Continental Wall Paper Co. v. Voight & Sons Co., 212 U.S. 227 (1909)

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Continental Wall Paper Company v.

Voight and Sons Company
No. 15

Argued April 24, 27, 1908
Decided February 1, 1909
212 U.S. 227

CERTIORARI TO THE UNITED STATES CIRCUIT

COURT OF APPEALS FOR THE SIXTH CIRCUIT

Syllabus

Where a number of manufacturers situated in different states engaged in manufacturing an article sold in different states, organize a selling company through which their entire output is sold, in accordance with an agreement between themselves, to such persons only as enter into a purchasing agreement by which their sales are restricted, the effect is to restrain and monopolize interstate and foreign trade and commerce, and is illegal under the Anti-Trust Act of July 2, 1890, c. 647, 26 Stat. 209, and so held in regard to a combination of wallpaper manufacturers.

While a voluntary purchaser of goods at stipulated prices under a collateral, independent contract cannot avoid payment merely on the ground that the vendor was an illegal combination, Connolly v. Union Sewer Pipe Co., 184 U.S. 54, a vendee of goods purchased from an illegal combination in pursuance of an illegal agreement can plead such illegality as a defense.

The Court cannot lend its aid in any way to a party seeking to realize the fruit of an illegal contract, and, while this may at times result in relieving a purchaser from paying for what he has had, public policy demands that the court deny its aid to carry out illegal contracts without regard to individual interests, or knowledge of the parties.

The refusal of judicial aid to enforce illegal contract tends to reduce such transactions.

In determining whether a contract amounts to a combination in restraint of interstate trade in violation of the Act of July 2, 1890, all the facts and circumstances will be considered. Addyston Pipe Co. v. United States, 175 U.S. 211, 247.

148 F. 939 affirmed.

The facts appear in the statement of MR. JUSTICE HARLAN.

The Continental Wall Paper Company, a corporation of New York, brought this action against the Lewis Voight & Sons Company, a corporation of Ohio, to recover the sum of $56,762.10 as the alleged balance on an account for merchandise sold and delivered to the defendant.

The petition and answer were both amended. The amended answer contained six separate defenses, the last three of which were made counterclaims and cross-petitions. The plaintiff demurred to the second, third, fourth, and fifth defenses upon the ground that neither of them stated facts sufficient to constitute a defense, and it demurred to the first and second counterclaims and cross-petitions upon the ground that they did not state facts sufficient to constitute a cause of action against the plaintiff. It also replied to the sixth defense and to the third counterclaim.

The cause was submitted in the circuit court on the demurrers, and the court sustained the demurrer to the second, fourth, and fifth defenses and to the first and second counterclaims and cross-petitions, but overruled the demurrer to the third defense. The parties not desiring to plead further, it was adjudged that, upon the allegations of the third defense, the defendant was entitled to judgment (and judgment was entered) dismissing the petition and amended petition, and was likewise entitled to judgment (and judgment was entered) dismissing the first and second counterclaims and cross-petitions. The case was carried by the Continental Wall Paper Company to the circuit court of appeals, where it was assigned for error that the circuit court erred in overruling the demurrer to the third defense, and in dismissing the suit. The circuit court of appeals affirmed the judgment, thereby sustaining the sufficiency of that defense. The case is fully reported in 148 F. 939.

If the facts stated in the third defense -- taking them to be true, as upon demurrer we must do -- are sufficient to prevent any recovery whatever by the plaintiff, it is not necessary to go further and consider any other questions. In view of the peculiar character of the case, it is deemed just to the parties, however much it may lengthen or burden this opinion to do so, to set out that defense fully and in the words of the answer.

