lant fails to purchase the beer manufactured | Teague, Tex.; that said goods when they arby the appellee exclusively or refuses to pay rived were stored in a warehouse at Teague, for the goods purchased under the contract Tex., and offered for sale in said city, and on demand or to perform any of the condi- that the shipment of beer involved in this tions on his part to be performed, the appel- suit did not constitute interstate commerce." lee shall have the right and privilege to im- Notwithstanding the unequivocal terms of mediately cancel and terminate the contract. the written contract declared on and the foreAt the time of the execution of said con- going findings of fact, the court concluded, as tract, the appellants Powell and Beasley, as a matter of law, that said contract was not sureties, joined the appellant V. S. Carroll in violation of the anti-trust laws of this in a bond or writing obligatory, in the sum state. In so concluding we think the court of $2,000, whereby they jointly and severally erred and that such error and the rendition guaranteed to appellee the faithful perform- of the judgment, as a result thereof, is "an ance of said contract by the said Carroll. error in law apparent on the face of the recThe petition alleges that the appellee is a ord." Article 7798 of Vernon's Sayles' Civil private corporation duly incorporated under Statutes, declares that: the laws of the state of Indiana with its principal office and place of business in the city of Evansville, state of Indiana. It alleges the terms of the contract made the basis of the suit and the execution of said bond guaranteeing its faithful performance, making them exhibits. It also alleges that there is a balance of $698.75 due appellee for beer purchased under said contract and appellant Carroll's failure and refusal to pay the same, but it does not allege that appellee had a permit to do business in Texas. The defendants answered by general demurrer, general denial and specially, among other things, that the contract set out in the appellee's petition shows upon its face that it is in violation of our anti-trust statutes and therefore absolutely void. A trial was had without the intervention of a jury, and judgment rendered in favor of appellee for the amount sued for, and the appellants appealed.

[1-2] The appellee has filed no brief in this court and the case is before us on brief of appellants. There is no statement of facts in the record, but the court, among other things, which, for the purposes of this opinion, we deem unnecessary to state, found, as shown by conclusions of fact filed at the request of appellants, that the contracts made the basis of the suit were executed by appellants and appellee, and that appellant Carroll therein agreed to purchase of the appellee "exclusively all beers which he should require in his business and sell in Teague, Tex., and surrounding country, at the price set out and agreed upon in said contract; that on June 14, 1914, appellee sold and delivered to appellant Carroll certain beers of the cash value of $942.50; that thereafter the said Carroll paid thereon the sum of $243.75, leaving a balance of $698.75 still due; that in order to secure the payment of the purchase price of such beer as was sold under the contract in question the said Carroll made and executed a bond in the sum of $2,000, with L. H. Powell and J. J. Beasley, the other appellants herein, as sureties thereon. The court further found that "the goods, consisting of beers, sold to appellant Carroll under the contract entered into between him

"Either or any of the following acts shall constitute a conspiracy in restraint of trade: 1. Where any two or more persons, firms, corporations or association of persons, who are engaged in buying or selling any article of merchandise, produce or any commodity, enter into an agreement or understanding to refuse to buy tion or association of persons, any article of from or sell to any other person, firm, corporamerchandise, produce or commodity."

Article 7799 of said statute declares that: "Any and all trusts, monopolies, and conspiracies in restraint of trade, as defined by our statutes, are prohibited and declared to be illegal."

And article 7807 declares that, any contract or agreement in violation of the provision of the chapter of the statute in relation to trust and conspiracies against trade shall be absolutely void and not enforceable either in law or equity.

Clearly the contract entered into by and between the appellant Carroll and the appellee, Brewing Company, constituted, under the first article of the statute quoted a conspiracy in restraint of trade. It obligated and bound the appellant Carroll to handle and sell the products (beer) of appellee exclusively and not to sell any beer either in bottles or draught manufactured by any other person, firm, or corporation. Thus the contract by its very terms violates the statute quoted, which denies to persons or corporations engaged in buying or selling any article of merchandise, produce, or commodity, the right to enter into an agreement to refuse to buy from any other person, firm, or corporation any article of merchandise, produce, or commodity. If such an agreement is entered into it is declared by said statute to be a conspiracy in restraint of trade; by the second to be illegal; and by the third any such contract is declared to be absolutely void. The trial court having found that the shipment of beer involved did not constitute interstate commerce, presumably upon evidence justifying such finding, no question of interstate commerce arises, and it is therefore apparent that the contract cannot be the foundation of the judgment rendered in appellee's favor. Texas Brewing Co. v. Templeman, 90 Tex. 277, 38 S. W. 27.

