
    WHEATLEY et al. v. KOLLAER.
    (Court of Civil Appeals of Texas.
    Dec. 31, 1910.)
    1. Monopolies (§ 12) — Lease—Restraint oj? Trade.
    A lease of saloon property binding the lessor not to lease other property in the same street to others for the same business is not invalid under Gen. Laws 1903, c. 94, forbidding combinations in restraint of trade, etc.
    [Ed. Note. — For other cases, see Monopolies, Dec. Dig. § 12.] _
    2. LANDLORD AND TENANT (§ 233) — ACTION non Rent — Instructions.
    In an action for rent, it was not error to refuse to instruct for the tenant if he had assigned his lease for the preceding term with the landlord’s consent, though the evidence showed the sublessee was in possession and refused to surrender at the commencement of the particular term, where it was disputed whether the landlord had the right of possession, and it did not appear that he agreed to deliver it, or that the sublessee was not a mere subtenant, and where the tenant had stated that he had possession when the new lease was made.
    [Ed. Note. — For other cases, see Landlord and Tenant, Dec. 'Dig. § 233.]
    Appeal from Potter County Court; M. -J. R. Jackson, Special Judge.
    Action by John Kollaer against R. R. Wheatley and another. Judgment for plaintiff and defendants appeal.
    Affirmed.
    Barrett, Jones & Yea tes, for appellants. Cooper & Stanford, for appellee.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes
    
   CONNER, C. J.

Appellee instituted this suit in the county court against R. R. Wheat-ley and W. G. Lanier for the sum of $375 alleged to be due upon a certain rental contract set out in the petition. Appellants pleaded in defense that the rental contract upon which the suit was based was prohibited by the anti-trust law, and, further, that possession of the leased premises had never been delivered to them. The trial resulted in a verdict and judgment in appellee’s favor for the sum of $275.

We will first address ourselves to a determination of the validity of the contract. It was executed by appellee and the appellants on the 29th day of July, 1908, at Amarillo, Tex. Thereby appellee agreed to lease to appellants “for the period of one year commencing the first day of September, 1908, Lot 10, Block 1, of the Holland Addition to the City of Amarillo, known as the ‘Stag Saloon,’ ” for which appellants agreed to pay in advance the sum of $75 per month during the life of the lease, the first payment to be made -September Í, 1908, and on the first of each successive month thereafter. The lease, together with other stipulations not necessary to notice, further specially provides: “It is furthermore expressly agreed that the party of the first part shall not lease, rent, or let any property or premises which he may own on said First street to any party or parties or corporation for the sale of intoxicating or nonintoxicating malt liquors, and the party of the first part hereby binds himself in the sum of the amount of the rentals herein agreed to be paid to prohibit the sale of all such drinks as Uno; Ino; Frosty; Tin-top; Tee-totle and all other brewery products in any building or on any premises which he may own on said first street, and shonl-d such conditions be reached and such sales be permitted then it is agreed that the annual lease value of this contract shall be forfeited to the parties of the second part as liquidated damages.”

Appellants’ contention is to the effect that the provision quoted evidences a combination between the parties to the instrument to carry out restrictions and lessen competition in the sale and purchase of commodities vio-lative of our anti-trust statutes, and that hence the court committed error in instructing the jury, as he did, that the contract was valid. The act of the Legislature relied upon (Gen. Laws Tex. 1903, p. 119), so far as here pertinent, forbids “a combination of capital, skill or acts” by two or more persons for either of the following purposes: “(1) To create or which may tend to create or carry out restrictions in trade or commerce or aids to commerce or in the preparation of any product for market or transportation, or to create or carry out restrictions in the free pursuit of any business authorized or permitted by the laws of this state. * * * (3) ¶0 preyent or lessen competition in the manufacture, making, transportation, sale or purchase of merchandise, produce or commodities, or the business of insurance, or to prevent or. lessen competition in aids to commerce, or in the preparation of any product for market or transportation.” We have concluded that in no true sense can it be said that the designated provision of the contract constitutes a combination of capital or skill between appellee and the appellants within the meaning of the anti-trust act from which we have quoted. Eor a stated rental appellants became the purchasers of a leasehold estate in the premises described in the lease, and during its continuance they were as truly entitled to the exclusive use and possession of the premises as if they had purchased the fee-simple title. The lease provided for no right of control on appellee’s part, for no participation by appellee in the profits or losses of the business to be conducted in the leased premises, or for a combination of any kind other than such as may lawfully occur between any vendor and ven-dee of an estate in land. In these particulars the case is distinguishable from that of the T. & P. Coal Co. v. Lawson, 89 Tex. 394, 32 S. W. 871, 34 S. W. 919, and other similar cases cited by appellants. Such transactions we cannot think fall within the inhibitory features of the anti-trust act under consideration. In no proper sense does the contract tend to “create or carry out restrictions in trade” or “in the free pursuit of any business authorized or permitted by the laws of this state” or “prevent or lessen competition in * * * the sale or purchase of merchandise.” In construing the anti-trust acts of 1889-1895 (Rev. St. 1895, art. 5313), which, in the particulars under consideration, are substantially the same as the act of 1903, our Supreme Court said: “The plaintiff bought defendant’s goods together with the good will of his business, both of which were subjects of purchase and sale, and, in order to render the sale of the good will effectual, the seller agreed that he would not for one year thereafter do a like business in that town. This was but a kind of covenant or warranty that the purchaser should have the use and benefit of such good will during that year, for it is clear that, if the seller had immediately engaged in a like business at the same place, the purchaser would have had no benefit therefrom. By this transaction neither the capital, skill, nor acts of the parties were brought into any kind of union, association, or co-operative action. The purchaser became the owner of the things sold and the seller was by the terms of the contract restrained from doing a thing which, if done, would have defeated in part the effectiveness of the sale.” Gates v. Hooper, 90 Tex. 563, 39 S. W. 1079.

