W.W. Montague & Co. v. Lowry

Citation115 F. 27
Decision Date17 February 1902
Docket Number697.
PartiesW.W. MONTAGUE & CO. et al. v. LOWRY et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

The writ of error in this case is brought to review the judgment of the circuit court rendered in an action which the defendants in error brought against the plaintiffs in error under the act of congress of July 2, 1890 (26 Stat. 209) commonly known as the Sherman Anti-Trust Act. ' The complaint alleged that the plaintiffs therein had been injured in their business by reason of the illegal combination between the defendants therein made under the name of the Tile, Mantel & Grate Association of California. The substantial facts alleged in the complaint and proved on the trial were that for a number of years prior to the year 1898 the defendants in error had been engaged in the business of buying and selling and setting tiles, mantels and grates in the city of San Francisco, and that the tile which they used in their business was purchased from some of the various tile manufacturers in the states of Ohio Indiana, Kentucky, New Jersey, and Pennsylvania, who subsequently entered into the association, there being no manufacturers of tiles in the state of California; that by industry and attention thereto the defendants in error had established a profitable business; that in the year 1898 the plaintiffs in error formed the association, the object of which, as declared in its articles, was 'to unite all acceptable dealers in tiles, fireplace fixtures, and mantels in San Francisco and vicinity (within a radius of two hundred miles), and all American manufacturers of tiles, and by frequent interchange of ideas advance and promote the mutual welfare of its members. ' As to membership, it provided that any individual, corporation, or firm engaged in the tile, mantel, and grate business in San Francisco, or within a radius of 200 miles therefrom, having an established business, and carrying not less that $3,000 worth of stock and having been proposed by a member in good standing and elected, and having signed the constitution and by-laws, and paid an entrance fee of $10, might become a member. It was also provided that all manufacturers of tiles and fireplace fixtures throughout the United States might become nonresident members upon the payment of an entrance fee and signing the constitution and by-laws. Section 7 of the by-laws forbade members of the association to purchase goods from any manufacturer unless the latter were a member of the association, and forbade them to 'sell or dispose of, directly or indirectly, any unset tile for less than list prices to any person or persons not a member of this association, under penalty of expulsion from the association. ' It provided, further, that any manufacturer selling goods to others than members of the association should forfeit membership. It was shown that the list price referred to in section 7 was a nominal catalogue price of goods fixed by the manufacturers for convenience, but that in selling to members of the association, and, prior to forming the association, in selling to the trade generally, the manufacturers had allowed large discounts from the list prices amounting to something more than 50 per cent. thereof. The defendants in error alleged in their complaint that it required the unanimous consent of the association to become a member thereof, and that by reason of certain business difficulties there were members of the association who were antagonistic to them, and who would not have permitted them to join if they had applied, and that they were not eligible to join the association for the further reason that they did not carry at all times stock of the value of $3,000. They also alleged that the association constituted a trust and conspiracy in restraint of interstate trade and commerce, and a monopoly of the grate, tile, and mantel trade between the parties engaged therein. The jury found damages for the defendants in error in the sum of $5000, and for that amount judgment was rendered in their favor, and for the further sum of $750 for an attorney's fee, which was allowed by the court.

P. F. Dunn and Linforth & Whitaker, for plaintiffs in error.

J. C. Campbell, W. H. Metson, and R. W. Campbell for defendants in error.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

GILBERT Circuit Judge, after stating the case as above, .

Two questions are presented upon the writ of error-- First, did the association constitute a combination which was within the prohibition of the act of July 2, 1890? And, second, was the amount of the attorney's fee allowed by the court excessive? In answering the first question, we must first take into the account the declared purpose of the association. It was formed to unite all acceptable dealers engaged in the tile, grate, and mantel business in San Francisco and within a radius of 200 miles therefrom, and all American manufacturers of tiles. In its scope it included upon the one hand every manufacturer of tiles wherever situate in the United States, and upon the other the six firms of local dealers who joined the association at its formation, together with those who might be permitted thereafter to become members. The defendants in error were not invited to enter into the combination. The rules prescribed that others in the same line of business, who had an established business and carried stock of the value of $3,000, and who were 'acceptable,' might upon the proposition of one who was already a member, and upon the vote of the association, be permitted to join the combination. The evidence shows that the defendants in error after the formation of the association made efforts to purchase tile from manufacturers in Indiana with whom they had before been doing business, and that their...

To continue reading

Request your trial
2 cases
  • United States v. Besser Mfg. Co., Civ. No. 8144.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • January 30, 1951
    ...commerce of concrete block machinery. "Commerce" is the business of buying and selling of commodities for money, Montague & Co. v. Lowry, 9 Cir., 115 F. 27, 63 L.R.A. 58, affirmed 193 U.S. 38, 24 S.Ct. 307, 48 L.Ed. 608; U. S. v. Swift & Co., C.C., 122 F. 529; and here the commodity to whic......
  • Quality Discount Tires, Inc. v. Firestone Tire & Rubber Co., 47
    • United States
    • Court of Appeals of Maryland
    • January 31, 1978
    ......Victor Talking Mach. Co., 297 F. 791 (2d Cir. 1924); Lowry v. Tile, Mantel & Grate Ass'n, 106 F. 38, 47 (Cir.Ct.N.D.Cal.), aff'd, 115 F. 27 (9th Cir. 1902), ......
1 books & journal articles
  • Tilted Scales of Justice? the Consequences of Third-party Financing of American Litigation
    • United States
    • Emory University School of Law Emory Law Journal No. 63-2, 2013
    • Invalid date
    ...note 18.134. Lowry v. Tile, Mantel & Grate Ass'n of Cal., 106 F. 38, 46 (C.C.N.D. Cal. 1900), aff'd sub nom. W.W. Montague & Co. v. Lowry, 115 F. 27 (9th Cir. 1902), aff'd, 193 U.S. 38 (1904).135. Leon B. Greenfield & David F. Olsky, Treble Damages: To What Purpose and to What Effect?, Wilm......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT