le the agreement purports to obligate the Buyer to take ratably from the Seller's leases in proportion to takings from other leases from which the Buyer either produces or purchases gas in the Lopeno field, it does not require the Buyer to take any specified quantities of gas from the Lopeno field as a whole, or even to take from the field any specified percentage of its total requirements of gas; that the agreement to take ratably thus becomes completely illusory and is insufficient consideration to support the promise of Seller. In support of its position, the appellant cites the following authorities: Restatement, Contracts, ยง 79; Cold Blast Transportation Co. v. Kansas City Bolt Nut Co., 8 Cir., 114 F. 77, 57 L.R.A. 696; Hutchinson Gas Fuel Co. v. Wichita Natural Gas Co., 8 Cir., 267 F. 35; Southwest Pipe Line Co. v. Empire Natural Gas Co., 8 Cir., 33 F.2d 248; 10 Tex. Jur., 163; W.T. Rawleigh Company v. Land, 115 Tex. 319, 279 S.W. 810; W.T. Rawleigh Co. v. Gober, Tex.Civ.App., 3 S.W.2d 845; El Paso Gas, Electric Light Power Co. v. City of El Paso, 22 Tex. Civ. App. 309, 54 S.W. 798; Davis v. Phillips A. Ryan Lumber Co., Tex.Civ. App., 248 S.W. 448; Texas Produce Exchange v. Sorrell, Tex.Civ.App., 168 S.W. 74. Appellee, on its part, points out that the agreement should, if possible, be construed in such a way as to make the obligations imposed by its terms mutually binding upon the parties; that appellant's contention that the Buyer is not required to take any gas from the Lopeno field is negatived by the first provision of the agreement obligating the Buyer to purchase and receive all of the merchantable gas which may be produced from all gas wells on the premises; that the provisions for ratable withdrawal of gas from the Seller's lands and leaseholds as compared with the withdrawals from lands and leaseholds of the Buyer or of others from whom the Buyer may purchase gas in the Lopeno field were little more than expressions of what was, in any event, required by Texas
W. D. Wilson, of Lubbock, and Callaway Callaway, of Brownwood, for plaintiff in error. On the question of the court's error in refusing to peremptorily instruct the jury in favor of the defendants. Rawleigh Co. v. Gober, 3 S.W.2d 845; Kaliski v. Gray, 28 S.W.2d 931; Great Atlantic Pac. Tea Co. v. Jones, 47 S.W.2d 362. Davidson, Doss McMahon, of Abilene, for defendants in error.
On proposition that plaintiff was an employee. Clement v. Producers' Refining Co., 270 S.W. 206; Johnson v. Breckenridge-Stephens Title Co., 257 S.W. 223; W. T. Rawleigh Co. v. Gober, 3 S.W.2d 845. On proposition of average daily wages.
The Court of Civil Appeals in Rawleigh Co. v. Land, 261 S.W. 186, has fully discussed the question presented here. The Supreme Court expressly approved this opinion (the same case) reported in 115 Tex. 319, 279 S.W. 810. See, also, T. W. Rawleigh Co. v. Harper, Tex.Com.App., 17 S.W.2d 455, and W. T. Rawleigh Co. v. Gober et al., Tex. Civ. App. 3 S.W.2d 845. Finding no error, the judgment of the trial court is affirmed.
That position is untenable since the preliminary contract necessarily entered into and became a part of the sales contract and constituted a part of the consideration therefor. See Edwards County v. Jennings, 89 Tex. 618, 35 S.W. 1053; Rawleigh Co. v. Gober (Tex. Civ. App.) 3 S.W.2d 845; Rawleigh Co. v. Land, 115 Tex. 319, 279 S.W. 810; Scoggins v. Furst Thomas (Tex. Civ. App.) 9 S.W.2d 405. In McMullen v. Hoffman, 174 U.S. 639, 19 S.Ct. 839, 845, 43 L.Ed. 1117, this is said:
This testimony, under the decisions of this state, established a contract in clear violation of our antitrust laws, and an extended discussion of that issue here would serve no useful purpose. See W. T. Rawleigh Co. v. Smith (Tex.Civ.App.) 231 S.W. 799; W. T. Rawleigh Co. v. Marshall (Tex.Civ.App.) 248 S.W. 153; W. T. Rawleigh Co. v. Watson (Tex.Civ.App.) 256 S.W. 955; W. T. Rawleigh Co. v. Hudson (Tex.Civ.App.) 290 S.W. 775; W. T. Rawleigh Co. v. Bradberry (Tex.Civ.App.). 290 S.W. 870; W. T. Rawleigh Co. v. Gober (Tex.Civ.App.) 3 S.W.2d 845; J. R. Watkins Co. v. Fred McMullan. 6 S.W.2d 823, decided by this court on May 2, 1928. Nor is there any conflict in our holding herein with that of the Eastland court in the case of Rawleigh Co. v. Fish (Tex.Civ.App.) 290 S.W. 798, wherein a judgment in favor of the appellant against Fish on a similar contract was sustained by that court.
Articles 7426-7429, Revised Statutes 1925; articles 1632 and 1634, Penal Code 1925; Caddell et al. v. Watkins Medicine Co. (Tex.Civ.App.) 227 S.W. 226; W. T. Rawleigh Co. v. Fitzpatrick et al. (Tex.Civ.App.) 184 S.W. 549; Newby v. Rawleigh Co. (Tex.Civ.App.) 194 S.W. 1173; 41 C.J. p. 146, ยง 133. As the illegal feature of said contract related to the sale at retail in Texas of said goods by Harper after same became his property, situated in Texas, the anti-trust statutes of Texas are applicable. W. T. Rawleigh Co. v. Land, 115 Tex. 319, 279 S.W. 810; Id. (Tex.Civ.App.) 261 S.W. 186; W. T. Rawleigh Co. v. Gober (Tex.Civ.App.) 3 S.W.2d 845; W. T. Rawleigh Co. v. Marshall (Tex.Civ.App.) 248 S.W. 153. And it is immaterial that appellee Harper breached said contract by failing to devote his entire time to the sale of the goods bought from appellant, as he had contracted to do. His so doing could not and did not purge the contract of the taint of illegality. Clearly we think the contract here involved was subject to the anti-trust laws of Texas, and was contrary to public policy and violative of our statutes denouncing trusts, monopolies, and conspiracies against trade. Articles 7426, 7427, and 7428, Revised Civil Statutes 1925; W. T. Rawleigh Co. v. Land et al. (Tex.Com.App.) 279 S.W. 810; Id. (Tex.Civ.App.) 261 S.W. 186; W. T. Rawleigh Co. v. Smith et al. (Tex.Civ.App.) 231 S.W. 799; W. T. Rawleigh Co. v. Hudson et al. (Tex.Civ.App.) 290 S.W. 775; Newby et al. v. W. T. Rawleigh Co. (Tex.Civ.App.) 194 S.W. 1173; W. T. Rawleigh Co. v. Bradberry (Tex.Civ.App.) 290 S.W. 870; Whisenant et al. v. Shores-Mueller Co. (Tex.Civ.App