Sperry & Hutchinson Co. v. McKelvey Hughes Co.
| Decision Date | 18 July 1916 |
| Docket Number | 37-1915,36-1915,38-1915,39-1915,35-1915 |
| Citation | 64 Pa.Super. 57 |
| Parties | Sperry & Hutchinson Company v. McKelvey Hughes Company, Appellant |
| Court | Pennsylvania Superior Court |
Argued April 13, 1916 [Syllabus Matter]
Appeals by defendants, from decree of C.P. Allegheny Co., No 393, First Term, 1908, In Equity, in attachment for contempt in case of The Sperry & Hutchinson Company v. McKelvey Hughes Company, et al.
Petition for attachment for contempt. Before Swearingen, J.
The facts are stated in the opinion of the Superior Court.
Error assigned was decree awarding the attachment.
Edward Herrmann, with him Pettes, Tyrell & Bracken, for appellants. -- The contracts in evidence and the testimony clearly show that the plaintiff is engaged in an interstate commerce: United States v. Reading Co., 226 U.S. 324.
The acts complained of, again assuming that they were interference with persons having contracts with the New Jersey corporation, do not constitute violations of the injunction either in letter or in spirit: Sullivan v. Jones & Laughlin Steel Co., 208 Pa. 540.
The burden was upon the plaintiff to establish, by a preponderance of evidence, that the acts complained of were in violation of the injunction: Potter v. How, 16 How. 549, N.Y. Pr.
W. Benton Crisp, with him J. Van Devanter Crisp and Charles A. Poth, for appellee. -- The Sperry & Hutchinson Company of New Jersey, has the right to maintain this proceeding: Foard Co. of Baltimore v. State of Maryland, 219 F. 827; Hawley v. Bennett, 4 Paige N.Y. 163; Secor v. Singleton, 35 F. 376.
The McKelvey Company although not a party to the original action is liable for attachment for contempt: Re Lennon, 166 U.S. 548; York Mfg. Co. v. Oberdick, 11 Pa. D.R. 616; Titusville Iron Co. v. Quinn, 13 Pa. Dist. 416; People, ex rel., Stearns v. Man, 84 N.Y.S. 965.
The contracts made by the petitioner with its subscribers do not create or tend to create a monopoly on the part of the petitioner nor are they repulsive to or in conflict with the so-called antitrust statutes of the United States: Leslie v. Lorillard, 110 N.Y. 519; United States v. Reading Co., 226 U.S. 324; Whitwell v. Continental Tobacco Co., 125 F. 454.
Before Orlady, P. J., Henderson, Kephart, Trexler and Williams, JJ.
This is an appeal from an order of the court in an attachment for contempt. The proceeding before us is in the nature of a certiorari and as such must be governed by the rules controlling such appeals. The only question which can properly be raised is whether the court below exceeded its jurisdiction in holding the petitioner for a contempt and in imposing on him a fine therefor. We do not revise the case upon its merits. Every fact found by the court below is taken to be true and every intendment is to be made in favor of their record if it appears that they proceeded within their jurisdiction. We are not at liberty, therefore, to consider the testimony or inquire whether the facts as they appear upon the hearing justify the action of the court below. It is upon the theory that the judgment and the decree of the court was a nullity that we are authorized to reverse its action: Case of Hummell and Bishoff, 9 Watts 416; Palmer v. Central Board of Education, 40 Pa.Super. 203; In Re Lennon, 166 U.S. 548.
On the 17th of October, 1908, the court below entered a decree enjoining the defendant, McKelvey Hughes Company, " their agents, attorneys, solicitors and representatives, from inducing subscribers under contracts with the plaintiff from in any manner violating the said contracts, and also from inducing the collectors of plaintiff's trading stamps from breaking the conditions under which said trading stamps, trading stamp books, and trading stamp pads were issued by the plaintiff, and received by said collectors, and likewise also from buying, selling, exchanging, trafficking and dealing in plaintiff's trading stamps, trading stamp books and trading stamp pads." Shortly after the decree a number of the members of the defendant company organized a new company, called McKelvey Company, and conducted a trading stamp business in Allegheny County in the name of the Sterling Stamp Co. The court below, on the 20th of November, 1909, attached for contempt this new concern, with a number of the agents, and adjudged them guilty and imposed fines. Subsequent to this the McKelvey Company changed its name, making " The" a part of the name; it was composed of the stockholders and officers of the old company. It employed W. W. Sellard as its manager. He had originally been employed by the plaintiff and was instrumental in having instituted the former equity proceedings. The three other defendants were likewise employees of the plaintiff and they were subsequently employed by Sellard under " The McKelvey Company."
We are not concerned with the rightfulness of the decree entered in the original proceeding; it is not a matter open to question. It stands as the law with respect to the controversy between the parties. In passing we might say that there are a number of cases wherein the authority of the court to enter a decree of this nature has been sustained: Sperry & Hutchinson Co. v. Pommer, 199 F. 309; Sperry & Hutchinson Co. v. Louis Weber & Co., 161 F. 219. This latter case reviews the authorities considering the question of authority.
When the injunction was issued against this corporate body it was binding on its members acting for the corporation, its officers, employees and agents and all persons interested who knew of the existence of the decree. When persons connected with such defendant, controlled by the operation of the decree, formed another corporation for the purpose of evading the decree of the court, and continuing, under the guise of a new corporation, the unlawful acts enjoined, the original decree was just as effective against the new concern as it...
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