
    W. T. RAWLEIGH CO. v. MARSHALL et al.
    (No. 6172.)
    (Court of Civil Appeals of Texas. Austin.
    March 10, 1920.
    Rehearing Denied April 14, 1920.)
    1. Commerce &wkey;>40 (I) — Contract of sale by corporation in another state to one in Texas held interstate.
    Where a contract between a manufacturer of medicines provided for sale of its products at its place of business in Illinois to one in Texas, the contract was interstate, and the manufacturer was not required to obtain a license as foreign corporation to do business in Texas.
    2. Monopolies <&wkey;23 —That purchaser treated contract as containing provisions violating monopoly statutes will not prevent recovery, where not obnoxious thereto.
    Though purchaser of medicines from a foreign corporation construed a new contract, prepared to take the place of an earlier contract found to be in violation of the Texas statutes against monopolies, as containing the same provisions as the first, recovery by the foreign corporation will not be denied, where the new contract was not obnoxious to the monopoly statutes, and the corporation was in no wise to. blame for the purchaser’s construction.
    Appeal from District Court, Hamilton County; J. H. Arnold, Judge.
    Action by the W. T. Rawleigh Company against J. F. Marshall and others. From a Judgment for defendants, plaintiff appeals.
    Reversed and remanded.
    H. E. Ohesley, of Hamilton, for appellant.
    A. R. Eidson, of Hamilton, for appellees.
   Findings of Fact.

JENKINS, J.

In 1912 and 1913, the ap-pellee J. F. Marshall entered into a contract with appellant for the sale of medicines and other articles manufactured by appellant, which contract was in violation of the antitrust laws of this state in these particulars: It required Marshall to devote his entire time to the business, to sell the goods at the prices fixed by appellant, and he was to have exclusive control of certain territory. In 1914, contracts of this nature having been held by the courts of this state to be void, the appellant entered into a new contract with appellee Marshall, and entered into renewal contracts with him for the years 1915 and 1916. Appellees Mitchell and Brannon were sureties on the contract of 1916.

This suit was brought by appellant to recover for a balance due it for products furnished under the contract of 1915 and 1916. Appellees defended on the ground that appellant was a foreign corporation, and had-no permit to do business in Texas, and that the contract sued upon was void as being against the anti-trust laws of Texas.

Appellant is a foreign corporation, doing business in Freeport, III. The contract sued upon provided for the sale of its products to Marshall f. o. b. at said point. The goods were so sold and delivered, and appellant had no control over them after such delivery.

The court filed findings of fact and conclusions of law. It found as a fact that the objectionable features, existing in the contract of 1912 and 1913, had been eliminated in the contract herein sued upon. It further found that appellee Marshall in fact pursued the same business methods in the sale of goods purchased from appellant that he pursued under the former contract, and that he was under the impression that he was required so to do by appellant.

Opinion.

The court found as a conclusion of law that appellant was carrying on its business in Hamilton county, Tex., through the agency of Marshall, and that for the reason that ap-pellee Marshall thought that he was bound by the contract to pursue the same business methods as provided in the contract of 1912 and 1913, therefore the contract was illegal, and appellant could not recover herein. The contract provided for the delivery of the goods f. o. b. at Freeport, as stated in the findings of fact herein, for which reason this was an interstate transaction. Amer. Mfg. Co. v. Skidmore, 170 S. W. 128. Such being the case, appellant was not required to obtain a permit to do business in Texas, and the evidence does not show that it did transact business in Texas.

The court’s conclusions of la.w, upon which it rendered judgment for the appellees, are not sustained by its findings of fact. The fact that Marshall may have construed the contract to require him to conduct the business in the same manner that he was required to conduct the same under the illegal contract of 1912 and 1913 could not affect appellant; such construction being erroneous, and it not appearing that appellant induced Marshall to place this erroneous construction upon the contract, or that it had any knowledge that he had done so.

For the reasons stated, the judgment of the trial court is reversed, and this cause is remanded for a new trial.

Reversed and remanded.

BRADY, J.

I concur in the decision and in the above opinion, but, in view of the probability of another trial, I think it proper to express the view that this ease seems to fall within the rule announced in Albertype Co. v. Feist Co., 102 Tex. 219, 114 S. W. 791. If the transactions constituted interstate commerce, the Texas anti-trust statute, as construed by our Supreme Court in the case just cited, would have no application. To hold otherwise would put our statute in conflict with the commerce clause oí the federal Constitution. 
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