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bring non-union shops into the trade, does not necessarily imply that these officers shall use other than lawful means, and the fact alone that a member contributes money to the support of the organization does not make him. responsible as a principal for unlawful acts of the officers or their agents, but in order that his contributions shall have such effect something more must be shown, as that unlawful means had been so frequently used with the express or tacit approval of the association that its agents were warranted in assuming that they might use such means, and that the association and its individual members would approve or tolerate such use, whenever the end sought to be attained might be best attained thereby. Lawlor v. Loewe, 187 F., 526.

4269 87. For Damages Under the Anti-Trust and Interstate Commerce

Acts.—Where a count in a complaint against an interstate carrier alleged a discrimination in rates against plaintiff, in that defendant charged plaintiff the full tariff rates and permitted plaintiff's competitors by a device to transport their similar products at a lower rate, it stated a cause of action for violating the Interstate Commerce Act, prohibiting discrimination, and was therefore not demurrable, though it also insufficiently attempted to allege a combination or conspiracy, on defendant's part, with certain other railroads to restrain trade, and to recover treble damages under the Sherman Anti-Trust Act. American Union Coal Co. v. Penna R. R. Co., 159 F., 279.

3-314

II. DEFENSES.

1. Indefiniteness, duplicity. 88. Indefiniteness.--In an action by a corporation for the infringe

ment of elevator patents, an answer alleging as a defense that the plaintiff is an unlawful combination in restraint of trade and in violation of the Sherman Anti-Trust Law but which fails to state who are in the combination in the agreement characterized as unlawful, and does not disclose fully and in detail that the combination was entered into after the act took effect, and all the facts necessary to show its illegality, is insufficient for indefiniteness. Otis Elevator Co. v. Geiger, 107 F., 131.

2-66 89. Duplicity.-A declaration in an action brought under section 7

of the Sherman Anti-Trust Act to recover damages for a violation of section 1 of the act, which alleges in a single count that defendant entered into a contract, combination, and conspiracy” in restraint of trade, is bad for duplicity. Rice v. Standard Oil Co., 134 F., 464.

2—633 90. Same.—The Anti-Trust Act makes a distinction between a con

tract and a combination or conspiracy in restraint of trade. Ib. MULTIFARIOUSNESS. See PLEADING AND PRACTICE,

91. When General Averment of Injury Insufficient.-Where, in an

action by a stockholder of a corporation against defendant, the only injury alleged was to the corporation, a general averment that plaintiff' had been greatly injured in his business and property was insufficient as an allegation of injury to plaintiff distinct from that to the corporation. Ames v. American Tel. & Tel. Co., 166 F., 822.

3-588

2. Contract in violation of Anti-Trust Act, or of an act of Congress.

92. The defense that a contract is in violation of the Anti-Trust

Act, which makes illegal every contract violative of its provisions, may be set up by a private individual when sued thereon, and, if proved constitutes a good defense to the action. Bement v. National Harrow Co., 186 U. S., 70.

2–170

93. Same.-Anyone sued upon a contract may set up as a defense

that it is a violation of an act of Congress. Ib. 2-169

3. Illegal combination-Purchases from, services. 94. Payment for Services can not be Avoided because Performed by

a Trust-Towage.—One who requests and accepts the services of a tug for towage purposes can not escape paying the reasonable value of the services rendered on the ground that the tug owners are members of an association which is illegal under the act of July 2, 1890, relating to trusts and

monopolies. The Charles E. Wisewall, 74 F., 802. 1-608

Affirmed, 86 F., 671 (1–850). 95. Payment of Note for Goods Purchased can not be Avoided be

cause Bought from a Trust.-A note made for a balance due on goods bought from a corporation can not be avoided merely because the latter is a trust organized to create and carry out restrictions in trade contrary to the Anti-Trust Act, as that only covers contracts which are themselves in restraint of trade, and does not affect those which “merely indirectly, remotely, incidentally, or collaterally regulate, to a greater or less degree, interstate commerce between the

States." Union Sewer-Pipe Co. v. Connolly, 99 F., 354. 241 Affirmed, 184 U. S., 540 (2—118).

See also Dennehy v. McNulta, 86 F., 825 (1-885). 96. A Contract for the sale of merchandise is not rendered illegal

by the fact that the selling corporation is a trust or monopoly organized in violation of law, either Federal or State; the contract of sale being collateral and having no direct relation to the unlawful scheme or combination. Chicago Wall Paper Mills v. General Paper Co., 147 F., 491.

2-1027 See also Continental Wall Paper Co. v. Lewis Voight & Sons

Co., 148 F., 940 (3—44); 212 U. S., 227 (3–480).

97. Recovery on Collateral Contract by Member of Combination in

Restraint of Interstate Trade.—The act of July 2, 1890, section 1, does not invalidate or prevent a recovery for the breach of a collateral contract for the manufacture and sale of goods by a member of a combination formed for the purpose of restraining interstate trade in such goods. Hadley Dean Plate Glass Co. v. Highland Glass Co., 143 F., 242.

2—995

4. Patents-Illegal combination.

98. Infringement of Patent-No Defense that the Owner is an

Illegal Corporation under Anti-Trust Law.-The fact that the owner of a patent is a corporation alleged to have been formed in violation of the Anti-Trust Law, and that the patent is alleged to have been assigned to it in furtherance of the illegal purpose to create a monopoly and control the price of an article of commerce, is not available to an infringer of such patent to defeat a suit for the infringement. National Folding.Bor & Paper Co. v. Robertson, 99 F., 985.

