Udelavitz v. Idaho Junk House

Decision Date07 June 1928
Docket Number5037
PartiesWILLIAM UDELAVITZ and SAMUEL UDELAVITZ, Co-partners, Doing Business Under the Firm Name and Style of the TWIN FALLS JUNK HOUSE, Respondents, v. IDAHO JUNK HOUSE, ANNA KOPPEL, Doing Business Under the Firm Name of IDAHO JUNK HOUSE, ANNA KOPPEL, HARRY KOPPEL, Proprietor of the IDAHO JUNK HOUSE, HARRY KOPPEL, M. SLATKIN, W. A. CLAUDIN, and ELIDGE HOLTERMAN, Appellants
CourtIdaho Supreme Court


1. In action for damages and injunction for alleged violation of the state Anti-trust Law (C. S., sec. 2531 et seq.) by combination and conspiracy between defendant to drive plaintiff out of business, where two defendants were merely employees and agents of other defendant, who was sole owner of competing business, no combination or conspiracy could exist between defendants since acts of the two defendants were the acts of the other.

2. In suit for injunction and damages for alleged violation of state Anti-trust Law (C. S., sec. 2531 et seq.), by attempting to drive plaintiff out of the junk business evidence held not to show alleged persistent and systematic paying of more than local market price, since defendants have right to outbid plaintiffs in local market, so long as they were, or honestly thought they were, realizing a profit on their entire local business.

3. One is not guilty of unfair competition unless, with direct purpose of destroying his competitor's business, he forces prices higher than he can honestly believe will yield a profit when eventually disposing of commodities purchased.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. Wm. A. Babcock, Judge.

Action for damages and an injunction under state Antitrust Law. Judgment for plaintiffs. Reversed.

Decree reversed and injunction dissolved. Costs to appellants.

Barber & Barber and S. L. Hodgin, for Appellants.

The allegations as to paying more than the market price do not mean paying more than would permit a profit.

The term "market price" has no hard and fixed meaning it is the current price, the sum fixed by the consensus of buyers and sellers; the general or ordinary price; the price fixed in trade by the highest bidder and lowest offerer; the price fixed in contemplation of the range of the entire market and the average of prices as thus found. (McGarry v. Superior Portland Cement Co., 95 Wash. 412, Ann. Cas. 1918A, 572, 163 P. 928; McGilvra v. Minneapolis, St. P. & S. S. Co., 35 N.D. 275, 159 N.W. 854, 856; Sloan v. Baird, 162 N.Y. 327, 56 N.E. 752; Parmenter v. Fitzpatrick, 135 N.Y. 190, 196, 31 N.E. 1032; Peninsular Naval Stores Co. v. State, 20 Ga.App. 501, 93 S.E. 159, 161; Carey Lithograph Co. v. Magazine & Book Co., 70 Misc. 541, 127 N.Y.S. 300, 302; 38 C. J. 1261.)

The complaint does not allege nor the record show that respondents would have made any profit in 1924 or 1925 in the absence of appellants' prices, even though it be considered that they made a profit for some months in 1923. ( Casper v. Klippen, 61 Minn. 353, 52 Am. St. 604, 605, 63 N.W. 737; California Press Mfg. Co. v. Stafford Packing Co., 192 Cal. 479, 32 A. L. R. 118, 126, 222 P. 345; 8 R. C. L. 438, 439; 17 C. J. 795-797.)

There is no restraint so long as the exercise of such rights in no way deprives competitors of the same rights or obstructs them in the use of their rights to fix the prices or their own terms of sale, or the customers to whom they shall dispose of them, so long as their right to approach customers on equal terms with the equal chance of making a purchase is not invaded. (Whitwell v. Continental Tobacco Co., supra; United States v. Patterson, 222 F. 599, 138 C. C. A. 123.)

It is the policy of the law that competitive conditions shall be maintained in trade. But this being true does not read into the statute a denunciation of all agreements that may restrain competition without regard to their purpose or direct effect to restrain trade and commerce. (United States v. Du Pont de Nemours & Co., 188 F. 127, 151; Bigelow v. Calumet Hecla Min. Co., 167 F. 704; United States v. American Naval Stores Co., 172 F. 455; Baker-Whitley Coal Co. v. Baltimore & O. Ry. Co., 176 F. 632; Virtue v. Creamery Package Co., 179 F. 115, 102 C. C. A. 413; Martell v. White, 185 Mass. 255, 102 Am. St. 341, 346, 69 N.E. 1095, 64 L. R. A. 260.)

Where the witness was president and secretary of the plaintiff corporation he was permitted, over objection, to testify as to the amount and price of goods sold the defendant. On cross-examination he testified he knew of the amount because that was according to the books, though he did supervise the shipments and personally saw to part of them. The books were not offered. Held error. (Eaton Chem. Co. v. Doherty, 31 N.D. 175, 153 N.W. 966; 22 C. J. 989; Houston & T. C. R. Co. v. Washington (Tex. Civ. App.), 127 S.W. 1126; Jones v. Journey, 2 Ala. App. 488, 56 So. 850; Womack v. Myrick Lbr. Co., 200 Ala. 591, 76 So. 949; Blume v. Newman, 65 Fla. 281, 61 So. 590; Zimmerman v. Baltimore etc. Co., 242 Pa. 444, 89 A. 461; Equitable Trust Co. v. Central Trust Co., 145 Tenn. 148, 239 S.W. 171, 179.)

