Bogata Mercantile v. Outcault Advertising , 184 S.W. 333 ( 1916 )

The transaction between appellant and appellee evidenced by the contract was interstate commerce, and hence not subject to the anti-trust laws of this state. Albertype Co. v. Gust Feist Co., 102 Tex. 219,114 S.W. 791; Eclipse Paint Mfg. Co. v. New Process Roofing Supply Co., 55 Tex. Civ. App. 553, 120 S.W. 532; Moroney Hardware Co. v. Goodwin Pottery Co., 120 S.W. 1088; McCall Co. v. Stiff Dry Goods Co., 142 S.W. 661; Koch Vegetable Tea Co. v. Malone, 163 S.W. 663. Therefore the first and second assignments are overruled.

There was evidence to support the finding involved in the judgment that appellee had received and accepted appellant's order at the time it received the latter's telegram of September 27, 1913. If, therefore, that telegram should be construed as one countermanding the order — and we think it should not be so construed — it did not have the effect appellant claims it had. Appellee's acceptance of the order completed the contract between the parties, and countermanding the order thereafterwards did not relieve appellant of the consequences the law attached to its breach of its contract. Therefore the fourth assignment is overruled.

There was testimony to support a finding that the "little druggist advertising service," which appellee bound itself to furnish to the Bogata Drug Company, was not the same as the "service de luxe," which it bound itself to furnish to appellant. Therefore the fifth assignment, in which appellant complains that it appeared that appellee violated its contract with it by entering into a similar one with the Bogata Drug Company, is overruled.

What has been said disposes of all the assignments except the third, in support of which appellant contends that the measure of appellee's damages was not the sum it agreed to pay for the use of the advertising material, as determined by the court, but was the difference between that sum and the value of the material in the condition it was in at the time the order for same was countermanded. The fair inference from the testimony of the witness Hadden, set out in the statement above, was that appellee had done all it was to do to prepare the material for the use appellant was to make of same before it received appellant's letter of September 27, 1913, countermanding the order. The fair inference from the testimony of the witness Peyton was that the material as so prepared could have been used only by appellant for advertising purposes, and therefore was of no value for such purposes to any one else. Therefore, it seems to us, it prima facie appeared that appellee was entitled to recover as damages for the breach by appellant of its contract the sum it had agreed to pay for the use of the material. The contract was not one for the sale of the material, as appellant treats it. It was for the hire thereof to appellant for a period of one year. What appellant was entitled to was the use of the material during that period. What appellee was entitled to was the material at the expiration of that period and the sum appellant agreed to pay for its use to that time. As appellee was entitled to the material after it had been used by appellant during the time agreed upon, it prima facie appeared, we think, that what it lost as a result of appellant's refusal to receive and use the material as agreed upon was the sum appellant undertook by its contract to pay for the use thereof. It so appearing, as we understand the rule, the burden was on appellant to show, and it did not, that, when it breached the contract appellee might have pursued, but did not, a course which would have mitigated the damage it suffered. Jefferson N.W. Ry. Co. v. Dresson,43 Tex. Civ. App. 282, 96 S.W. 63; Porter v. Burkett, 65 Tex. 383.

The judgment is affirmed.