Buckeye Powder Co v. Dupont De Nemours Poweder Co

• Decision Date: 01 May 1917
• Docket Number: No. 7,7
• Citation: 248 U.S. 55,63 L.Ed. 123,39 S.Ct. 38
• Parties: BUCKEYE POWDER CO. v. E. I. DUPONT DE NEMOURS POWEDER CO. et al
• Court: U.S. Supreme Court

248 U.S. 55

39 S.Ct. 38

63 L.Ed. 123

BUCKEYE POWDER CO.

v E. I. DUPONT DE NEMOURS POWEDER CO. et al.

No. 7.

Argued April 30 and May 1, 1917.

Ordered for Reargument June 10, 1918.

Reargued Nov. 13, 1918.

Decided Dec. 9, 1918.

Mr. Twyman O. Abbott, of New York City, for plaintiff in error.

[Argument of Counsel from pages 56-60 intentionally omitted] Messrs. Frank S. Katzenbach, Jr., Trenton, N. J., and William H. Button, of New York, City, for defendants in error.

Mr. Justice HOLMES delivered the opinion of the court.

This is an action brought by the plaintiff in error to recover triple damages under the Sherman Act, July 2, 1890, c. 647, § 7, 26 Stat. 209, 210 (Comp. St. 1916. § 8829). There was a trial that lasted five months, in which the facts were shown at great length, and after a very full and fair charge by the presiding judge the jury found a verdict in favor of the principal defendant, the E. I. Dupont de Nemours Powder Company, on the merits and for the other two by direction of the Court. Elaborate exceptions were taken but they were overruled by the Circuit Court of Appeals. 223 Fed. 881, 139 C. C. A. 319.

The first one that we shall deal with complains of the Court's sustaining a motion at the end of the trial that the plaintiff should elect whether it would rely upon the first or the second section of the Sherman Act (Comp. St. 1916, §§ 8820, 8521). If the case were different the question presented might be grave. In the one before the Court the only error was in the use of the word election and the implied admission that the trial possibly could be taken not to have proceeded upon the second section of the Act, coupled of course with section 7, giving a private action to persons injured by breach of the statute. The first section deals with contracts in restraint of trade, the second with monopolizing and attempting to monopolize it. The declaration, after stating the organization of the plaintiff in January, 1903, for the purpose of manufacturing and selling powder, particularly black blasting powder, alleges a long previous conspiracy on the part of various companies to monopolize the trade in explosives, which ended in the organization of the E. I. Dupont de Nemours Powder Company in May, 1903, in order more completely to carry out that end, It is alleged that the defendants and others have carried out that end, and that in pursuance of it they did acts, detailed at great length, for the purpose of compelling the plaintiff to join them or else go out of business. That, with an allegation that they succeeded and forced the plaintiff to sell out at a loss, is the whole scope of the declaration. There was a motion to strike it out for duplicity, but the motion was overruled on the ground that the declaration was as we have stated. (D. C.) 196 Fed. 514. The trial proceeded on that footing without complaint. So far as contracts bore upon the supposed attempt to subject plaintiff to the monopoly the jury was allowed to consider them. The case was fully tried upon the ground taken by the plaintiff at the outset and the only one on which it could hope to succeed. The plaintiff did not ask to amend. It is unnecessary to advert to the statement of the judge that in his opinion the exception to be considered should have the whole record behind it, or whether, as has been suggested, the second section is not the only one addressed to transactions such as were alleged. Northern Securities Co. v. United States, 193 U. S. 197, 404, 24 Sup. Ct. 436, 48 L. Ed. 679. When the plaintiff, after the ruling of the judge, went through the form of electing to rely upon acts done contrary to section 2 of the statute, it simply adhered to the interpretation of its declaration that it had accepted at the beginning and had endeavored to sustain throughout. Portions of the charge are criticised in this connection for pointing out to the jury that section 2 embraced not only monopoly but attempts to monopolize. But this was wholly to the plaintiff's advantage, as it explained that if the plaintiff was driven out of business by the defendant's acts it was entitled to recover if those acts were done in the course of an attempt to monopolize, whether or not they were crowned with success. It allowed the jury to consider everything that indicated such an attempt.

Next in importance is an exception to the Court's directing a verdict in favor of the Eastern Dynamite Company and the International Smokeless Powder and Chemical Company. There were no acts done by either of these companies that were aimed at the plaintiff. The only substantial ground for charging them was that if they were parties to a conspiracy as alleged they became responsible for the acts of the Dupont Company as their own. As the jury exonerated the latter company this ground fails. So that even if the ruling was wrong it did no harm unless something more can be found in the case. Portland Gold Mining Co. v. Stratton's Independence, 158 Fed. 63, 85 C. C. A. 393, 16 L. R. A. (N. S.) 677. The ruling did not import that there was no evidence against the Dupont Company, the case against which was put fairly to the jury, but that there was no evidence that the other defendants conspired with it, so far at least as the plaintiff was concerned. These companies did not make black blasting powder and had no interest immediately adverse to the plaintiff. The basis of the charge of conspiracy affecting the black blasting powder business was that the Dupont Company directly or through another company was interested in their stock. No ohter is suggested in the declaration and it would be hard to extract any act from the evidence. Certainly none could be found...