WILLIAMS v. AMERICAN CHEWING GUM CO., 192 F. 917

PARDEE, Circuit Judge. Notwithstanding the original contract between the American Chewing Gum Company and T. C. Williams was illegal and contrary to public policy, in that it provided for and called for services in carrying on a raffle or lottery, the American Chewing Gum Company had a right to rescind and disaffirm said contract, and thereupon demand a return of all goods, wares, and merchandise delivered to said Williams under said contract on hand and unsold at the time of rescission (Pullman Car Company v. Central Transportation Co., 171 U. S. 138, 18 Sup. Ct. 808, 43 L. Ed. 108) ; and in case the said T. C.

Williams, after notice of such rescission and demand, converted to his own use or otherwise disposed of said goods so remaining on hand at the time of rescission, then, in the present suit, under the pleadings as perfected and the evidence submitted on the trial, the American Chewing Gum Company was entitled to judgment against the defendant for the reasonable cash .market value of the goods on hand at the time of the demand made for the return of the same.

The record in this case shows that the value of the goods on hand at the time of the demand for the return of same after the rescission of the contract was the measure of recovery. It does not appear that the American Chewing Gum Company made any contract with T. C. Williams in the state of Texas, or transacted any business in the state of Texas, other than shipping goods from Missouri and Tennessee to Texas, to be sold by Williams as agent on commission.

As this case comes to this court, it is not a suit to recover in or upon any contract made in the state of Texas, or on or for any business transacted in the state of Texas. It was therefore immaterial whether the American Chewing Gum Company had a license or permit from the state of Texas to do business in that state. We find no reversible error, either in the rulings on the pleadings or in giving or refusing instructions to the jury. The judgment of the Circuit Court is affirmed.