The third defense -- the facts stated therein being admitted by the demurrer -- gives the names of numerous companies and firms (more than thirty in number) which formed a combination by the name of the Continental Wall Paper Company, and also sets out the various agreements under which, it was alleged, the combination was organized to restrain and monopolize interstate commerce. The defendant corporation alleged that, on the first day of July, 1898, the National Wall Paper Company was the owner of factories for the manufacture of wallpaper in certain cities in New York, Pennsylvania, New Jersey, and Massachusetts, and that there were like factories owned by persons and corporations in other states; that

all of said companies and firms were engaged in the manufacture of wallpaper and in selling their product in the states where their said manufactories were situated, and in all the other states and territories of the United States and in foreign countries, and were each and all engaged in commerce between the states and territories and with foreign nations, and they produced and sold upwards of ninety-eight (98) percent of all the wallpaper manufactured and sold in the several states and territories of the United States. Contriving and intending and conspiring with each other to form a combination and trust by which to limit the production of wallpaper in the United States, and also to enhance the price thereof to the jobbers, the wholesalers, the retailers, and the consumers of wallpaper, which is an article of commodity of general necessity and use among the United States and foreign countries, and, as such, was and is used and sold everywhere for the preservation, protection, and decoration of buildings and dwelling houses; and, contriving and intending and conspiring with each other to unlawfully control and restrain trade and commerce between the several states and territories of the United States, and with foreign countries, the firms and corporations hereinbefore mentioned agreed with each other that, while said corporations and persons retain the ownership of their several plants and business, and preserve and continue their separate identities, and operate said several manufactories and business as before, the control of said several businesses, and all matters relating to and affecting the production of said establishments, and the prices and sale of wallpaper manufactured thereby should be placed under the control of a committee to be appointed by said several corporations and firms, each to have a voice in such appointment, in proportion to the capacity of the several factories owned by them respectively; that said committee should adopt rules and regulations governing the manner of conducting the business of all said persons, firms, and corporations, the hours said factories, owned by them, should be operated, the patterns of wallpaper to be manufactured by them, the times when samples of the goods to be manufactured for the ensuing season should be submitted to a pricing committee, appointed by said committee, to enable it to classify and fix the list prices thereof; to fix and determine list prices, discounts, terms of sale, equalization of freight rates, and all other matters affecting the production and regulation of prices, and the classification of the dealers in wallpaper in the United States, and the prices at which wallpaper should be sold to and by such several classes, and the division of the profits thence arising among said corporations and firms not in proportion to their production and sales, but in proportion to their capacity; and, further, that, to secure the faithful performance by each of said persons and corporations of the provisions of said trust agreement, they should each pay a sum into a common pool, in proportion to the capacity of their respective manufactories, which said sum should be forfeited by any of said manufacturers who should break said agreement, compete with the other parties to said agreement, or sell at other or different prices than those to be fixed by said committee.

* * * *

The National Wall Paper Company, for itself and the members of said combination, hereinbefore alleged to be represented by it, should select three (3) so-called directors of said the Continental Wall Paper Company, and said other firms and corporations should select three (3) other so-called directors of said company, which six (6) so-called directors should select a seventh (7th), who should decide all disputed matters; that said corporation and firms, calling itself, or themselves, respectively, the vendor, should sign a printed contract or agreement with said the Continental Wall Paper Company, calling itself the company, a copy of which contract or agreement is attached hereto marked "Exhibit 1" [which is given in the margin{1}], the said agreement being printed with blanks for the necessary signatures as well as numbers of shares allotted, the sum to be paid therefor, and the name of the so-called vendor.

