Mitchell Woodbury Corp. v. Albert Pick Barth Co.
| Decision Date | 05 June 1930 |
| Docket Number | No. 2445.,2445. |
| Citation | 41 F.2d 148 |
| Parties | MITCHELL WOODBURY CORPORATION v. ALBERT PICK BARTH CO., Inc., et al. |
| Court | U.S. Court of Appeals — First Circuit |
Sherman L. Whipple, of Boston, Mass. (Claude B. Cross and Edward C. Park, both of Boston, Mass., on the brief), for appellant.
Edward F. McClennen, of Boston, Mass. (Jacob J. Kaplan and Charles B. Newhall, both of Boston, Mass., on the brief), for appellee Pick Barth Co., Inc.
Before BINGHAM, ANDERSON, and WILSON, JJ.
An action to recover threefold damages under section 4 of the Clayton Act (15 USCA § 15). The plaintiff is a Massachusetts corporation, dealing in china, glassware, kitchen utensils, and equipment. The defendant, Albert Pick Barth Co., Inc., is a Maryland corporation and the other two defendants are residents of Massachusetts. Federal jurisdiction is based on section 4 of the U. S. C. title 15 (15 USCA § 4).
The case is before this court on alleged error in the ruling of the court below in sustaining a demurrer to the plaintiff's declaration. Upon the issue thus raised the allegations contained in the declaration are to be taken as true.
The declaration alleges that the plaintiff was engaged in interstate commerce; that the defendant corporation was one of a combination of corporations of similar name and allied interests engaged in the same business as the plaintiff, and constituted the largest and a dominating factor in that trade throughout the United States; that the defendants Stuart and McDonald were former trusted employees of the plaintiff, having access to its records, plans, lists of customers, present and prospective, cost records, and other data; that said defendants entered into conspiracy to deprive the plaintiff of its interstate business in its kitchen equipment and utensils, and to restrain the competition of the plaintiff with the defendant corporation and destroy its business in the several states, and in furtherance of such conspiracy said defendant corporation induced the said Stuart and McDonald to leave the plaintiff's employ and to take with them the plaintiff's lists of customers, present and prospective, cost records, plans, and other data necessary to the conduct of its said business; that before leaving its employ said Stuart and McDonald secretly solicited the plaintiff's customers in behalf of the defendant corporation and did other acts to prevent the plaintiff acquiring new business, all of which the plaintiff alleges injured its business in kitchen equipment and utensils. As the declaration does not allege that it was engaged in any other business than interstate business, the fair inference is that it was its interstate kitchen department business that it alleges was injured and diminished.
The defendants contend in support of their demurrer that the declaration sets forth no wrong except the wrong of enticing away employees of the plaintiff, causing them to break their contracts of employment with the plaintiff and of entering into competition with the plaintiff; that the enticing of the employees of the plaintiff was a private wrong having no direct effect upon interstate commerce; and that the establishment of its business in the state of Massachusetts by the defendant corporation, even though it diminished the business of the plaintiff and incidentally its business in the several states, constituted no offense under the anti-trust acts.
The court below, expressing doubt as to the sufficiency of the declaration, but following precedents established under such circumstances in Re Ballard Oil Burning Equipment Co. v. Mexican Petrol Corp. (D. C.) 22 F.(2d) 434; Rosso v. Freeman (D. C.) 30 F.(2d) 826, upheld the defendants' contentions and sustained the demurrer.
Construed strictly according to the common-law rules governing pleading, the declaration falls short of setting forth a cause of action under the anti-trust acts, but the Massachusetts statute no longer requires that exactitude and certainty required at common law, but only that the necessary substantive facts be stated concisely and with substantial certainty. Gen. Laws, 1921, chap. 231, § 7; Flye v. Hall, 224 Mass. 528, 113 N. E. 366. We think the declaration sufficiently charges that the defendant corporation entered into a conspiracy with two trusted and important members of the plaintiff's staff of employees to obtain the customers of the plaintiff in kitchen equipment and utensils, and by unfair means, and to deprive it of its business between the several states and obtain it for itself.
From its position as the largest and dominant factor in interstate business in this line, the defendant corporation is, in effect, charged, in conjunction with the other defendants, with a purpose, and acts in furtherance of that purpose, of eliminating the plaintiff as an interstate competitor.
It can hardly be said that allegations that the defendants entered into a conspiracy to restrain the competition of the plaintiff in trade and commerce among the several states, and to deprive it of its business and to obtain that business for the defendant, do not charge with substantial certainty an intent to restrain commerce and the full and free flow of interstate competition. Addyston Pipe Co. v. United States, 175 U. S. 211, 241, 242, 20 S. Ct. 96, 44 L. Ed. 136.
That the several acts done in furtherance of the alleged conspiracy by themselves alone do not constitute any federal offense is of no consequence, if the purpose and intent is...
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