First National Bank of Jeannette v. Missouri Glass Co.
| Decision Date | 31 December 1912 |
| Citation | 152 S.W. 378,169 Mo.App. 374 |
| Parties | FIRST NATIONAL BANK OF JEANNETTE, PENNSYLVANIA, Appellant, v. MISSOURI GLASS COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Submitted on Briefs November 11, 1912.
Argued and Resubmitted December 14, 1912. [Copyrighted Material Omitted]
Appeal from St. Louis City Circuit Court.--Hon. Eugene McQuillen Judge.
REVERSED AND REMANDED (with directions).
STATEMENT.--This action was brought on an account for glassware sold by McKee-Jeannette Glass Works, a corporation of the State of Maine, having its principal office and manufactory at Jeannette, Pennsylvania, to defendant, a corporation of the State of Missouri. Afterwards the vendor sold and assigned the account, for value, to the First National Bank of Jeannette, a national bank located at Jeannette. Defendant failing to pay the account, action was instituted by the bank against it in the circuit court of the city of St. Louis.
The petition is in the usual form, an itemized account being attached to it as an exhibit, showing a total of $ 1318.17 with credits for $ 18.37, leaving a balance of $ 1299.22, for which account payment is demanded.
The answer, after a general denial, sets up in substance that defendant had made the purchase of the glass and glassware and had received it but had not paid for it in full and refused to do so and still refuses to do so, on the grounds that during all the times alleged in the petition, and in the account filed with it as an exhibit, the McKee-Jeannette Glass Works, hereafter referred to as the Glass Works, had become and was a member of a pool, trust, agreement combination, confederation or understanding with other persons, named in the answer, to restrain the trade or competition in the manufacture, purchase or sale in this State or elsewhere of glass and glassware, which pool, trust, etc., had been entered into and was maintained during the time above mentioned by the name of the Keystone Selling Association and of the Glass Association, "contrary to law and in violation of the statutes of this State relating to pools, trusts and conspiracies, and of the laws of the United States." The names of nine companies or corporations are given whom it is alleged composed the Keystone Selling Association, the McKee-Jeannette Glass Works being one of them, but not including defendant as one. It is further averred that the Glass Association was composed of the United States Glass Company of Pittsburg, Pennsylvania, and nineteen other glass manufactories located at various points and places in Pennsylvania, West Virginia, Ohio and Indiana, names not given, and that not including defendant. It is averred that the Selling Association, meaning by that the Keystone Selling Association, controlled the output of glassware of the manufactories above named and from time to time during the period covered by the transaction with defendant controlled the output of glassware of those divers manufactories and from time to time during that period restrained the manufacture of glassware by those parties and also restrained competition between the companies named as composing the Selling Association in the sale of glass and glassware in Missouri and elsewhere and from time to time made promises to purchasers of glass and glassware in Missouri and elsewhere, including among those persons the defendant, to pay such purchasers out of the pool formed by the trust certain commissions or rebates "to compensate these purchasers for the loss suffered by them because of the destruction or impairment by said combination of the competition in the trade in glassware; that the defendant, by reason of the conditions aforesaid, was obliged to purchase from the McKee-Jeannette Glass Works, or of other members of the Keystone Selling Association, the merchandise consisting of glass and glassware aforesaid; that the defendant was unable to purchase the same elsewhere, because of the said combinations of manufacturers and sellers of glass, and defendant also states and charges the fact to be that when defendant made the purchases aforesaid, from said McKee-Jeannette Glass Works, the defendant was promised commissions or rebates on account thereof, in cash, from the pool so formed and maintained by said trust or combination; but the payment of these rebates or commissions has not been made; on the contrary, payment thereof is now refused." Because of the matters and facts above stated, defendant avers that it is not indebted to either the McKee-Jeannette Glass Works or to the plaintiff in any sum whatsoever. This answer was demurred to, the demurrer overruled, whereupon plaintiff filed a motion to strike out all of the answer except the part of it containing a general denial, on the ground that all of the remaining part of this answer constitutes no defense to the cause of action set out in the petition. This was also overruled.
A reply was thereupon filed.
At the close of the evidence in the case and the giving of certain declarations of law asked by defendant, refusing all asked by plaintiff, the court, sitting as a trier of fact, a jury having been waived, found in favor of defendant. Interposing a motion for new trial and saving exception on that being overruled, plaintiff perfected its appeal to the Supreme Court of this State.
That court, adopting an opinion written by Mr. Commissioner BOND, transferred the cause to this court upon the ground that it was a case within our jurisdiction and not within that of the Supreme Court. [See First National Bank of Jeannette v. Missouri Glass Co., ___ Mo. ___, 147 S.W. 1030.] The cause is accordingly before us on the appeal of the plaintiff. After the cause reached our court respondent was adjudged bankrupt and its trustees entered their appearance here.
Errors assigned are to the refusal of the trial court to give any of the declarations of law asked by plaintiff; to error in giving the defendant's declarations; to error in not sustaining plaintiff's objection to the introduction of any evidence by defendant under the affirmative defense set up in the answer; to error of the court in admitting in evidence contracts between the defendant and the Keystone Selling Association and between the defendant and the Glass Association; to error of the court in failing to pass upon plaintiff's objections to sundry questions, and in failing to sustain plaintiff's objections to the same questions.
Disposing of this last assignment, it is sufficient to say that if plaintiff desired a ruling at the time on the objections it made to the admission of testimony, it was within its right to insist on a ruling; if the court then failed to rule, plaintiff could have excepted to this failure. As it neglected to do this, the action of the court or its non-action on the objections is not before us.
In the view we take of this case we do not think it necessary to pass upon the assigned error of the trial court in not sustaining plaintiff's objection to the introduction of any evidence under the affirmative defense set up in the answer, nor do we consider it necessary to take up the assignments of error in detail, save as above.
The contracts between defendant and the Keystone Selling Association and the Glass Association are identical. The membership of the two bodies is as set out in the answer. The McKee-Jeannette Glass Works was a member of the Keystone Selling Association but not of the Glass Association. The defendant was not a member of either, but a buyer from the McKee-Jeannette concern, possibly from others, but as to the account in suit, directly from the McKee-Jeannette Glass Works. The members of the Selling and Glass Associations, as far as we can gather from the testimony, were manufacturers of glass and glassware. While it appears that the membership at the time of this transaction was as set out in the answer, it also appears that the membership varied, some of those in it dropping out from time to time and new members joining. It is not very clear what the objects of either of these associations were. The nearest approach to any testimony on that is this: A witness, who had been for a little over a year secretary and treasurer of the Keystone Selling Association, was asked what business was conducted by that association. He answered that he thought it was for the purpose of maintaining prices among the members. This answer was objected to as calling for a conclusion and counsel for appellant moved that it be stricken out. No ruling was made on the objection or the motion. But on this witness being asked how this was accomplished, he answered that it was by an agreement among the members, which he identified and which is in evidence. That agreement is headed as follows:
Pittsburg, Pa.
It is addressed to the Missouri Glass Company at St. Louis and, omitting immaterial matters, is as follows, the words in parenthesis () being so placed in the original:
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