Index-Digest. Massachusetts, manufacturing rubber footwear in that State, and was not a dealer in lasts, and only desired to buy lasts for his own use, and not for resale, did not deprive the restraint of trade, so far as it affected plaintiff, of the interstate character necessary to bring it within the Sherman Law, as the restraint or control obtained by the rubber company was a single thing, not confined to Massachusetts, and restricted the trade of the last manufacturers with everybody, including citizens of their own State. Hood Rubber Co. v. U. S. Rubber Co., 229 F., 586. 6 427 124. Action for Damages May be Maintained Under the Clayton Law, Although Federal Trade Commission Has Taken no Action.— An action may sometimes be maintained in a Federal district court to recover damages for alleged price discriminations by defendant against plaintiff in violation of the Clayton Law, although the Federal Trade Commission has taken no action in the premises. Frey & Son v. Cudahy Packing Co., 232 F., 640. 6-384 125. Same-In Action for Damages, All Parties Privy to the General Plan, Properly Joined.—In an action for damages caused by such combination, all of the parties privy to the general plan were properly joined, though the execution of different parts of the plan was confined to individuals. Marienelli (Ltd.) v. United Booking Offices, 227 F., 171. 5-953 126. For Damages Under Sherman Law, Sounds in Tort.-An action under the Sherman Law, section 7, for treble damages for injuries to person or property by reason of unlawful monopoly, is one for a personal wrong, and sounds in tort. Imperial Film Exchange v. General Film Co., 244 F., 987. 6-1045 127. No Rule that Civil Suit Shall Await Trial of Criminal Action.There is no rule that civil suits brought under the Sherman Law to dissolve the combination must await the trial of criminal actions against the same defendants, and whether the trial of the civil action shall be delayed because some of the defendants refuse to testify as witnesses for other defendants is a matter in the discretion of the trial court, and in the absence of abuse, not reviewable. Standard Sanitary Mfg. Co. v. U. S., 226 U. S., 52. 4-651 128. Same-Continuance of, Within Discretion of Trial Court.-The trial court did not abuse its discretion in denying a motion by defendants in a civil suit brought by the Government under the Sherman Law, for an enlargement of time to take testimony, based upon the ground that they had been prevented by the action of the Government in instituting criminal proceedings from properly presenting their defense, in that the Government apprehending that the witnesses for the defense were called to give them immunity from the criminal prosecution then pending, notified them that if they testified Index-Digest. they would do so at their peril, as immunity could only be claimed by witnesses for the Government, whereupon, on the advice of counsel, they refused to testify, leaving the defendants without the benefit of the evidence which they could have given. 57 L. Ed., 107. 4-651 129. Quære, the question not discussed or decided, whether an original action can be maintained in the State courts for injunction and damages under the Sherman Law. Straus v. American Pub. Ass'n, 231 U. S., 237. II. DEFENSES. 1. Indefiniteness, duplicity. 4-856 130. Indefiniteness.—In an action by a corporation for the infringement of elevator patents, an answer alleging as a defense that the plaintiff is an unlawful combination in restraint of trade and in violation of the Sherman Law but which fails to state who are in the combination in the agreement characterized as unlawful, and does not disclose fully and in detail that the combination was entered into after the act took effect, and all the facts necessary to show its illegality, is insufficient for indefiniteness. Otis Elevator Co. v. Geiger, 107 F., 131. 2-66 131. Duplicity.-A declaration in an action brought under section 7 of the Sherman Law to recover damages for a violation of section 1 of the act, which alleges in a single count that defendant entered into a "contract, combination, and conspiracy" in restraint of trade, is bad for duplicity. Rice v. Standard Oil Co., 134 F., 464. 2-633 132. Same.-The Sherman Law makes a distinction between a contract and a combination or conspiracy in restraint of trade. Ib. MULTIFARIOUSNESS. See PLEADING AND PRACTICE. 2-634 133. When General Averment of Injury Insufficient.-Where, in an action by a stockholder of a corporation against defendant, 'the only injury alleged was to the corporation, a general averment that plaintiff had been greatly injured in his business and property was insufficient as an allegation of injury to plaintiff distinct from that to the corporation. Ames v. American Tel. & Tel. Co., 166 F., 822. 3-588 2. Contract in violation of Anti-Trust Act, or of an act of Congress. 134. The defense that a contract is in violation of the Sherman Law, which makes illegal every contract violative of its provisions, may be set up by a private individual when sued Index-Digest. thereon, and, if proved, constitutes a good defense to the action. Bement v. National Harrow Co., 186 U. S., 70. 2-170 135. Same.-Anyone sued upon a contract may set up as a defense that it is a violation of an act of Congress. Ib. 2-169 3. Illegal combination—Purchases from, services. 136. Payment for Services can not be Avoided because Performed by a Trust-Towage.-One who requests and accepts the services of a tug for towage purposes can not escape paying the reasonable value of the services rendered on the ground that the tug owners are members of an association which is illegal under the Sherman Law, relating to trusts and monopolies, The Charles E. Wisewall, 74 F., 802. 1-608 Affirmed, 86 F., 671 (1-850). 137. Payment of Note for Goods Purchased can not be Avoided because Bought from a Trust.-A note made for a balance due on goods bought from a corporation can not be avoided merely because the latter is a trust organized to create and carry out restrictions in trade contrary to the Sherman Law, as that only covers contracts which are themselves in restraint of trade, and does not affect those which "merely indirectly, remotely, incidentally, or collaterally regulate, to a greater or less degree, interstate commerce between the States." Union Sewer-Pipe Co. v. Connolly, 99 F., 354. 2-1 Affirmed, 184 U. S., 540 (2—118). See also Dennehy v. McNulta, 86 F., 825 (1—885). 