Beacon Fruit & Produce Co. v. H. Harris & Co., Civ. A. No. 56-172.

• Decision Date: 28 May 1957
• Docket Number: Civ. A. No. 56-172.
• Citation: 152 F. Supp. 702
• Parties: BEACON FRUIT & PRODUCE CO., Inc., et al. v. H. HARRIS & CO., Inc., et al.
• Court: U.S. District Court — District of Massachusetts

152 F. Supp. 702

BEACON FRUIT & PRODUCE CO., Inc., et al. v. H. HARRIS & CO., Inc., et al.

Civ. A. No. 56-172.

United States District Court D. Massachusetts.

May 28, 1957.

Lawrence R. Cohen, Joseph Aborn, Boston, Mass., Sigmund Timberg, Washington, D. C., Albert R. Mezoff, Charles George, Arthur L. Brown, Boston, Mass., for plaintiffs.

John L. Saltonstall, Jr., Richard Maguire, Thomas J. Carens, I. J. Silverman, Boston, Mass., for defendants.

FORD, District Judge.

This is an action under the antitrust laws to recover damages for alleged violations of §§ 1 and 2 of the Sherman Act, 15 U.S.C.A. §§ 1 and 2. The plaintiffs are dealers in fruits and vegetables. The defendants who now remain in the case are H. Harris & Co., Inc., a Massachusetts corporation (hereinafter called Harris) and three individuals, Albertson, Pontefract and Giovino, who are the directors and principal stockholders of Harris, Pontefract being president of the corporation and Albertson its treasurer.

The business of Harris was conducted for many years by a partnership. In 1951 the present corporation was formed (originally under the name of Fruit Auction, Inc.) by a group of customers of the partnership, with the individual defendants as principal shareholders, which purchased the partnership assets and thereafter carried on the business.

Harris conducts an auction market for the sale of citrus and deciduous fruits by shippers or receivers who act as agents for the shippers. These sellers notify Harris of shipments of produce they wish to sell. Harris then arranges with the carriers for delivery to its warehouse, unloads the produce, displays sample packages, and prepares a catalogue of items offered for sale. All produce is sold at auction, subject to withdrawal by the seller if a minimum price fixed by the seller is not bid. Any person who meets certain credit qualifications may buy. Plaintiffs are all buyers at these auctions. Upon the sale of the produce Harris keeps a record of the transaction, pays the seller, supervises delivery to the buyers, and then bills the buyers and collects from them.

Harris charges each seller a commission based on a percentage of the selling price of its produce. It also collects from the buyer a charge of five cents for each individual package purchased, regardless of the size and contents of the package. It is this five-cent charge of which plaintiffs complain.

Each side has moved here for summary judgment. While there is no complete agreement on the facts, it appears to be the contention of each party that on the basis of certain facts asserted by it and not controverted by the opposing parties, it is entitled to judgment as a matter of law and that other facts alleged by the opposing parties are immaterial to the decisive issues of the case.

On consideration of the contentions advanced by the parties, it does not appear that the issues here resolve themselves into clear-cut questions of law which can be resolved on the basis of a selection of facts which are not controverted, but rather that the solution of each of the issues involved requires a further development of the factual background.

The first charge of plaintiffs is that defendants have engaged in a combination or conspiracy in restraint of trade in violation of § 1 of the Act. Defendants argue that there can be no conspiracy among these defendants since they are a corporation and its principal officers and directors. It is generally true that the acts of the agents of a corporation in carrying out their duties of formulating the policy of the...