"It must not be overlooked that in a suit alleging conspiracy between two or more persons the foundation of the action is the unlawful combination. . . . If the subsequent acts do not show, or tend to show, the prior unlawful combination and purpose, the very foundation of the action, it is clear that plaintiff has failed to make out his case, and it is the duty of the court to say so. . . . When conspiracy is alleged it must be proven by full, clear, and satisfactory evidence. . . . Disconnected circumstances, any of which, or all of which, are just as consistent with a lawful purpose as with an unlawful undertaking are insufficient to establish a conspiracy." (Ballantine v. Cummings, 220 Pa. 621, 70 A. 546, 550; 12 C. J. 640.)

Bothwell & Chapman, for Respondents.

An agreement or conspiracy for the purpose of driving another out of business, regardless of whether it is followed by efforts to carry it into effect, constitutes a violation of C. S., sec. 2534. (United States v. Trenton Potteries Co., 273 U.S. 392, 47 S.Ct. 377, 71 L.Ed. 700; United States v. Bopp. 237 F. 283; Knauer v. United States, 237 F. 8, 150 C. C. A. 210; United States v. Rintelen, 233 F. 793; United States v. Kissel, 173 F. 823; Langenberg Hat Co. v. United Cloth Hat Co., 266 F. 127.)

The testimony of the witness Udelavitz as to the profits made by respondents from his own knowledge was not subject to the best evidence rule, and was admissible. (Kinlough v. City of Maplewood (Mo. App.), 201 S.W. 625; Keene v. Meade, 3 Pet. (U. S.) 261, 7 L.Ed. 581; McCants v. Thompson, 27 Okla. 706, 115 P. 600; Central Commercial Co. v. Jones-Dusenbury Co., 251 F. 13, 163 C. C. A. 263; 22 C. J. 990, sec. 1240; Schmidt & Co. v. Lightner, 185 Mo.App. 546, 172 S.W. 483; Doolan v. Heiser, 89 Conn. 321, 94 A. 354; Cowdery v. McChesney, 124 Cal. 363, 57 P. 221; Paperno v. Michigan Ry. Engineering Co., 202 Mich. 257, 168 N.W. 503.)

Conspiracies to form illegal combination in restraint of trade, etc., need not be established by direct evidence, but may be inferred from facts and circumstances or proved by circumstantial evidence. (Eastern States Retail Lumber Dealers' Assn. v. United States, 234 U.S. 600, 34 S.Ct. 951, 58 L.Ed. 1490, L. R. A. 1915A, 788; McNear v. American & British Mfg. Co., 42 R. I. 302, 107 A. 242; United States v. Reading Co., 266 U.S. 324, 33 S.Ct. 90, 57 L.Ed. 243, 183 F. 427; Hale v. Hatch & North Coal Co., 204 F. 433, 122 C. C. A. 619.)

T. BAILEY, LEE, J. Wm. E. Lee, C. J., and Budge and Givens, JJ., concur.



--This is a suit for injunction and damages based upon an alleged violation of the state antitrust law. William and Samuel Udelavitz, plaintiffs and respondents, have been conducting a junk business in Twin Falls since April 12, 1923. About January 1, 1924, the defendant and appellant, Anna Koppel, who owned the Idaho Junk House in Boise, established a branch thereof in Twin Falls. The Boise and Twin Falls houses were respectively managed by Harry Koppel, her son, and Mandel Slatkin, her brother, co-defendants and appellants.

Plaintiffs charged in their complaint that since opening the Twin Falls house, "the said defendants and each of them have combined and conspired and have given direction or authority each to the other, to do and commit the acts hereinafter alleged for the purpose of driving out of business the plaintiffs herein engaged in the junk business at Twin Falls." The acts alleged were that the defendants "have wrongfully and maliciously endeavored to destroy plaintiffs' said business and to compel plaintiffs to abandon the same and to drive plaintiffs out of said junk business at Twin Falls; that to that end the defendants have persistently and systematically paid more than the market price for junk at and in the vicinity of Twin Falls where they were in competition with the plaintiffs." By reason of such acts plaintiffs claimed they had been unable to conduct their business at a profit during the years 1924 and 1925, to their damage in the sum of $ 6,250, reckoned at a profit loss of $ 250 per month. They prayed treble damages, injunctive relief and attorney's fees. Defendants denied any intention to drive plaintiffs out of business, denied the paying of more than the market price and alleged that plaintiffs' losses had been solely due to poor judgment and inefficiency in the conduct of their business. A verdict for $ 1 having been returned, judgment and decree were entered awarding treble damages, an attorney fee, and directing that the said defendants "be and they hereby are...

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  • Bondi v. Jewels by Edwar, Limited
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    • California Court of Appeals Court of Appeals
    • November 26, 1968
    ...is that the acts of the agents or employees in the operation of the business are the acts of the principal. (See Udelavitz v. Idaho Junk House (1928) 46 Idaho 441, 268 P. 15; Light Corrugated Box Corporation v. Southern Kraft Corp., et al. (Sup.1940) 20 N.Y.S.2d 66; Blaustein v. Pan America......

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