Cleland v. Anderson

• Decision Date: 06 November 1902
• Citation: 92 N.W. 306,66 Neb. 252
• Parties: CLELAND ET AL. v. ANDERSON ET AL.
• Court: Nebraska Supreme Court

66 Neb. 252

92 N.W. 306

CLELAND ET AL.

v.ANDERSON ET AL.

Supreme Court of Nebraska.

Nov. 6, 1902.

Syllabus by the Court.

1. Chapter 91a, Comp. St. 1901, does not grant to any individual special or exclusive privileges or immunities, within the inhibition of section 15, art. 3, of the constitution, and is not special legislation, within the meaning of said section.

2. Section 11, art. 3, of the constitution, does not require that amendments made to a bill while under consideration by the legislature be read at large before each house on three different days; but it is sufficient that such amendments be printed, as required by said section, and that the bill, as amended, be adopted by both houses.

3. An association of retail dealers in lumber, organized, as stated by its constitution, to prevent its members from being subjected by competition of wholesalers, which requires a fixed amount of stock, continuously carried, to entitle a dealer to membership, and levies upon and collects from wholesale dealers a penalty in case they make sales to consumers directly, or to retail dealers not eligible to membership in the association, is unlawful, under section 1, c. 91a, Comp. St.

4. Under the provisions of section 1, c. 91a, Comp. St. 1901, the number of dealers who engage in such unlawful combination, and the proportion they bear to the whole number of dealers in the same trade, are not material.

5. A dealer who is injured in any way by such an unlawful combination may bring an action, under section 11, c. 91a, Comp. St. 1901, against the members thereof, or any one or any number of them, to recover his damages.

6. Where the express object of an association of retail dealers is to prevent competition by wholesalers in selling to consumers directly, or to retail dealers not eligible to membership in the association, the acts of any of its members, or of any persons acting in concert with them, in endeavoring to prevent or hinder sales by wholesale dealers to a particular retail dealer not eligible to membership, are in furtherance of the common design, and may be shown in evidence against all, whether directly participated in or expressly authorized by the association, as a whole, or not.

7. Evidence of acts and declarations of persons alleged to have been engaged in an unlawful combination in furtherance of its purpose is admissible not only to charge the several persons engaged therein with the consequences of such acts, but also to establish the existence and extent of the combination. If the combination, or the participation of one or more of the defendants therein, is not shown sufficiently, the court should be requested to instruct that the evidence can only be considered against those whose acts or declarations were proved.

8. When an unliquidated claim for damages against a number of joint wrongdoers is satisfied by one or more of the persons liable, it is extinguished as to all.

9. A cause of action which would survive and pass to the personal representative of the plaintiff, so that the avails thereof would be distributed in administration of his estate, will pass to his trustee in bankruptcy, under the provisions of section 70 of the bankruptcy act of 1898 [[[U. S. Comp. St. 1901, p. 3451].

10. By virtue of section 455, Code Civ. Proc., an action under section 11, c. 91a, Comp. St. 1901, would not completely abate on the death of the plaintiff, but could be revived and maintained by his personal representative.

11. Hence, whatever might be the rule had no action been begun prior to filing of a petition in bankruptcy, so that the cause of action would not survive under section 454, Code Civ. Proc., the interest of a bankrupt in such an action, pending at the time of his bankruptcy, passes to his trustee, and a purchaser and assignee thereof claiming under a trustee's sale may satisfy the claim.

12. A voluntary association, unincorporated, which is not organized to carry on some trade or business or to hold property in this state, and does not in fact carry on a trade or business or hold property therein, cannot sue or be sued as such.

13. An erroneous instruction directing a verdict in favor of certain defendants, participants in a joint wrong, affords no ground of complaint to codefendants jointly and severally liable with them.

Commissioners' opinion. Department No. 2. Error to district court, Dawson county; Sullivan, Judge.

Action by George F. Anderson against J. C. Cleland and others. Judgment for plaintiff, and defendants, with the exception of West and Back, bring error. Reversed.

Kennedy & Learned, Stinson & Martin, and E. A. Cook, for plaintiffs in error.

