Opinion of the Court.

nately it did not stop with the tripartite agreement and the action taken under it, but went on to Resolution C, with its honor roll and white list. It is urged that these were merely further steps in the general combination and conspiracy, to get rid of the aggressive cutter, on which all were determined, and for which, therefore, by whomsoever taken all were bound. But this fails to note several things. Speaking broadly, no doubt there was a general purpose, or conspiracy, if you will, to drive the plaintiff and others like him out of business, to which in entering into the tripartite agreement the parties committed themselves. At the same time, however, there was a selection of methods. Not only was a general policy declared for, but a definite line of action under it, adopted after extended consideration and conference, which could not be varied from at will. In accepting the tripartite plan, they did not necessarily agree to anything and everything which might be done in its name, and particularly not to Resolution C, which was recognized as a new and decidedly advanced step, expected to work a radical change. As already stated, this project emanated from the National Retail Druggists' Association, in annual convention assembled at Cleveland in 1902. But even

among the retailers there were those who doubted the propriety, [30] as well as the legality, of it; as witness the remarks of the president, at the annual meeting just before that, at which, having been proposed, it was promptly voted down. Nor was it ever adopted by the proprietors or the wholesalers as a body; the only assent given to it being individual, and by no means by all. This was secured by direct appeal, and the circulars sent out were addressed to "Manufacturers and Dealers in Non-tripartite Goods"; showing that a different class was intended to be reached.

No connection, except the most general one, is thus established between the tripartite agreement and Resolution C. and they are not to be taken as one and the same plan. They may not differ much in principle, but they do decidedly in results; pressure being put upon the aggressive cutter as it had not been by any means before. By the one, he was

Opinion of the Court.

merely deprived of patent medicines, as to which, right or wrong, the proprietor might feel that he had a certain freedom to sell or withhold, the same as is argued here; but by the other, he was cut off from the most ordinary druggists' supplies, even toothbrushes and sponges being denied. A retailer can not do much, it is true, without proprietary goods on his shelves; but without drugs and pharmaceuticals he can not put up a sigle prescription, and might as well go out of business; and that, indeed, was what Resolution C was designed to bring about. This was an excursion into a new field, and to whatever else short of that the proprietor or wholesaler was committed, he might not care to go that far. He was at least entitled to have it distinctly presented for his acceptance before being bound, and his assent is not to be implied simply because he had agreed to what had gone before. He did not put himself indiscriminately and to all lengths into the hands of his associates. The trade recognized that this was the case, and that there were classes among the wholesalers, as shown by the publication called 'Notes," of May 21, 1904, where those operating under the tripartite agreement are set apart from those operating under Resolution C. This may not be conclusive, but it is significant, and confirms, as it corresponds, with our own views.

66

As distinguished by parties, also, the combination was new. No doubt there were many who had agreed to the tripartite plan, who also agreed to Resolution C. But there were some who did not, who are defendants here, as well as some who agreed to the resolution alone. They divide on these lines, and can not be brought together as one, so far as anything has been shown; and neither, as the result, can a joint action be maintained. As the case stands, however, all are made liable without distinction, for all that has been done, both under the tripartite agreement, as well as Resolution C; both being put in evidence against them all. It may be that a person who joins a conspiracy at an advanced stage of it makes himself party to what has been done in pursuance of it before. 3 Greenl. Ev. § 93, Lewis Ed. 8 Cyc. 658. But this must be with knowledge, and in promotion of the com

Opinion of the Court.

mon cause. And even though, upon this basis, those wholesalers, who, with knowledge of the existing purpose to drive aggressive cutters out of business, lent themselves to this design, by denying him their goods as called for by Resolution C, could be held for the damages resulting from the whole scheme, still, as already pointed out, there is too wide [31] a divergence between the original tripartite plan and this latter extreme development of it to make those who merely agreed to the one committed irretrievably and without question to both.

Upon the whole case, therefore, we reach the conclusion that Resolution C was inadmissible to charge those who had not assented to it, and should not have been received in evidence, nor anything done under it. The wrong which was committed by its adoption and enforcement was separate and distinct from that which resulted from entering into and carrying out the tripartite plan, as were also the damages experienced therefrom. The plaintiff in this respect pressed his case too far. He had a good one against some of the defendants under the tripartite agreement, and another against others under Resolution C, and against some, no doubt, upon both, but not against all; and there was the mistake. A joint tort being charged, not only had it to be proved as laid (Howard v. Union Traction Co., 195 Pa. 391, 45 Atl. 1076; Wiest v. Traction Co. 200 Pa. 149, 49 Atl. 891, 58 L. R. A. 666; Rowland v. Philadelphia, 202 Pa. 50, 51 Atl. 589), but the defendants had all to be liable for all that was resolved upon or done. This, in the view we take of it, was not the case, and the judgment must therefore also be reversed upon this ground.

