Shaw's, Inc. v. Wilson-Jones Co., 7015.

• Decision Date: 28 June 1939
• Docket Number: No. 7015.,7015.
• Parties: SHAW'S, Inc., v. WILSON-JONES CO.
• Court: U.S. Court of Appeals — Third Circuit

105 F.2d 331 (1939)

SHAW'S, Inc., v. WILSON-JONES CO.

No. 7015.

Circuit Court of Appeals, Third Circuit.

June 28, 1939.

Geo. P. Williams, Jr., and Orr, Hall & Williams, all of Philadelphia, Pa., for appellant.

John Sailer, Philip L. Leidy, and Frederick H. Spotts, all of Philadelphia, Pa. (Pepper, Bodine, Stokes & Schoch, of Philadelphia, Pa., of counsel), for appellee.

Before BIGGS, MARIS, and CLARK, Circuit Judges.

BIGGS, Circuit Judge.

Shaw's, Inc., the appellant, a Pennsylvania corporation, filed suit in the court below against Wilson-Jones Company, the appellee, a Massachusetts corporation, and sought treble damages pursuant to the provisions of Section 4 of the Clayton Act, 38 Stat. 731 (15 U.S.C.A. § 15). In its complaint the appellant alleges that the appellee unlawfully discriminated in price against the appellant in violation of the provisions of Section 2(a) of the Clayton Act, 38 Stat. 730, as amended by the Robinson-Patman Act, § 1, 49 Stat. 1526 (15 U. S.C.A. § 13(a).

The appellee filed a motion to dismiss the complaint alleging that it fails to state a cause of action. The court below entered its decree dismissing the complaint. The appeal at bar is from this decree.

It appears from the complaint that the appellant sells supplies required for election purposes and that the appellee manufactures such supplies and sells them to dealers only, the dealers reselling them to ultimate purchasers; that the appellant had purchased such supplies from the appellee for three years prior to happening of the events complained of; that the appellant stated to the appellee its intentions to bid upon a contract to supply the Registration Commission of Philadelphia with certain materials required by the Commission; that the appellee repeatedly promised to give it information concerning prices of the materials required. The complaint goes on to allege that the appellant repeatedly asked the appellee to quote such prices to the appellant; that despite the appellee's promises to quote such prices, five days prior to the day upon which bids were due to the Registration Commission the appellee notified the appellant that it would not quote the appellant prices and refused all information in such respect. The complaint then alleges that the appellee quoted a price to Dunlap Company, a competitor of the appellant's, and to this company only.

Specifically, paragraph 17 of the complaint alleges that "* * * the defendant discriminated in price by refusing to give the same to the plaintiff and instead gave the price thereof to the plaintiff's competitor, Dunlap Company * * * exclusively. The discrimination by the defendant was pursuant to a previously arranged plan for the purpose of preventing, injuring and destroying competition between Dunlap Company and the plaintiff or anyone else in bidding for this equipment to be supplied to the Registration Commission of Philadelphia * * *."

The eighteenth paragraph of the complaint alleges that, "As a result of the discrimination, plaintiff could not and did not make a bid, and the only bidder was the Dunlap Company above mentioned. This discrimination prevented, injured and destroyed competition between plaintiff and Dunlap Company. The discrimination enabled Dunlap Company to be the only and successful bidder at prices considerably more than had been charged corresponding public bodies of this territory, including the counties of Allegheny and Montgomery at or about the same time, for similar comparable equipment."

Paragraph 20 of the complaint alleges that the result of the discrimination practiced by the appellee "* * * was to substantially lessen competition and to tend to create a monopoly in the articles of commerce in question * * *."

Paragraph 22 of the complaint alleges that "Had the price been given plaintiff which was given to Dunlap Company by the defendant, and had the plaintiff been awarded the entire contract by the Registration Commission, plaintiff would have bought said material from the defendant by suitable contract of sale, which would have been entered into between the parties, but said price not having been given by defendant to plaintiff, plaintiff could not bid on the commodities nor buy nor receive them in interstate commerce from defendant, and was discriminated against in that plaintiff lost its chance to do so in response to the advertisement of the said Commission."

Paragraph 23 alleged that there was a substantial lessening of competition and "* * * a tendency to creat a monopoly" as a result of the appellant's conduct "both generally and with respect to this plaintiff", thereby destroying and preventing competition between the appellant and its competitor, the Dunlap Company, and that this conduct of the appellee created a monopoly.

The complaint states that by reason of the foregoing, the appellant was prevented from making a profit and is entitled to damages treble the amount thereof.

As to the Law.

The portions of Section 2(a) of the Clayton Act, as amended (15 U.S.C.A. § 13(a), immediately pertinent to the issues presented, provide that, "It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States * * * where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either...