For the purposes and with the intentions aforesaid, it was further agreed that said the Continental Wall Paper Company should, in some form so as to disguise the real nature of the transaction, compel all dealers in wallpaper, whether jobbers or wholesalers, to sign an agreement obligating the jobbers or wholesalers to buy from no one but said members of said combination and trust, and at the prices fixed in schedule B, attached to said "Exhibit 1," and likewise an agreement by such jobbers not to sell goods to dealers other than jobbers at lower prices or upon better or more favorable terms than those shown in schedule C, attached to said "Exhibit 1," under the penalty that, if they refused so to do, no wallpaper should be sold to such jobber by any of said corporations or firms, and that, thereby, such jobbers should be driven out of business, and that, in some form or other, so as to disguise the real nature of the transaction, all wholesalers other than jobbers should be compelled to make an agreement in writing, with said corporations or firms, not to sell such goods, on terms better or more favorable than those specified in schedule C, attached to said "Exhibit 1," under penalty that, if such wholesaler refuse to sign and carry out said agreement, no wallpaper would be sold to him by any of said corporations or firms, and he should be driven out of business, and that the profits made by such prevention of competition and enhancement of price should be divided among said corporations and firms nominally as dividends upon said stock, but in reality in proportion to their respective holdings, as aforesaid, and that said committee of said corporation and said firms, calling themselves such directors, should regulate all the matters hereinbefore averred, prevent competition between said corporations and firms, limit production and enhance prices, and close all channels by which the consumer or retailer could obtain wallpaper from the producers thereof.

In pursuance of said agreement, said plaintiff was nominally incorporated with the stock aforesaid, divided into the number of shares aforesaid, of the par value aforesaid, which were divided among the parties to said agreement aforesaid, in the manner aforesaid, and said contracts signed by said the National Wall Paper Company and said persons and corporations being at once, subscription for stock by said so-called vendors, the acceptance of such subscription by said the Continental Wall Paper Company, and by it, nominally, each so-called vendor sold unto the company, and the latter agreed to purchase, the entire product of wallpaper manufactured by each of said vendors for the period from July 20th, A.D. 1898, to the first day of July, A.D. 1899.

Said contract further fixed prices at which the merchandise should be nominally sold to the company, said prices being the cost of production with a slight profit added thereto sufficient to cover incidental expenses merely. The prices at which said goods were to be nominally sold by said so-called vendors to said company are set forth in the schedule attached to said "Exhibit 1" and marked "A."

Said agreement further nominally provided that the goods pretended to be acquired by the company from the so-called vendor, which were to be sold by jobbers, should be so sold by the company, and not by the vendor, for the account of the company, but that the goods acquired by the company from the so-called vendor, which should be sold to wholesalers other than jobbers, should be sold by the so-called vendor for the account of the company.

The schedule attached to said agreement contained a list of prices for all commodities in the wallpaper line, which were called "list" or "road price," and said contract provided that sales made to jobbers should be made at discounts from said "list" or "road prices" fixed in the schedule marked "B," annexed to said "Exhibit 1," but that, in all cases in which the goods were manufactured at places other than the cities of New York or Philadelphia, and sold to jobbers, the vendor should equalize the freights with either of the said cities, out of the proceeds receivable for such goods.

In reality, the agreement was, and so the business was carried on, that the manufacturers should maintain sample rooms and selling agents, and should solicit and receive the orders from all wholesalers, whether jobbers or so-called "road" or "quantity buyers;" that the entire business should be done by said so-called vendors, but payments should be made by the jobbers to the so-called company, and by the wholesalers, other than jobbers, directly to the so-called vendors.

Said contract further provided, in order to protect said corporations and firms against competition from each other, and to insure against violation of said agreement, or any of them, that, from time to time, invoices should be supplied at once to the customer and to the company, upon shipment and delivery of such goods, specifying quantities and road prices; that each vendor should furnish to the company at periods stated, just, true, and sworn statements of all shipments and deliveries of merchandise made by the vendors direct to the purchasers, which statements should contain the names of the purchasers, the character of the goods sold, and the prices at which they were sold, so that the company might receive the difference between the prices at which the goods were nominally billed to said company, and at which they were sold to the purchaser, to the end that this difference, being the net profits derived from such purchase and sale, should be divided among such corporations and firms, in proportion to the capacity of their respective businesses, determined as aforesaid, without regards to the amount sold by each.

The prices at which, and the terms upon which, goods were to be sold by the vendors to all wholesalers other than jobbers, were designated "road" or "list" prices, and were contained in the schedule marked "C," annexed to said "Exhibit 1," and forming a part thereof.

