We hold that a violation of the Texas antitrust statute could not serve as a valid basis for the court's summary judgment. Patrizi v. McAninch, 269 S.W.2d 343 (1954); Ford Motor Co. v. State, 142 Tex. 5, 175 S.W.2d 230 (1943); Pram Lab-S., Inc. v. Pram Lab-S., Inc., 445 S.W.2d 533 (Tex.Civ.App. — Dallas 1969, no writ); Jackson Brewing Co. v. Clarke, 375 S.W.2d 352 (Tex.Civ.App. — Beaumont 1964, writ ref'd n.r.e.); Rogers v. Westinghouse Elec. Supply Co., 116 S.W.2d 886 (Tex.Civ. App. — Dallas 1938, writ ref'd); Nat'l Automatic Mach. Co. v. Smith, 32 S.W.2d 678 (Tex.Civ.App. — Austin 1930, no writ). In their motion for summary judgment, the Rogers also attacked Oliver's and Parker's breach of contract cause of action on the ground that it was barred by limitations.
The type of agreement condemned by those statutes is that whereby one party sells products to another party and they agree to prohibit or restrict the purchase or resale of those products by or to other parties, or limit such sales to a territory which tends to restrict trade and commerce. Sherrard v. After Hours, Inc., 464 S.W.2d 87 (Tex. 1971); Climatic Air Distributors of South Texas v. Climatic Air Sales, Inc., 162 Tex. 237, 345 S.W.2d 702 (1961); Ford Motor Co. v. State, 142 Tex. 5, 175 S.W.2d 230 (1943); Grand Prize Distributing Co. v. Gulf Brewing Co., 267 S.W.2d 906 (Tex.Civ.App. San Antonio 1954, writ ref'd); National Automatic Mach. Co. v. Smith, 32 S.W.2d 678 (Tex.Civ.App. Austin 1930, no writ). The statutes do not apply to arrangements where one party merely represents another party for the purpose of selling his products, or where goods are delivered under circumstances where title does not pass, as in a consignment. McDaniels v. Schmalstieg, 36 S.W.2d 278 (Tex.Civ.App. San Antonio 1931, writ dism'd); Ormsby v. Ratcliff, 22 S.W.2d 504 (Tex.Civ.App. Waco 1929), Affm'd, 36 S.W.2d 1005 (Tex.Com.App. 1931, jdgmt adopted); McConnon Co. v. Ralston,275 S.W. 165 (Tex.Civ.App. Texarkana 1925, no writ); Brenard Mfg. Co. v. Crowley Mercantile Co., 260 S.W. 246 (Tex.Civ.App. San Antonio 1924, no writ); McConnon Co. v. Powell, 248 S.W. 428 (Tex.Civ.App. Texarkana 1923, no writ); Barr v. Southwest Wholesale Furniture Appliance Co., 331 S.W.2d 343 (Tex.Civ.App. Fort Worth 1960, no writ); Lemmon v. Furst Thomas, 166 S.W.2d 755 (Tex.Civ.App. Dallas 1942, writ ref'd w. o. m.); 38 Tex.Jur.2d, Monopolies, Combinations, Etc., Sec. 15, p. 791; Sec. 16, p. 793.
The cases cited do not control the facts of this case. The following authorities support the judgment of the court overruling the general demurrer on this point: McConnon Co. v. Klenk (Tex. Civ. App.) 11 S.W.2d 222; Henderson Tire Rubber Co. v. Roberts (Tex.Com.App.) 12 S.W.2d 154; Chunn v. W. T. Rawleigh Co. (Tex. Civ. App.) 9 S.W.2d 268; W. T. Rawleigh Co. v. Land, 115 Tex. 319, 279 S.W. 810; National Automatic Mach. Co. v. Smith (Tex. Civ. App.) 32 S.W.2d 678. Appellant makes the second point under its general demurrer that appellees' petition did not allege "intent" on the part of appellant and Snider to violate the antitrust laws.
Appellant insists it appeared the contract sued upon was in contravention of the antitrust laws of the state (title 126, R.S. 1925, as amended [Vernon's Ann.Civ.St. arts. 7426-7447]), and that the trial court therefore erred when he held to the contrary and rendered the judgment complained of. In support of its contention, appellant cited National Automatic Machine Co. v. Smith (Tex.Civ.App.) 32 S.W.2d 678, where a contract containing stipulations identically the same as those in the contract here in question (set out in the statement above) was held to be not enforceable because in violation of said laws. The reasons for the holding in that case are stated in the opinion of the court affirming a judgment dismissing the suit brought by the appellant there (appellee in the instant suit).