2-4 99. Same.-In an action by a corporation for the infringement of

elevator patents, a private defendant was not entitled to urge as a defense that plaintiff was a corporation organized merely for the purpose of holding the legal title to various elevator patents alleging to have been infringed, for the purpose of controlling sales and enhancing prices of elevators and apparatus, without itself engaging in the manufacture and sale of such appliances, in violation of the Sherman Anti-Trust Law, since until the United States has acted and sought to prosecute the plaintiff for violation of such act an infringer of the plaintiff's patent will not be permitted to raise such issue as a defense thereto. Otis Elevator Co. v. Geiger, 107 F., 131.

2-66 100. Infringement Suit can not be Maintained by Combination of

Patent Owners against Assignor.-A combination among manufacturers of spring-tooth harrows, whereby a corporation, organized for the purpose, becomes the assignee of all patents owned by the various manufacturers, and executes licenses to them, so as to control the entire business and enhance prices, is void both as to the assignments and licenses, so that the corporation can not maintain a suit against one of its assignors who violates the agreement, for infringe

ment. National Harrow Co. v. Hench, 84 F., 226. 1-746 See also National Harrow Co. v. Quick, 67 F., 130 (1–443);

and ACTIONS AND DEFENSES 78-80. 101. Claim of Unlawful Combination no Defense to Suit for Infringe

ment of Trade-Mark.-The claim that a conveyance by one

2

manufacturing corporation to another of all its property,
including its trade-marks, trade-names, brands, and labels,
contains a provision in violation of the Anti-Trust Law of
the United States, is not available as a defense by another
manufacturer when sued for infringement or unfair com-
petition in respect to a trade-mark, brand, or label, where
it is shown that the same has been continuously used by the
grantee as its own, since a time prior to the commencement
of the alleged infringement or unfair imitation. Reynolds

Tobacco Co. v. Allen Bros. Tobacco Co., 151 F., 833. 3-154 102. Suit for Infringement-Defenses.-That a complainant is itself,

or is a member of, a combination in violation of the Federal
anti-trust statute, is not a defense available in an action for
the infringement of a patent, nor does it show a defect in
complainant's title. Motion Picture Patents Co. v. Lacmmle,
178 F., 105.

3-765 103. Suit for Infringement.-That the owner of a patent is a party

to an illegal combination in restraint of trade does not de-
prive him of the right to sue for infringement of his patent.

Virtue v. Creamery Package Mfg. Co., 179 F., 119. 3-301 104. Same.-Evidence held insufficient to establish a combination

or conspiracy in restraint of interstate trade or commerce
between two defendants, each of whom brought a suit
against plaintiff for infringement of a different patent, which
would sustain an action by plaintiff for treble damages under
the Sherman Anti-Trust Act. Ib.

3-801 105. Suit for Infringement-Allegation of Unlawful Conspiracy.

It is no defense to a suit for infringement of a patent that
the complainant and third persons have entered into an
illegal combination or conspiracy in restraint of trade; and
such defense is not aided by an allegation in the answer
that the suit is not brought in good faith to prevent in-
fringement, but for the purpose of making such conspiracy
effective. Motion Picture Patents Co. v. Ullman, 186 F., 175.

447
5. Agreement not to engage in business.

106. Suit to Enforce.-In a suit to enjoin a defendant from violating

a contract by which for a valuable consideration he covenanted not to engage in business for himself or another in competition with that of complainant for a term of years, and to enjoin a co-defendant from employing his services in a competing business, it is no defense that his co-defendant hired him in ignorance of the contract, and will suffer damage if deprived of his services. A. Booth & Co. v. Davis, 127 F., 875.

2-319 Affirmed, 131 F., 31 (2-526). See also Robinson v. Suburban Brick Co., 127 F., 804 (24312).

6. Generally.

107. That Combination Has Not Been Injurious to the Public.-It is

no defense to a suit to dissolve a combination as illegal, under the Anti-Trust Law, that it has not been productive of injury to the public or even that it has been beneficial, by enabling the combination to compete for business in a wider

field. U. 8. v. Chesapeake & 0. Fuel Co., 105 F., 93. 2-34

Affirmed, 115 F., 610 (2–151). 108. That Combination Is in the Form of a Corporation or Holding

Company.—The fact that the purpose of an illegal combina tion between stockholders of two railroad companies operating parallel and competing interstate lines, to secure unity of interest and control of such companies and to preyent competition, has been accomplished by the formation of a corporation which has acquired the ownership of a majority of the stock of each of the companies, can not be urged to defeat a suit by the United States to restrain the exercise of the power so illegally acquired by the corporation through such combination, as imposing a restraint upon interstate commerce in violation of the Anti-Trust Law. U. S. v. Northern Securities Co., 120 F., 721.

2-215 109. Same-Questions of Benefit to the Public-Public Policy.

Where the effect of a combination is to directly prevent competition between two parallel and naturally competing lines of railroad engaged in interstate business, it is in restraint of interstate commerce, and a violation of the Anti-Trust Act; and the court, in a suit to enjoin it as such, can not consider the question whether the combination may not be of greater benefit to the public than competition would be; that being a question of public policy, to be determined by Congress.

Ib. Affirmed, 193 U. S., 197 (2–338). 110. The pendency of a suit in a court can not be pleaded in abate

ment of an action in a circuit court of the United States to recover treble damages under section 7 of the Anti-Trust Act, since the State court is without jurisdiction to enforce the remedy given by said section, and therefore the same ca se can not be depending in both courts. Loewe v. Lawlor, 130 F., 633.

2-563 111. Settlement with One of Two Joint Wrong-doers Bar to Further

Recovery.-Plaintiff brought suit in a State court against the president of a wholesale grocers' association to recover damages for an alleged wrongful interference with his business.

He subsequently commenced an action in a Federal court against the association to recover damages for the same injury, alleged to have been caused by a conspiracy in restraint of trade, in violation of the Sherman Anti-Trust Act. Pending such action he settled the suit in the State

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