McDearmott Commission Co. v. Board of Trade of City of Chicago

• Decision Date: 09 July 1906
• Docket Number: 2,401.
• Citation: 146 F. 961
• Parties: McDEARMOTT COMMISSION CO. et al. v. BOARD OF TRADE OF CITY OF CHICAGO.
• Court: U.S. Court of Appeals — Eighth Circuit

146 F. 961

McDEARMOTT COMMISSION CO. et al. v. BOARD OF TRADE OF CITY OF CHICAGO.

No. 2,401.

United States Court of Appeals, Eighth Circuit.

July 9, 1906

(Syllabus by the Court.)

A board of trade, which has a right of property in market quotations collected in its exchange, does not surrender or dedicate them to the public by permitting subscribers, to whom they are communicated upon condition that they shall not be made public, to post them upon blackboards in their places of business, where the posting is done for the advantage of the subscribers, and not of the public, and does not make knowledge of the quotations general, or make them accessible to the public as of right, or render them of no further value.

James H. Harkless (Charles S. Crysler and Clifford Histed, on the brief), for appellants.

Martin H. Foss (Henry S. Robbins, on the brief), for appellee.

Before VAN DEVANTER and ADAMS, Circuit Judges, and PHILIPS, District judge.

VAN DEVANTER, Circuit Judge.

This is an appeal from an interlocutory order granting an injunction restraining the appellants from acquiring and using certain continuous market quotations without the appellee's consent.

Recognizing that these quotations as collected by the appellee in its exchange are its property, that while they remain such it has the right to control their acquisition and use by others, and that wrongful invasions of this right may be restrained in equity (Board of Trade v. Christie, 198 U.S. 236, 25 Sup.Ct. 637, 49 L.Ed. 1031; Board of Trade v. Cella Commission Co. (C.C.A.) 145 F. 28), the appellants rest their opposition to the injunction upon the sole claim that they do not obtain the quotations until they have been given to the public with the appellee's knowledge and approval and have ceased to be private property. In brief, the facts are these: Under an arrangement between the appellee and certain telegraph companies, which act as distributing agents, the quotations-- that is, those wherein the price of any commodity is quoted oftener than at intervals of 10 minutes-- are communicated by telegraph to commercial exchanges, brokers, and others throughout the country upon the express condition that they shall be used only in the private and individual business of the receiver; that they shall not be sold, communicated or otherwise given to news distributors or others; that no one shall be allowed to directly or indirectly take them from the office of the receiver, or to make a wire connection with the instrument or wires over which they are received; and that a failure to strictly comply with any of these requirements shall terminate the receiver's right to a continuance of the service. By reason of a charge which is made for communicating the quotations in this way, their collection and distribution are a source of substantial profit or gain to the appellee. Many of those to whom they are so communicated immediately post them upon blackboards in their places of business as a convenient means of stimulating and facilitating trade. These places of business, including the commercial exchanges, are maintained by private owners for the transaction of private business, and members of the public enter, not as a matter of common right, but only by the license of the owners, and usually for purposes in connection with their business. The posting seems to be with the knowledge and approval of the appellee, but not with any assent that the quotations may be copied and taken away or reproduced and used elsewhere. The appellants are brokers and commission merchants at Kansas City, Mo. In some systematic way, not satisfactorily disclosed, but confessedly without the consent of the appellee, they obtain the quotations immediately upon their being posted by those who rightfully receive them. They then display them upon blackboards in their own offices, and use them in their own business in like manner as do their competitors, who pay for them. The time intervening after the quotations are posted by others and before they are displayed in the appellants' offices is sometimes five minutes, but generally is much less.

It is the contention of the appellants that in the circumstances described the posting of the quotations by those who rightfully receive them is a generally publication, and instantly operates as a surrender or dedication to the public of the proprietary rights of the appellee. The Circuit Court held otherwise (143 F. 188), resting its decision largely upon the reasoning and conclusion of the Supreme Court in Board of Trade v. Christie, supra, where it is said:

'The plaintiff does not lose its rights by communicating the result to persons, even if many, in confidential relations to itself, under a contract not to make it public, and strangers to the trust will be restrained from getting at the knowledge by inducing a breach of trust, and using knowledge obtained by such breach (citing cases). The publication insisted on in some of the arguments were publications in breach of contract, and do not affect the plaintiff's rights. Time is of the essence in matters like this, and it fairly may be said that, if the contracts with the plaintiff are kept, the information will not become public

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