Triangle Conduit & Cable Co. v. National El. Prod. Corp.

• Decision Date: 30 November 1945
• Docket Number: No. 8868.,8868.
• Citation: 152 F.2d 398
• Parties: TRIANGLE CONDUIT & CABLE CO., Inc., v. NATIONAL ELECTRIC PRODUCTS CORPORATION.
• Court: U.S. Court of Appeals — Third Circuit

152 F.2d 398 (1945)

TRIANGLE CONDUIT & CABLE CO., Inc., v. NATIONAL ELECTRIC PRODUCTS CORPORATION.

No. 8868.

Circuit Court of Appeals, Third Circuit.

Argued October 8, 1945.

Decided November 30, 1945.

Samuel E. Darby, Jr., of New York City (Southerland, Berl & Potter, of Wilmington, Del., and Floyd H. Crews, of New York City, on the brief), for appellant.

John Hoxie, of New York City (Marvel & Morford, of Wilmington, Del., and George E. Faithfull, of New York City, on the brief), for appellee.

Before MARIS, GOODRICH, and McLAUGHLIN, Circuit Judges.

McLAUGHLIN, Circuit Judge.

This appeal involves a suit under the Sherman Act, 15 U.S.C.A. §§ 1-7, 15 note, and Clayton Act, 15 U.S.C.A. § 12 et seq., in which summary judgment was entered in the District Court in favor of the defendant.

Plaintiff manufactures armored cable. In that process, where the steel armor of the cable is cut off to expose the ends of the interior wires for the purpose of making connections, a fiber insulating bushing is inserted at each terminal to protect the wires from the sharp edges of the cut armor. Prior to 1937 plaintiff had purchased such bushings from an outside source. Early in 1937 it was no longer able to do this and therefore was forced to obtain its bushing requirements from the defendant or, as alleged in its amended complaint, "to acquire equipment necessary for and to engage in the manufacture of the bushings." Plaintiff asserts and for present purposes it may be accepted as a fact, that the defendant refused to sell bushings to armored cable manufacturers unless such manufacturers acquired licenses under alleged patent rights of the defendant which required payment to the defendant of royalties on all armored cable manufactured and sold. Plaintiff then states in Paragraph 10 of its amended complaint:

"Plaintiff refused to acquire such a license; and, therefore, in about February 1937, invested large sums of money to acquire, install and operate the necessary machinery to manufacture its own bushings, being further encouraged so to do by the potential market for its bushings for all manufacturers of armored cable."

Plaintiff frankly states that it is barred by the statute of limitations as to its expense in designing, building and installing equipment for the manufacture of bushings and that its only claim for damage at this time is based upon the contention that it has been excluded from the "potential market" for its bushings. That market is represented by the defendant's licensees who, because of their agreements with the defendant, were prevented from acquiring bushings from any one other than the defendant. It is urged that such exclusion continued up to the filing of the complaint and therefore, was not barred by the statute of limitations. It is also admitted for the purposes of this appeal that plaintiff's machine for making bushings has a production capacity barely sufficient to supply plaintiff's own needs, so that one or more duplications of the machine would be necessary in order to supply the trade.

The foundation of the action as it stands is Section 4 of the Clayton Act. 15 U.S.C.A. § 15. That section provides that where any person is injured in his business or property by reason of anything forbidden in the anti-trust laws he may sue and recover treble damages. Under it, our concern is with the question of...