Responding to the questions submitted for our decision, we say:
1. That the sending of the cotton in question to the warehouse of appellant did amount to a contract to pay the charge of thirty cents before removal of the cotton uncompressed; and that this is so notwithstanding appellant had always protested against that charge, and although appellant sent his cotton there for storage in the ordinary course of business, and although, save this and other like warehouses carried on by compress companies making like charges, there was no other place for the storage of cotton, and it was, to that extent, a matter of necessity to send it to one of those warehouses. Most of the .points suggested by counsel for appellant under this head are settled in the case of Southern Steamship Go. v. Sparks, 22 Tex., 659. The court say: “ If a tavern-keeper, warehouseman or wharfinger specifies his rates of charge, and gives notice to a customer in advance, and the latter afterwards puts up at his tavern, or makes use of his warehouse or wharf, he thereby assents to the proposed charges, and cannot refuse to pay them, upon the ground that they are more than is reasonable or customary. By the use of the wharf, after notice of plaintiff’s rates of charges, the defendants impliedly contracted to pay them, and they cannot now disaffirm their contract.”
2. That contract could be enforced, being supported by a valid consideration, viz., the same consideration which supported the charge of forty cents. The contract in effect was, that, if the cotton was removed uncompressed, the charge for storage should be increased thirty cents.
3. Under its charter, appellee rightfully carried on the business of warehouseman, only in connection with, and as an adjunct to, its main business of compressing cotton, and the cotton was delivered to it, not exclusively in its capacity as a warehouseman, but also in its capacity as a compress company, and subject to its known and uniform *227charges. The compress company was under no obligation, by reason of its charter or otherwise, to store cotton not designed to be compressed on the same terms as cotton designed to be both stored and compressed.
4. Such a contract is not in restraint of trade, or void as against public policy. This question was settled in the case of Ladd v. The S. C. P. & M. Co., 53 Tex., 172. In that case it was held that “the business of warehousing and compressing cotton is free to every one who wishes to engage in it. Also held that, “in the absence of legislation to that effect, a party who has not subjected his property and services to public use by the character of the business in which he is engaged, does not do so by reason of combination with others in a like business, though he is enabled thereby to exact from those who employ him unreasonable and extortionate charges for the services rendered.” To our minds these propositions constitute a conclusive and satisfactory answer to the claim that the contract was against public policy.
The circumstances under which Seeligson sent his cotton to appellee’s warehouse do not justify the inference that he sent it there otherwise than voluntarily. The necessity under which he labored amounted to no more than this: that he found it to his interest to store his cotton in a warehouse provided for that purpose; and no such storage was to be had on better terms than those offered by appellee. •
His general protest against such charges for cotton delivered uncompressed did not weaken the inference that he sent this cotton to be stored on the usual and well-known terms on which alone appellee was willing to receive it. It does not appear that those terms were unreasonable; but even if they were, having assented to them by his acts, he could not afterwards repudiate his contract. 22 Tex., supra.
Like one who receives and stores seed cotton at his gin *228house for the purpose of ginning it and packing it in bales, the storage of the seed cotton in the gin house and of the lint cotton in the lint room, being but necessary and subordinate incidents to the main business, so here, the storage provided for cotton was designed to be used primarily in connection with the business of compressing, and to promote the success of that business. The owner of the gin house and ordinary cotton press can afford to charge less in proportion where he stores, gins and bales,'than he could if called on to store deed cotton alone, or to gin it and store the lint. Having prepared himself with facilities for changing the seed cotton into lint cotton in bales, he might reasonably regulate his charges so as to discourage the use of his gin house as a mere storehouse for cotton. His interest requires him to give the preference to customers who wish their cotton stored for the purpose of being ginned and baled. The compress company but exercises a similar privilege when it adds to its charge for storage where cotton is delivered uncompressed. It is not a charge for compressing not done, but is an additional charge for storage; because when called on to furnish nothing more than storage, their interest is to add to their ordinary charge therefor, so as to encourage customers who wish to use both their warehouse and their compress. We regard the questions raised in this case as settled in the case of Southern Steamship Company v. Sparks (22.Tex.), and Ladd v. S. C. P. & M. Co., 53 Tex., 172; and in accordance with the principles laid down in those cases the judgment is affirmed.
[Opinion delivered February 7, 1882.]Affirmed.