H. D. Rhea, H. M. Sinclair, and Warrington & Stewart, for defendants in error.

POUND, C.

Anderson, one of the defendants in error, who will be referred to as “plaintiff,” brought this action against Cleland, Carroll, Back, and West, and the Nebraska Retail Lumber Dealers' Association, who will be called “defendants,” under section 11, c. 91a, Comp. St. 1901, to recover damages sustained by reason of an alleged unlawful combination and conspiracy to prevent competition, regulate prices, and control the purchase and sale of lumber, whereby he alleged he had been driven out of business as a dealer in lumber, and forced into bankruptcy. Plaintiff was a contractor and builder, and alleged also that he was a buyer, seller, and shipper of lumber, at wholesale and retail, doing business at Gothenburg and North Platte, and maintaining a lumber yard at the place last named. Cleland was secretary of the defendant association. The defendants Carroll, Back, and West were retail dealers at Gothenburg, and Carroll was a member of the association. It appears in evidence that in May, 1899, the defendants Carroll, West, and Back, with three retail lumber dealers at North Platte, members of the association, signed a circular, which was signed and attested by the defendant Cleland as secretary of the association, addressed, “To the Trade,” in which they set forth that “there is no such concern as the Anderson Lumber Company of North Platte,” that G. F. Anderson is not a “regular dealer,” and “warn all shippers and dealers to refrain from quoting or shipping to either of the above names, or by their order.” This circular was printed at Fremont, where the secretary of the association resided, and was shown to have been sent to wholesale dealers of whom plaintiff had been purchasing. It was also shown that members of the association had sent letters and telegrams to wholesale dealers, protesting against sales to plaintiff, or stating that he was not a regular dealer, entitled to buy at wholesale as such. The constitution and by-laws of the association were put in evidence, and from them it appears that the object and purpose of the organization, among other things, are to prevent its members from being subjected to competition of wholesalers. They provide who shall be considered a retail dealer, entitled to purchase at wholesale as such, and require a stock of 75,000 feet, continuously carried, and a yard and office continuously occupied, in order to make a dealer at retail “regular,” so as to be entitled to membership. They provide for a penalty to be levied upon and collected from wholesalers who sell directly to consumers, or to others than regular dealers; and they permit wholesale dealers to become “honorary members.” There are other provisions in the constitution and by-laws, whereby similar organizations in other states are to be advised and warned against irregular dealers, and sales to such persons by the wholesalers. A resolution adopted by the association in February, 1899, is also in evidence, wherein all manufacturers and jobbers of lumber are requested to abstain from selling to certain dealers named, and are “solemnly assured” that the members of the association will not buy of any one who sells to such dealers, under any circumstances. One wholesale dealer, who, it appears, had paid a penalty levied upon him for selling to plaintiff, testifies that he ceased to sell to him because of the objections made thereto; and there is evidence tending to show that by reason of the circular, letters, and telegrams referred to, plaintiff became unable to buy further of those from whom he had been purchasing, and was driven out of business. The several defenses urged may be stated most conveniently in connection with the points argued in this court. Upon trial to a jury, the court directed a verdict in favor of Back and West, who were not members of the association. The jury found against the remaining defendants, and error is prosecuted from the judgment rendered thereon.

The first and most important question raised relates to the constitutionality of chapter 91a, Comp. St. 1901, entitled “Trusts.” Counsel challenge the constitutionality of this statute on three grounds: (1) Because section 9 expressly excepts organizations of laboring men, for the purpose of raising wages, from its operation, whereby, it is contended, special and exclusive privileges and immunities are granted to laborers, contrary to section 15, art. 3, of the state constitution; (2) because the bill for the act was amended while under consideration by the legislature, and, after amendment, was not read three times in each house; and (3) on the ground that said section 9, which was probably an inducement to the passage of the act, is broader than its title. The first of these objections is much the most serious. If laborers are clearly within the general scope and reason of the act, so that the provision exempting them from its operation arbitrarily permits them to do acts in contravention of its terms and purpose, which are forbidden to the public at large, there can be no doubt that the statute must fail. Statutes must be general and uniform throughout the state, and must operate alike upon all persons and localities of a class reasonably constituted with reference to the...