Appellants contend, in effect, that the court

(1) Because it appears from the petition that, $943.03, for the construction of a residence appellee is a foreign corporation and it is owned by appellant. Appellant answered adnot alleged that it had secured a permit to mitting a balance due amounting to $423.37, do business in Texas; (2) because the con- but claimed damages against appellee for tract shows upon its face that it constitutes failure to construct said building according a conspiracy in restraint of trade in violation to contract and for delay in finishing the of our statute, and therefore illegal and void. building within the time agreed upon. SpeIn the view we take of the case, as express- cial issues were submitted to the jury, and ed above, we need not consider and discuss upon the return of their verdict thereon these questions, as presented in the brief of judgment was rendered in favor of appelappellants. The trial court having determin- lee for $666.03. A motion for new trial by ed from the evidence adduced upon the trial appellant having been overruled, he appealed. below, and which has not been brought before this court by a statement of facts, that the goods sold under the contract, were sold and delivered to appellant Carroll, at Teague, Tex., and was not a transaction involving interstate commerce, committed fundamental error in not rendering judgment in favor of appellants. Such being the nature of the error, it is unnecessary to discuss any other question in the case, and it becomes our duty to set aside the judgment rendered in favor of appellee and here render the judgment that should have been rendered in the court below.

2. DAMAGES 78- BUILDING CONTRACT
LIQUIDATED DAMAGES-PENALTY.
A provision of a building contract that the
contractor should forfeit $5 for each day after a
certain date that the building remained uncom-
pleted, was a provision for liquidated damages
rather than for a penalty, where it appeared
that the damages were difficult of ascertainment,
and that the sum stipulated for was not grossly
disproportionate to the amount of the actual
damages.

[Ed. Note. For other cases, see Damages,
Cent. Dig. §§ 157-163; Dec. Dig. 78.]
Appeal from District Court, Kaufman
County; F. L. Hawkins, Judge.

Action by George Williams against Joe R. Gillespie. From judgment for plaintiff, defendant appeals. Reversed and remanded.

Lee R. Stroud, of Kaufman, for appellant. Huffmaster & Huffmaster, of Kaufman, for appellee.

RAINEY, C. J. Appellee Williams sued appellant Gillespie for a balance due him of

[1] The first and second assignments complain of the refusal of the court to submit special charges to the jury. The appellant failed to except to this action of the court in proper time, therefore these assignments will not be considered by this court.

[2] In the contract between the parties for the building of the residence and after providing for the completion of the said building, by May 1, 1913, it further provides that:

"And for each and every day after the first day of May that the building shall remain uncompleted the said Williams shall forfeit to said Gillespie the sum of $5.00, to be deducted from the contract price hereinafter stated."

The question arose on this provision whether it constituted and fixed an absolute sum in favor of appellant, or was it a mere penalty, i. e., the amount of damages sustained by appellant to be ascertained by the evidence? The appellant contends that the contract under the evidence clearly shows that he is entitled to the sum specified as liquidated damages, while, on the other hand, the appellee contends that appellant was only entitled to such sum as measured by the rental value of the premises caused by the delay. Appellant pleaded in the alternative for damages in the event the court held that under the contract he was not entitled to forfeiture as stipulated in the contract. The trial court evidently held that the evidence only raised the question as to damages, and that was to be measured by the rental value of the house. This, we think, is shown by the issue submitted on this question, which was, "What was the reasonable rental value of the house in question from May 1 to September 5, 1913?" This was the only issue presented by the court relating to the question of forfeiture. In this we think the court erred.

The provision of the contract specifically states that the forfeit for delay shall be $5 per day, if not completed by May 1st. Whether this fixes the amount as liquidated damages or as a penalty is a question for the court's determination, and

"in construing this contract in that respect, the subject-matter contained in it indicates the intention of the parties." Farrar v. Beeman, 63

Tex. 175.