For the further purpose of carrying out said agreement, and ascertaining said net profits, and for further disguising the real nature of the transaction, it was provided that the so-called vendor should receive from sales made by it to so-called "quantity buyers," the difference between the discounts allowed to those designated in the classification hereinbefore referred to as "second-class jobbers" and the discounts provided in said agreement to be made to purchasers styled, in said schedules, "quantity buyers" in which the vendor is allowed the quantity discount, except that, where special and exclusive goods were sold, there should be an allowance of thirty (30 percent) percent discount to said vendor.

Said agreement further stipulated that the prices of goods as fixed by said schedules A and C might be altered from time to time, but the discounts allowed to jobbers should not be altered at any time during the term of the agreement.

Said written contract further provided that the so-called vendor should make collections of accounts for goods sold to wholesalers other than the jobbers, but that the company should collect the proceeds of sales to the jobbers, and that accounts should be stated between the so-called vendors and the company at stated periods, and the account accompanied by payment, by the so-called vendor, to the so-called company, of the difference between the prices at which the goods were to be billed to the company and the prices at which the so-called vendors had agreed to charge the "quantity buyers."

It was further stipulated in said agreement that monthly divisions should be made by said company of at least thirty (30) percent of the "road prices" of goods shipped to jobbers by the company.

For the further purpose of protecting said corporations and firms and individuals from each other, preventing and stifling competition, and enforcing said combination, trust, and monopoly, each of said corporations and vendors gave the company the right, and made it the duty of the company, to audit the books of account of said so-called vendors at such times and in such manner as the company might, from time to time, deem necessary of proper. It was further stipulated that this right to examine and audit the books was of the essence of the agreement, and that a failure on the part of the so-called vendor to permit the same should operate as a breach of the contract, entitling the company to abrogate the agreement, to recover such damages as it might be able to establish, and to the forfeiture of the stock held by said vendor in such company.

It was further provided that said so-called company should appoint an auditing committee from its directors, which should establish such a system of bookkeeping as it thought advisable.

* * * *

It was further a part of said agreements, though not reduced to writing, save as it set forth in said exhibit that all jobbers and other wholesalers of wallpaper should be forced to sign an agreement, binding themselves to purchase their entire stock of wallpaper, nominally either from plaintiff of from said corporations of firms at prices fixed in said "Exhibit 1," and that they should only sell at prices fixed in the schedules attached to said "Exhibit 1," under the penalty, which the combination of all of said corporations and firms enabled them to enforce, that such jobbers or wholesalers, in case of refusal to accede to the terms so imposed, or in case of violation thereof, should be unable to buy wallpaper; should be driven out of business, and should sacrifice the good will and capital therein invested.

* * * *

In the further carrying out of said purpose, said plaintiff and other persons, natural or artificial, engaged in the manufacture and sale of wallpaper in different states of the Union, and in trade and commerce between the several states and foreign countries, whose names and locations these defendants are unable to state, entered into contracts substantially similar to "Exhibit 1," except that, instead of such persons pledging stock in plaintiff as security for the performance, by them, of the stipulations of said contract, they gave other security, the nature of which these defendants are unable to state, and which such other persons assume obligations, and gave to said plaintiff rights and powers, and said plaintiff exercised, as to them, such rights and powers, as were created by said instrument "Exhibit 1," and were exercised by plaintiff and its officers and directors in relation to the persons, natural or artificial, who were theretofore members of such combination and trust.

In the further carrying out of said scheme to stifle competition, to restrain commerce between the states and territories of the United States and with foreign countries, to unduly and unreasonably enhance prices, it was further agreed between the members of said combination and trust that the so-called directors of plaintiff, being really a committee appointed, as aforesaid, by said the members of said trust or combination, should arbitrarily classify the wholesale dealers of wallpaper in the United States and territories thereof, into two (2) classes; namely, jobbers and "road" or "quantity buyers;" that they should further arbitrarily classify the jobbers into "first class," and "second class" and "third class" jobbers; that they should further arbitrarily classify the other wholesalers into "road" or "quantity buyer," and "special buyers;" that, being thus classified, they should all be compelled to sign written agreements, nominally with said company, really with said members of said combination or trust, obligating them to buy their entire stock of merchandise from said company.

