
    JACKSON BREWING COMPANY, Appellant, v. Jack D. CLARKE, Jr., Appellee.
    No. 6669.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 30, 1964.
    Rehearing Denied Feb. 19, 1964.
    
      Kelley & Ryan, Houston, for appellant.
    McClain & Harrell, Conroe, for appellee.
   STEPHENSON, Justice.

Plaintiff brought this action to cancel a claim defendant had against plaintiff for beer sold to him. Defendant filed a cross-action to recover from plaintiff the sales price of the beer. Judgment was rendered for plaintiff upon a finding of the jury to the effect that the indebtedness had been incurred in a transaction which violated the Texas Antitrust laws.

The jury found in answer to the first special issue that the beer was sold by defendant to plaintiff under an agreement that plaintiff would sell the beer only in a limited specific territory, that defendant would not sell beer to anyone else in that same territory and that the beer was to be sold by plaintiff only at a wholesale price fixed by defendant. The jury failed to agree upon the answers to the remaining six issues covering matters of cancellation of the debt, payment of the debt and attorney’s fee. The parties will be referred to here as they were in the trial court.

Defendant contends the transactions involved were exclusively in interstate commerce and not subject to the antitrust laws of Texas. It is agreed that all sales made were F.O.B., New Orleans, Louisiana, and that the beer was shipped from New Orleans, Louisiana, to Conroe, Texas.

The plaintiff alleged the agreement under which this beer was sold, was in violation of the antitrust laws of the State of Texas, and was specifically in violation of Articles 7426, 7428 and 7437 of Vernon’s Ann.Civ. St. A portion of Art. 7426 reads as follows :

“Art. 7426. ‘Trusts’
“A ‘trust’ is a combination of capital, skill or acts by two or more persons, firms, corporations or associations of persons, or either two or more of them for either, any or all of the following purposes :
“1. To create, or which may tend to create, or carry out restrictions in trade or commerce * * * or to create or carry out restrictions in the free pursuit of any business authorized or permitted by laws of this State.
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“5. To make * * * or carry out any contract * * * to preclude a free and unrestricted competition among themselves or others in the sale or transportation of any such article or commodity * * *.
“7. To abstain from engaging in or continuing business, or from the purchase or sale of merchandise, produce or commodities partially or entirely within the State of Texas, or any portion thereof.”

A portion of Art. 7428 reads as follows:

“Art. 7428. Conspiracies against trade
“Either or any of the following acts shall constitute a conspiracy in restraint of trade:
“1. Where any two or more persons, firms, corporations or associations of persons, who are engaged in buying or selling any article of merchandise * * * enter into an agreement or undertaking to refuse to buy from or sell to any other person, firm, corporation or association of persons, any article of merchandise, produce or commodity.”

Art. 7437 reads as follows:

“Art. 7437. All agreements in violation of, void
“Any contract or agreement in violation of any provision of this subdivision shall be absolutely void and not enforcible either in law or equity.”  