Kelly v. Bryson Pipeline & Refining Co. (163 S.W.2d 413, 1942)

McDONALD, Chief Justice.

The plaintiff, Bryson Pipeline & Refining. Company, sued the defendant, William Kelly, who did business under the trade name of “Bill’s Wrecking Shop”, for the purchase price of gasoline and kerosene sold by plaintiff to defendant, amounting to $883.43. Defendant admitted in his testimony that he bought the gasoline arid kerosene, and that he had not paid for it, but defended upon the ground that the merchandise was bought under a contract the terms of which were in violation of the anti-trust laws of Texas, Art. 7426 of the Revised, Statutes and Art. 1632 of the Penal Code.

■ The trial court rendered judgment in favor of plaintiff, holding that the terms of the contract were not in contravention of the statutes,' and defendant has appealed. We have'had considerable difficulty in arriving at a decision of the case. The defendant appearing to have admitted the purchase of the goods, and the nonpayment therefor, we have felt that he ought not be permitted to escape liability for payment of the goods unless the case clearly presents a violation of the statutes.

It appears without dispute from the evidence that the goods in question were sold pursuant to the terms’ of a written contract which had theretofore been entered into between plaintiff and defendant, whereby plaintiff agreed to sell and defendant agreed to purchase gasoline and kerosene products manufactured by plaintiff. Defendant operated an establishment on the outskirts of the city of Breckenridge, known as “Bill’s Wrecking .Shop”, and also operated a tank truck with which he distributed gasoline and kerosene as a wholesaler to certain retail dealers in Breckenridge. The written contract in question was executed in the name