This reversal is general, and applies to all the defendants, which renders it unnecessary to consider the special argument which was made for some. It will be for the trial judge, when the case comes up again, to determine, in the light of what has been said, how far they and others can be held. Judgment reversed, and a new trial awarded.

Syllabus.

[823] UNITED STATES v. MACANDREWS & FORBES CO. ET AL.

(Circuit Court, S. D. New York. December, 1906.)

[149 Fed. 823.]

MONOPOLIES-COMBINATIONS IN RESTRAINT OF INTERSTATE COMMERCEINDICTMENT.--An indictment under section 1 or 2 of the anti-trust law of July 2, 1890 (chapter 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]), for engaging in a combination in restraint of interstate commerce, or for attempting to monopolize a portion of the same, sufficiently sets out the time of the combination or attempted monopoly when it alleges the time when the several acts relied on to establish the offense were done, and it is not essential to set out the precise time when the purpose was formed or the plan of the combination or attempted monopoly was first devised.

[824] SAME-COMBINATION AND CONSPIRACY.-Such an indictment for engaging in a combination and also for a conspiracy in restraint of interstate commerce considered, and held, to sufficiently describe the combination and conspiracy.

INDICTMENT-DUPLICITY.—An indictment under the anti-trust law of July 2, 1890 (chapter 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]), charging in separate counts a combination and a conspiracy in restraint of interstate trade and an attempt to monopolize a portion of such trade, all based in the same transactions, is not bad for duplicity as to either count, on the theory that each alleged overt act set out to support the charge of conspiracy is charged as a separate offense.

[Ed. Note. For cases in point, see Cent. Dig. vol. 27, Indictment and Information, §§ 337-349.]

MONOPOLIES-COMBINATIONS IN RESTRAINT OF INTERSTATE COMMERCEINDICTMENT-JOINDER OF DEFENDANTS-CORPORATIONS AND OFFICERS.— In an indictment under the anti-trust law of July 2, 1890 (chapter 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]), the offenses thereunder being made misdemeanors, all who aid in their commission may be charged as principals, and a corporation and its officers, who personally participate in committing the same, may be joined as defendants, although their acts may have been separate and not done at the same time.

SAME-NATURE OF SCHEMES PROHIBITED-EFFECT ON INTERSTATE COMMERCE. Whether any given business scheme falls within the prohibition of the anti-trust law of July 2, 1890 (chapter 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]), as a combination or conspiracy

Syllabus.

in restraint of interstate commerce, or an attempt at monopoly of a portion thereof, is to be determined by its effect on interstate commerce, which need not be a total suppression of trade nor a complete monopoly, but it is sufficient if its necessary operation tends to restrain interstate commerce, and to deprive the public of the advantages flowing from free competition.

[Ed. Note. For cases in point, see Cent. Dig. vol. 35, Monopolies, §§ 10-14.]

SAME. A secret arrangement between two corporations, which together produced about 85 per cent of all the licorice paste consumed in the United States and sold to consumers throughout the country, by which they ceased competition, fixed from time to time the prices at which each should sell, and apportioned the customers between them, and also by concerted action secured contracts with their chief, if not only competitors, which enabled them to control either the output of such competitors or the prices at which and the persons to whom they should sell, and in pursuance of which scheme they were enabled to and did advance the price of the article to all purchasers nearly 50 per cent within a few months, was one directly affecting interstate commerce, and constitutes a combination and conspiracy in restraint of such commerce, and an attempt to monopolize a portion of the same, within the prohibition of the anti-trust law of July 2, 1890 (chapter 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]).

[Ed. Note. § 13.]

For cases in point, see Cent. Dig. vol. 35, Monopolies,

SAME JOINDER OF DEFENDANTS IN INDICTMENT.-In an indictment against such corporations under the statute, their presidents, who are alleged to have personally made the arrangement and participated in carrying it out, may be joined as defendants, and cannot claim immunity on the ground that they were not personally engaged in interstate commerce.

CORPORATIONS-CRIMINAL RESPONSIBILITY-CONSPIRACY.-A corporation may be liable criminally for the crime of conspiracy. [825] MONOPOLIES-INDICTMENT UNDER ANTI-TRUST LAW-JOINDER OF DEFENDANTS.-A number of defendants may be charged jointly, under section 2 of the anti-trust law of July 2, 1890 (chapter 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]), with the crime of attempting to monopolize a part of interstate commerce.

On demurrer to indictment.

Henry L. Stimson, U. S. Atty., and Edwin N. Hill, Special U. S. Atty. (Henry W. Taft, Felix H. Levy, Edwin P. Grosvenor, and Oliver E. Pagan, special assistants to the Attorney General, of counsel).