ant for $125 for papers furnished, the real conof his recovery is laid at the amount of the furnish papers at a price named in a contract judgment, which was within the orginal ju- with the carrier whom plaintiff succeeded, and, risdiction of the justice court. So that, if, on charges within the pleadings, a verdict such

as a jury was authorized to find was returned under the authorities, as indicated in Strick- for plaintiff, and for defendant for $62.50, and lin v. Arrington & Carter, 141 S. W. 189, defendant appealed but filed no briefs. Held, on the value of the mortgaged property, rather plaintiff's brief under the rule, that under its than of the debt secured by it, determines the express terms judgment would be affirmed.

[Ed. Note. For other cases, see Appeal and amount in controversy, and appellee's peti- Error, Cent. Dig. $8 3104, 3108-3110; Dec. Dig. tion as originally filed was beyond the juris- / 8 773.*] *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Appeal from Tarrant County Court; Chas. , debtedness of $62.50 which was in accordance
T. Prewitt, Judge.

with the price fixed in such original conAction by J. M. Popplewell, Jr., against the tract, and it appears from the verdict that Record Company, with counterclaim by de- the jury held with his contention that the fendant. Judgment for plaintiff on his claim papers were furnished under that contract. and for defendant as to part of its claim, The charges quoted appear to be within the and defendant appeals. Affirmed.

pleadings and evidence, and the verdict reBryan & Spoonts, of Ft. Worth, for appel- turned is such a one as the jury were au

thorized to find. We think the “judgment is lant. J. W. Stitt, of Ft. Worth, for appel- one that can be affirmed upon the view of lee,

the case as presented by appellee," in ac

cordance with rule 42, and it is accordingly SPEER, J. J. M. Popplewell, Jr., insti- ordered that such judgment be affirmed. tuted a suit against the Record Company, a

Affirmed. corporation publishing a daily newspaper in Ft. Worth, to recover the sum of $400 damages for wrongfully having deprived him of a paper route in the city of Ft. Worth, YOUNG MEN'S CHRISTIAN ASS'N OF

DALLAS V. SCHOW BROS. and the suit was consolidated with one instituted by the Record Company against Pop- (Court of Civil Appeals of Texas. Ft. Worth. plewell in the justice court and appealed to

Dec. 6, 1913.) the county court to recover $125 balance due 1. ESTOPPEL ($ 107*)-PLEADING AS DEFENSE for papers furnished him. Popplewell had -NECESSITY. judgment on his claim for $370, and the Rec- where the only pleading in the justice court

In an action for the price of goods sold, ord Company recovered judgment on its

was a verified account and no further pleading claim for $62.50, and the latter has appealed. was filed on the appeal to the county court, as

Appellant has filed no briefs in the case, permitted by statute, an instruction, authorizand we would therefore dismiss the appeal ing a recovery if defendant by acts or words,

or both, led plaintiff to believe that the purfor want of prosecution but for the fact that chaser was defendant's agent, with authority appellee has filed his brief under rule 42 to make such purchases for it, was erroneous, (142 S. W. xiv), in which he prays that the since the issue presented was one of estoppel, judgment be affirmed. The trial judge thus benefits of the estoppel unless they specially

and plaintiffs could not avail themselves of the presented the case to the jury: "In this case pleaded it. you are instructed that if you believe from [Ed. Note. For other cases, see Estoppel, the evidence that defendant failed to furnish Cent. Dig. § 297; Dec. Dig. 8 107.*] plaintiff with papers according to the con- 2. JUSTICES OF THE PEACE (8 174*)-APPEALS tract entered into between plaintiff and de

TO COUNTY COURT-PLEADING.

Rev. Civ. St. art. 759, providing that fendant, thereby causing plaintiff to lose the when a case is removed by certiorari from the use and benefits of said route, then you will justice court to the county court, plaintiff find for the plaintiff for the reasonable may plead new matter not constituting a new market value, if any, of said route at the the justice court to the county court.

cause of action, also applies on appeals from time plaintiff lost said route, with 6 per

(Ed. Note.-For other cases, see Justices of cent. interest from March 25, 1912, and, un- the Peace, Cent. Dig. $8 665-693; Dec. Dig. less you find that the defendant failed to § 174.* ] furnish said papers according to the terms of 3. JUSTICES OF THE PEACE (8 90*)-PLEADING

-NECESSITY. said contract, you will find for the defend

Pleadings are as essential to make an isant as to plaintiff's cause of action. As to sue in the justice court as in a court of recdefendant's cause of action, gentlemen of ord. the jury, you are instructed that, if you be- [Ed. Note.-For other cases. see Justices of lieve from the evidence that defendant in the Peace, Cent. Dig. § 306; Dec. Dig. & 90.*] said cause, Popplewell, received the papers

Appeal from Bosque County Court; P. S. sued for in said cause under the original Hale, Judge. contract, then you will find for the Record

Action by Schow Bros. against the Young Company against the said Popplewell for Men's Christian Association of Dallas. Judgsuch amount, if any, as you may find that ment for plaintiffs, and defendant appeals. the said Popplewell owes the Record for said Reversed and remanded. papers, and, unless you find that said papers were received by the said Popplewell under

J. L. Goggans, of Dallas, for appellant. the original contract, you will find for the James M. Robertson, of Meridian, for appel

lees.
said Popplewell as to the Record's cause of
action."

The real ute between the parties arose DUNKLIN, J. In a suit by Schow Bros.
over the contention that the Record was un- against the Young Men's Christian Associa-
der obligation to furnish to Popplewell pa- tion of Dallas, a private corporation, plain-
pers at a price named in a prior contract tiffs recovered a judgment, from which the
with another carrier whose route Popplewell defendant has appealed.
had purchased. Popplewell admitted an in- The suit originated in the justice court,

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*For other cases see same topic and section NUMBER in Dec. Dig. & Am, Dig. Key-No. Series & Rep'r Indexes

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