We think it appears from the evidence that the damages that flowed to appellant were such as were not easy of ascertainment,

and the sum fixed in the contract will be presumed to be a fair estimate for the compensation for damages that would accrue to appellee in case of delay. The evidence shows that there was no market rental value of such houses in Kaufman county; that there was inconvenience and discomfort incurred by appellant caused by the delay in not completing the building and by reason of loss of time and worry in superintending the construction of the building after the 1st of May and until September 5th. It would be hard to estimate in money what the amount of damage would be under such circumstances. We do not think it can be said that the sum fixed bears such a proportion to the actual loss as to construe the contract as fixing a penalty. In Collier V. Betterton, 87 Tex. 440, 29 S. W. 467, where the consideration for constructing a building was $5,670, it was held that $10 a day was approximately a very large sum to pay for the rent of a house. In this case, however, the consideration for construction was $8,200, and only $5 a day fixed for delay. There is quite a difference between the two. Besides, in that case, there was no evidence as to damages at all, while there was evidence of damages as to matters other than rent in the instant case. If appellant agreed that the beginning of the work should be delayed until January 25th, instead of December 26th, then appellee would be entitled to that much longer time for the completion of the house and the appellant allowed $5 a day for the time delay after such reduction.

Adams & Stennis, of Dallas, for relators. J. L. Gammon, of Waxahachie, for respondents.

RAINEY, C. J. [1] This is a motion for rehearing of an application for a writ of mandamus in cause No. 6581, 174 S. W. 296, which application was refused at the last term of this court. This motion was filed after the period fixed for filing of motions for rehearing had expired. But it is argued that the refusal was based upon false and perjured testimony, which petitioners claim can be shown on another hearing. This would be good grounds for setting aside the former judgment in this matter and a rehearing thereof, if the petition itself did not show it would be a useless proceeding. The former application was founded on the charge that Dearborn, sheriff, had refused to levy an execution duly issued by this court on certain lands pointed out by this applicant, etc. The application for rehearing shows that said executions had been subsequently placed in the hands of a constable, had been duly levied on the said land and advertised for sale; that an injunction had been procured from the district court restraining the sale of said land, by virtue of said execution, which injunction was upon hearing perpetuated by said district court and notice of appeal given by applicant. The judgment of the district court perpetuating the injunction being final, it precludes the issue of the writ of mandamus by this court until said judgment is set aside and annulled.

The court having failed to construe the contract according to its terms, and the evi-a dence not showing circumstances warranting a different construction, we think the judgment not warranted by the evidence, and

it is reversed and the cause remanded.

WILSON et al. v. DEARBORN et al. (No. 6755.)

(Court of Civil Appeals of Texas. Oct. 30, 1915.)

1. MANDAMUS 6-CONFLICT WITH INJUNC

TION.

Where the trial court made final an order enjoining a sale of land on execution, mandamus to compel the sheriff to levy execution will not be issued until the order is set aside.

[2] The application prays in the event that

rehearing is not granted on the former application, that a mandamus be now issued against Carl Tankersley, district clerk, requiring him to approve an appeal bond ex

ecuted in the injunction proceeding by applicants as principal, with P. C. Wylie and Mary Wilson as sureties. It was shown on the hearing of this issue that Mary Wilson, one of said sureties on said appeal bond, was a married woman, the wife of J. B. WilDallas. son, and the refusal to approve said appeal bond was on account of Mary Wilson being a married woman, and therefore not a proper surety under the law. The question then arises, Can a married woman legally bind herself as surety on an appeal bond with the husband's consent, which was the case in this instance, unless in a matter involving her contract for necessaries or her separate property? We think not. In the injunction proceedings Mary Wilson's separate property, nor her rights as a married woman, were in anyway involved. Under the law a married woman cannot make a valid contract binding upon her unless for necessaries for herself and children, or for the benefit of her separate estate. The judgment appealed from in no way involving a contract by her for necessaries for herself nor for the benefit of

[Ed. Note. For other cases, see Mandamus, Cent. Dig. § 36; Dec. Dig. 6.] 2. HUSBAND AND WIFE

WOMEN-APPEAL BONDS.

87-MARRIED

A married woman, not even with the consent of her husband, can legally bind herself as surety on an appeal bond, and a bond on which she is a surety may be refused.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 346-353, 798; Dec. Dig. 87.]

On motion for rehearing. Motion denied.
For former opinion, see 174 S. W. 296.

her separate property, and she incurred no | Judgment for plaintiff, and defendants apliability on the appeal bond.

In the case of Cruger v. McCracken, 87 Tex. 584, 30 S. W. 537, it was held that the signing by the wife of an appeal bond of the husband was void, which ruling is directly in point in this case, and adverse to the appellant's contention.

peal. Reversed, and cause remanded.

T. H. Ridgeway, of San Antonio, for appellants. Geo. M. Mayer, of San Antonio, for

appellee.

