McConnon Co. v. Powell

(after stating the facts as above). The question as to whether or not a given contract falls within the prohibition of the Anti-Trust Act of this state depends largely on the circumstances of each case. In the instant case there was no agreement to artificially enhance prices and suppress competition, nor to place any restriction in the free pursuit of a business authorized or prescribed by the laws of this state. The agreement here, as established by the jury findings and the undisputed evidence, constitutes, in legal effect, an agency contract. The contract by its terms is not in any sense, we think, a contract for the naked sale of goods to C. P. Powell with a restriction upon the sale by C. P. Powell of the same thereafter. A sales or agency contract, as here, is not violative of the Anti-Trust Act of this state.

There is distinguishment between the instant case and the cases of Newby v. W. T. Rawleigh Co. (Tex. Civ. App.) 194 S.W. 1173, and Whisenant v. Shores-Mueller Co. (Tex. Civ. App.) 194 S.W. 1175. In the Newby Case the acts of the parties constituted a combination to restrain the further pursuit of the business of selling the products, because the products, as determined by the court, "had become the property of Newby." The Whisenant Case is similar to the Newby Case. In each of these two cases the court concluded the fact to be that the agreement was a naked sale of the products, and not a mere agency agreement. In the instant case it is clear that C. P. Powell was to do personal service in the selling of the products of appellant, and was to get one-half of the selling price of the products as his pay, and he could "give up the work" and return all unsold products at any time. These facts all negative an absolute unconditional sale of the products to C. P. Powell.

The judgment is reversed, and we conclude that judgment should be here rendered on the findings of the jury and the undisputed evidence in favor of the appellant for the sum of $610.01, interest, and all costs of suit, and it is accordingly so ordered.