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PATRIZI v. MCANINCH (05/20/53)

May 20, 1953

PATRIZI
v.
MCANINCH



Author: Hughes

HUGHES, Justice.

This was a suit by appellee, L. L. McAninch, against Victor J. Patrizi for an accounting and for judgment for the amount found to be due under a contract between the parties relating to the sale of a frozen custard making machine, appellee being the seller and appellant the purchaser.

A non-jury trial resulted in judgment for appellee for the sum of $2,069 with six per cent interest from the date of the judgment.

No findings of fact or conclusions of law were requested of or made by the trial court.

The contract between the parties is as follows:

"Agreement

"Agreement made this 26th. day of May, 1948, by and between L. L. McAninch, hereinafter referred to as First Party, and Victor J. Patrizi hereinafter referred to as Second Party.

"Whereas, First Party has a written agreement dated 1st. May, 1948, with Taylor Freezer Corporation, the manufacturer of Zest-O-Mat machines, in which the Taylor Freezer Corporation sells to First Party Zest-O-Mat machine, serial number 1003, subject, however, to certain patent rights owned by Louis A. M. Phelan, and to payment of certain royalties, and in which Taylor Freezer Corporation agrees, for a period of 8 years from date, not to sell or lease any like Zest-O-Mat machines to any person, firm or corporation, other than First Party, for use or operation within a territory described as follows: That area within the present City Limits of Beaumont, Texas that is within a one mile radius of the location known as 870-South 11th. Street, and in which Taylor Freezer Corporation requires that First Party, or his assigns, shall use the name "ZESTO" in the advertising and sale of products manufactured in the above mentioned machine.

"Whereas, Second Party is desirous of purchasing a Zest-O-Mat machine from First Party, this agreement

"Witnesseth:

"1. That First Party hereby sells and assigns to Second Party Zest-O-Mat machine bearing serial number 1003.

"2. That First Party agrees for a period of (8) years from date, not to sell or lease to any person, firm or corporation other than Second Party, or cause to be used in any other manner whatsoever, any like Zest-O-Mat machine within the above described territory.

[]

"3. That First Party agrees that during the term of this agreement, Second Party shall use the name "ZESTO" in the advertising and sale of products manufactured in the above mentioned machine, and that Second Party will use only uniformly high quality ingredients, according to the formula approved by the Taylor Freezer Corporation. Second Party further agrees to use ...


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