Montague & Co. v. Lowry

after making the foregoing statement, delivered the opinion of the court.

The question raised by the plaintiffs in error in this case is, whether this association, described in the foregoing statement of facts, • constituted or amounted, to an agreement or combination in restraint of trade withii^ the meaning of the so-called Anti-Trust Act of July 2, 1890 ?

The result of the agreement when carried out was to prevent the dealer in tiles in, San Francisco, who was not a member of the association, from purchasing or procuring the same upon any terms from any of the manufacturers who were such members, and all of those manufacturers who had been accustomed to sell to the plaintiffs were members. The non *45 member dealer was also prevented by the agreement from buying tiles of a dealer in San Francisco who was a member, excepting at a greatly enhanced price over what' he would have paid to the manufacturers or to any San Francisco dealer who was a member, if he, the purchaser, were also a member of the association. The agreement, therefore, restrained trade, for it narrowed the market for- the' sale of tiles in California. from the manufacturers and dealers therein in other States, so that they could only be sold to the members of the association, and it enhanced prices to the non-member as already stated..

The plaintiffs endeavored in vain to procure tiles for the purposes of their business from these tile manufacturers, but the latter refused to deal with them because plaintiffs were not members of the association. It is not the simple case of manufacturers of an article of commence between the several States refusing to sell to certain other persons. The agreement is between manufacturers and dealers belonging to an association in which the dealers agree not to purchase from manufacturers not members of the association, and not-to séll unset tiles to any one not a member of the association for less than list prices, which are more than fifty per cent higher than the prices would be to those who were. members, while the .manufacturers who became members agreed not to sell to any one not a member, and in case of a violation of the. agreement they were subject to forfeiting their membership. ' By reason of this agreement, therefore, the market for tiles is, as we have said, not only narrowed but' the prices charged by the San Francisco . dealers for the unset tiles to those not members of the association are more than doubled. It is urged that' the sale of unset tiles, provided for in the seventh section of the by-laws, is a transaction wholly within the State of California and is not in any event a violation of the act of Congress which applies only to commercé between the States. The provision as to this sale is but a part of the agreement, and it is so united with the rest as to be incapable of separation without at the same time altering the general purpose of the agreement. The whole agreement is to be construed as *46 one piece, in which the manufacturers are parties as well as the San Francisco dealers, and the refusal to. sell on the part of the manufacturers is connected with and a part of the scheme which includes the enhancement of the price of the unset tiles by the San Francisco dealers. The whole thing is so bound together that when looked at as a whole the sale of unset tiles ceases to be a mere transaction in the State of California, and becomes part of a purpose which, when carried out, amounts to and is a contract or combination in restraint of interstate trade or commerce.

Again, it is contended the sale of unset tiles is so small in San Francisco as to be a negligible quantity ; that it does .not amount to one per cent of the business of the dealers in tiles in that city. The amount of trade in the commodity is not very material, but' even though such dealing heretofore has been small, it would probably largely increase. When those who formerly purchased tiles'from the manufacturers are shut out by reason of the association and their non-ineinbership therein from purchasing their tiles from those manufacturers, and are compelled to purchase them from the San Francisco dealers. Either the extent of the-trade in unset tiles would, increase between the members of the ássociation and outsiders, or else the latter would have to go out of business, because unable to longer compete with their rivals who were members. ■ In either event, the combination, if carried out, directly effects a restraint of interstate commerce.

It is also contended that, as the expressed object of the association .was to unite therein all the dealers in San Francisco and vicinity, the plaintiffs had nothing more to do than join the association, pay their fees and'dues and become like one of- the other members. It was not, however, a matter of course to permit any dealer to join. The constitution only .provided for “all acceptable dealers” joining the association. -As plaintiffs were not invited to be among its founders, it would look as if they were not regarded as acceptable. However that may be, they never subsequently to its formation applied for admission. It is plain that the question of their admission, if they had so applied, was one to be arbi *47 trarily determined by the association. The constitution provided for the appointment of ah executive ■ committee, whose duty it was to examine all applications .for membership in and to report on the same to the association, after which it was to decide whéther the applicants should be admitted or not. If they were not acceptable the applicants would not be admitted, and whether they were or not, was a matter for the. arbitrary .decision of the association. Its- decision that they wefe not acceptable, was sufficient to bar their entrance.

Again, it appears that plaintiffs were not eligible under the constitution, because’ they-did not always carry stock worth $3,000, which by section 1 of article Ij was made a condition of eligibility to membership. True, it was stated in evidence that this provision had not been enforced, but there was no averment Or proof that it had been repealed, and there was nothing to prevent its enforcement'-at any time that an application was máde by any one who would not come up to the condition. The case stands, therefore, that the plaintiffs had not been asked to join the association at its formation; that they did not fill, the condition provided for in its constitution .as to eligibility, and that if they' had applied their application was subject to arbitrary, rejection.

The plaintiffs, however, could not, by virtue of any agreement contained in such association, be legally put under obligation to become members in order to enable them to transact their business as they -had theretofore done, and to purchase tiles as they had been accustomed to do before the association was formed.

The. consequencés of non-membership were grave, if not disastrous, to the plaintiffs. It has already been shown how the prices of tiles were enhanced so far as plaintiffs were concerned, and how by means of this combination interstate commerce was affected.

The purchase and sale of tiles between the manufacturers' in one State and dealers therein in California was interstate commerce within the Addyston Pipe case, 175 U. S. 211. It was not a combination or monopoly among manufacturers simply, ■but one between them and dealers in the manufactured article, *48 which was an article of commerce between the States. United States v. E. C. Knight Company, 156 U. S. 1, did not therefore cover-it. It is not brought within either Hopkins v. United States, 171 U. S. 578, or Anderson v. United States, 171 U. S. 604. In the' first cáse it was held that the occupation of the members of the association was not interstate commerce, and in the other that the subject matter of the agreement did not directly relate to, embrace or act upon interstate commerce, for the reasons which are therein stated at length. Upon examination we think it is entirely clear that the facts in the case at bar bear no resemblance to the facts set forth in either of the above cases and are not'within the reasoning of either. The - agreement directly affected and restrained interstate commerce.

The case we regard as a plain one and it is unnecessary to further enlarge upon it. ,

, - There is one other question which, although of secondary í importance, is raised by the plaintiffs in error. After-the .rendition of the verdict .the plaintiffs below claimed a reason>able attorney’s fee under the seventh section of the act, and ¡made proof of what would be a reasonable sum therefor, from, which it appeared that it would be from $750 to $1,000. The .trial court awarded to the plaintiffs $750. The verdict being only for $500, the plaintiffs in error claimed that the allowance was an improper and unreasonable one. The trial took some five days. The judgment in effect pronounced the association illegal. The amount of the attorney’s fee was within the discretion of the trial court, reasonably exercised,, and we do not think that in this case such discretion was abused.

The judgment is

Affirmed.