MOURSUND, J. Appellee Seng sued appellants upon five promissory notes, and to foreclose a chattel mortgage upon a cement mixer and appliances. The notes were payable to Waterloo Cement Machinery Corporation, and indorsed by said company to appellee, who was agent for the company in the transaction involving the sale of the cement mixer to appellants and the execution of the

As we hold under the law that Mary Wilson is not a proper surety on the appeal bond, should we hold that the writ of mandamus should issue against the clerk? We think not. Our statute provides that to perfect an appeal a bond with two good and sufficient sureties should be tendered to the clerk, who shall approve the same. The duty of ap-notes and mortgage. proving said appeal bond is imposed upon the clerk when the two sureties are good and sufficient. Such being his duty, he would violate the law to approve a bond not complying with its requirements. Mary Wilson being a married woman, she is not qualified under the circumstances of this case, and the clerk was justified in not approving the bond, and the mandamus is denied.

The motion is overruled.

BRADEN-ZANDER CONST. CO. et al. v.
SENG. (No. 5531.)

Appellants pleaded that the chattel mortgage contained the following provision:

"It is understood by me that you guarantee that this mixer has the capacity claimed above. I agree to give this machine a thorough and impartial trial within ten days after receiving it. If it has not the capacity claimed above, or I am not then fully satisfied with it in every other particular, I am to have the right to refuse it by notifying you within said time of my intention to do so, in which event you are to give me shipping instructions and refund to me all payments made by me on said machine, including freight."

They pleaded further that immediately after receiving said mixer they gave it a fair trial, and found that it did not have the ca

(Court of Civil Appeals of Texas. San Anto- pacity of five cubic feet per batch, and would nio. Nov. 10, 1915.) 288-WARRANTY-WAIVER BY RE

1. SALES

TENTION Of Goods. Where a chattel mortgage securing the price of a cement mixer contained the provision that the buyers agreed to give the machine a fair trial within ten days after receiving it, and, if it was found not to have the claimed capacity, or they were not fully satisfied with it in every respect, they should have the right to refuse it by notifying the seller's agent of their intention to do so, the buyers, by not rejecting the mixer for breach of warranty as to its capacity within the ten-day period, waived their right to thereafter reject on such ground.

[Ed. Note.-For other cases, see Sales, Cent. Dig. $ 817-823; Dec. Dig. 288.]

not perform the work as warranted by the company, and that they were not then fully satisfied with it in every other particular; that they notified Seng and the company of these facts within ten days from the time they received the machinery; that they were prevailed upon by Seng to keep the mixer and give it further trials, and pursuant to his requests they did retain the same and gave it numerous trials, but always found that it did not have the capacity warranted, and they were dissatisfied with it, and they so notified Seng; that at Seng's request they tried it up to some time in July, 1913, when they refused to try it further.

The court instructed a verdict in favor of appellee.

2. SALES 287-CONTRACT-MODIFICATION. Where the chattel mortgage, executed by the buyers of a cement mixer to secure the price, stipulated that they should reject for breach of [1] There was evidence on the part of apwarranty as to capacity within ten days, and pellants raising the issue whether the mixer the agent of the seller, by his requests and prom- had the capacity warranted, but, as they ises that they might return it, if unsatisfactory, later than that, caused the buyers to forego pleaded they knew within the ten-day period their right to reject within such period, such that it did not have such capacity, it seems agent, in suit on the purchase-money notes as- they waived their right to reject it on that signed him by his principal, the seller of the mixer, could not be heard to say that he was not ground by failing to do so within ten days. bound to permit rejection of the mixer after No amount of trials could increase the cathe ten-day period upon its failing to give satis-pacity thereof, and it cannot be contended faction, since a subsequent agreement altering that any persuasions or requests on the part the terms of a written contract may be made by by parol. of Seng caused appellants to fail to reject the mixer on the ground of want of capacity of five cubic feet per batch.

[Ed. Note. For other cases, see Sales, Cent. Dig. §§ 811-816; Dec. Dig. 287.]

Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.

Action by W. S. Seng against the BradenZander Construction Company and others.

On the issue whether the mixer was satisfactory Zander testified:

"The notes and mortgage were not executed on the 11th day of May; they were executed a few days after that. After Joe Slavin got the

A charge on the duty of a railroad comThe judgment is reversed, and the cause pany to give the crossing signals prescribed by remanded.

Vernon's Sayles' Ann. Civ. St. 1914, art. 6603, declaring that every railroad company shall be liable to the owner for the value of all stock killed or injured by the locomotives and cars of such company in running over their respective railways, that such liability shall exist in counties which adopt the stock law, prohibiting the running at large of domestic ani- a