The ease here cited is one upholding the validity of an agreement by the seller of a stock of merchandise not to engage in the business of merchandising in a certain town for 12 months, and the court further say:. “In order to constitute a trust within the meaning of the statute, there must be a ‘combination of capital, skill, or acts by two or more.’ ‘Combination,’ as here used, means union or association. If there be no union or association by two or more of their ‘capital, skill, or acts,’ there can be no ‘combination,’ and hence no ‘trust.’ When we consider the purposes for which the ‘combination’ must be formed to come within the statute, the essential meaning of the word ‘combination,’ and the fact that a punishment is prescribed for each day that the trust continues in existence we are led to the conclusion that the union or association of ‘capital, skill or acts’ denounced is where the parties in the particular case designed the united co-operation of such agencies, which might have been otherwise independent and competing, for the accomplishment of one or more of such purposes.” These conclusions have application here. As before stated, there was no “combination” of any kind other than such as occurs in every sale. As well might it be said that the vendor or lessor becomes a particeps criminis in an unlawful use of the property by the mere fact of thus affording the vendee or lessee the means or opportunity for the prohibited use. Ap-pellee’s agreement not to lease any of his other property on the same street was a mere inducement to secure a renter or an enhanced rental, and in no public or prohibited sense can be said to prevent competition. All other parts of the city and of First street and all other persons are unaffected by the agreement. By the laws of this state no person was “authorized or permitted” to engage in any Rind of business on property owned by appellee without his consent. No law, save for a public use, .could compel a consent. It was appellee’s right to give or withhold as he preferred, and it is upon this ground that the Court of Appeals for the Sixth District affirmed the validity of a contract by the owner of a plantation giving another the exclusive privilege of selling merchandise thereon. See Redland Fruit Co. v. Sargent, 113 S. W. 330. So, too, our Supreme Court in the case of Ft. Worth & D. C. Ry. Co. v. State, 99 Tex. 34, 87 S. W. 336, 70 L. R. A. 950, upheld the contract of the railway company giving the Pullman Palace Car Company the exclusive right to operate its cars over the railway company’s lines. The case last mentioned cited with express approval the case of Lewis v. Railroad Co., 36 Tex. Civ. App. 48, 81 S. W. 111, wherein this court maintained the right of the railway company to grant to a certain person the exclusive right to go upon its trains to solicit business. We think the reasoning of the cases mentioned, together with the authorities therein cited, are conclusive against appellants’ contention herein on the question we have discussed.’

The only remaining question that requires notice is involved in the assignment challenging the court’s action in refusing to give in charge to the jury appellants’ fourth special instruction, which is as follows: “If you find from the evidence that defendant Wheatley with the consent of plaintiff assigned his original lease contract to another party— that is, the contract entered into in May, 1907, to last until September 1, 1908 — then you will find for the defendants.” It appears in the evidence that in May, 1907, ap-pellee had leased the premises in controversy to appellant Wheatley for a term ending September 1, 1908, and that Wheatley with appellee’s consent had subleased or transferred the term to one Burnam, who was doing business in the leased house at the time of the execution of the lease in controversy, and who after September 1, 1908, refused to surrender possession to appellants. The court in one paragraph of his charge instructed the jury in effect that, if at the time of the execution of the lease in question the plaintiff had the right of possession or agreed with either of defendants to deliver possession, the verdict should be for them. It is not undisputed, however, that appellee at the time had the right of possession and there is no evidence that he agreed to deliver it. Appellants’ own testimony is not clear as to whether Burnam occupied the premises as an assignee of the entire term or merely as a subtenant of appellant Wheatley, and appellee testified to appellants’ declarations, which were not denied, that he, Wheatley, already had possession at the time of the making of the lease now considered. In this condition of the evidence we think the court properly and sufficiently submitted the issue to the jury.

We conclude that all assignments of error should be overruled, and the judgment affirmed.  