138. A contract for the sale of merchandise is not rendered illegal by the fact that the selling corporation is a trust or monopoly organized in violation of law, either Federal or State; the contract of sale being collateral and having no direct relation to the unlawful scheme or combination. Chicago Wall Paper Mills v. General Paper Co., 147 F., 491. 2-1027 See also Continental Wall Paper Co. v. Lewis Voight & Sons Co., 148 F., 940 (3-44); 212 U. S., 227 (3-480). 139. Recovery on Collateral Contract by Member of Combination in Restraint of Interstate Trade.-The Sherman Law, section 1, does not invalidate or prevent a recovery for the breach of a collateral contract for the manufacture and sale of goods by a member of a combination formed for the purpose of restraining interstate trade in such goods. Hadley Dean Plate Glass Co. v. Highland Glass Co., 143 F., 242. 2-995 140. The Power to Dissolve a Combination Inconsistent with Right of Individual to Assert Its Illegality as Defense to a Contract.— The power given by the Sherman Law to the Attorney General to dissolve a corporation or combination as violative of that Index-Digest. act is inconsistent with the right of an individual to assert as a defense to a contract on which he is otherwise legally liable that the other party has no legal existence in contemplation of that act. Wilder Mfg. Co. v. Corn Products Ref. Co., 236 U. S., 174. 6-554 141. Same-Party Can Not Assert as Defense to a Suit for Money Fact that Plaintiff Was Organized in Violation of Sherman Law.— In Continental Wall Paper Co. v. Voight, 212 U. S., 227, the contract involved was not held illegal because a party thereto was an illegal combination under the Sherman Law, but upon elements of illegality inhering in the contract itself. In this case, held that a party can not assert as a defense to a suit for money otherwise due under a contract, not inherently illegal, the fact that the party otherwise admittedly entitled to recover is an illegal combination under the Sherman Law. Ib. 6-553 142. Same-Recovery of Purchase Price Can Not be Defeated by a Defense of Contract of Exclusively Dealing with Corporation Suing, or that the Goods Could Not be Resold.-Recovery of the purchase price for goods sold and delivered by a corporation organized in violation of the Sherman Law may not be denied because the goods were sold upon condition which made the payment to the purchaser of his percentage under a proposed profit-sharing scheme devised by the corporation depend upon the exclusive dealing of the purchaser with the corporation during the following year, or because, under the contract of sale, the goods could not be resold. 57 L. Ed., 520. 6549 4. Patents-Illegal combination. 143. Infringement of Patent No Defense that the Owner is an Illegal Corporation under Sherman Law.-The fact that the owner of a patent is a corporation alleged to have been formed in violation of the Sherman Law, and that the patent is alleged to have been assigned to it in furtherance of the illegal purpose to create a monopoly and control the price of an article of commerce, is not available to an infringer of such patent to defeat a suit for the infringement. National Folding-Box & Paper Co. v. Robertson, 99 F., 985. 2-4 144. Same. In an action by a corporation for the infringement of elevator patents, a private defendant was not entitled to urge as a defense that plaintiff was a corporation organized merely for the purpose of holding the legal title to various elevator patents alleging to have been infringed, for the purpose of controlling sales and enhancing prices of elevators and apparatus, without itself engaging in the manufacture and sale of such appliances, in violation of the Sherman Law, since Index-Digest. until the United States has acted and sought to prosecute the plaintiff for violation of such act an infringer of the plaintiff's patent will not be permitted to raise such issue as a defense thereto. Otis Elevator Co. v. Geiger, 107 F., 131. 2-66 145. Infringement Suit can not be Maintained by Combination of Patent Owners against Assignor.-A combination among manufacturers of spring-tooth harrows, whereby a corporation, organized for the purpose, becomes the assignee of all patents owned by the various manufacturers, and executes licenses to them, so as to control the entire business and enhance prices, is void both as to the assignments and licenses, so that the corporation can not maintain a suit against one of its assignors who violates the agreement, for infringement. National Harrow Co. v. Hench, 84 F., 226. 1-746 See also National Harrow Co. v. Quick, 67 F., 130 (1—448); and ACTIONS AND DEFENSES, 79–81. 146. Claim of Unlawful Combination no Defense to Suit for Infringement of Trade-Mark. The claim that a conveyance by one manufacturing corporation to another of all its property, including its trade-marks, trade-names, brands, and labels, contains a provision in violation of the Sherman Law of the United States, is not available as a defense by another manufacturer when sued for infringement or unfair competition in respect to a trade-mark, brand, or label, where it is shown that the same has been continuously used by the grantee as its own, since a time prior to the commencement of the alleged infringement or unfair imitation. Reynolds Tobacco Co. v. Allen Bros. Tobacco Co., 151 F., 833. 3-154 147. Suit for Infringement-Defenses.-That a complainant is itself, or is a member of, a combination in violation of the Sherman Law, is not a defense available in an action for the infringement of a patent, nor does it show a defect in complainant's title. Motion Picture Patents Co. v. Lacmmle, 178 F., 105. 3-765 148. Suit for Infringement.-That the owner of a patent is a party to an illegal combination in restraint of trade does not deprive him of the right to sue for infringement of his patent. Virtue v. Creamery Package Mfg. Co., 179 F., 119. 3-801 149. Same.-Evidence held insufficient to establish a combination or conspiracy in restraint of interstate trade or commerce between two defendants, each of whom brought a suit against plaintiff for infringement of a different patent, which would sustain an action by plaintiff for treble damages under the Sherman Law. Ib. 3-801 150. Suit for Infringement-Allegation of Unlawful Conspiracy.— It is no defense to a suit for infringement of a patent that the complainant and third persons have entered into an illegal combination or conspiracy in restraint of trade; and |