A copy of said agreement, so to be signed by said jobbers, is attached hereto, marked "Exhibit 2" [which is in margin{2}] and made part thereof, the same being printed forms with blanks for names, dates, and amounts of purchases.

To conceal the fact that it was an agreement to purchase from no one but said company, and the members of said combination and trust, the amount of purchases made by the buyer in the previous year, from all the members of said combination or trust, being the entire amount of purchases made by such buyer during the preceding year, was ascertained, and an amount at least double thereof, being an amount supposed to be, and which was in fact more than, by any possibility, could be needed by such buyer, was inserted in said blank as the amount to be purchased by such buyer from the company.

By said agreement, the prices to be paid by the jobber were fixed according to the class in which he was arbitrarily placed at prices enumerated in schedules B, attached to said "Exhibit 1," and the prices at which, alone, said jobber could sell, were fixed as shown by schedule C, attached to said "Exhibit 1."

* * * *

Schedule A, attached to said "Exhibit 2," is the same, so far as relates to jobbers of the class with whom the agreement is made, as the corresponding provisions of schedule B, attached to said "Exhibit 1" and schedule B, attached to "Exhibit 2" is the same as schedule C, attached to "Exhibit 1." The members of said combination and trust, and said plaintiff, further to carry out said agreement, compelled all other wholesale and quantity buyers to sign agreements in the form attached to this answer, marked "Exhibit 3" [which is in the margin{3}], and filed herewith; the same being a printed form with blanks for signatures, and having attached thereto the prices shown in schedule C, attached to "Exhibit 1," which are the list prices referred to in said agreement.

All said agreements, "Exhibits 1, 2, and 3" were drawn for the purpose, and with the intent, of disguising the real nature of the transaction and the real purpose, as herein set forth.

In further carrying out said combination, and with said purpose and intent, agreements were made by plaintiff and the members of said combination and trust, and persons, natural and artificial, in the Dominion of Canada, by which each agreed not to compete with the other, nor cut prices, the Americans in Canada, the Canadians in the United States.

On, before, and after said first day of July, A.D. 1898, this defendant had a large and profitable business of longstanding, possessing a valuable goodwill, and in which they had a large capital invested, being what is generally called the business of a jobber or wholesaler of wallpaper in the State of Ohio and throughout the states and territories of the United States.

The defendant and all other persons engaged in the wholesale wallpaper business at the beginning of each season, which commenced in September and closed the first of July, following, according to the custom of the trade, bought from the various persons engaged in the manufacture and sale of wallpaper in the United States, being the persons, members of said combination and monopoly, their stock of wallpaper to be sold by them during the ensuing year, such stock to be manufactured for them from samples submitted at the beginning of said season, in wholesale lots, and those for defendant to be shipped to Cincinnati, Ohio, and there resold by defendant, from time to time, to retail dealers throughout the states of Ohio, Kentucky, Indiana, Illinois, and other states and territories of the United States.

At said time, said members of said combination and trust having, by the agreements and acts aforesaid, obtained the control of the wallpaper trade throughout the United States, at once greatly advanced the price of said wallpaper, and threatened defendant that, unless it signed said agreement, "Exhibit 2," no wallpaper would be sold to it; that said combination would make it impossible for it to buy wallpaper, or to continue its business, and would drive it out of its said business, and compel it to sacrifice the goodwill owned by it as aforesaid, and the capital invested by it in said business.

Said combination or trust then, and from that time thereafter, until the first day of July, A.D.1900, had the power, by means of said combination and said agreements, and the will, to carry out its said threats, and deprive these defendants or any person, firm, or corporation engaged in the business of selling wallpaper in the United States, of the power to obtain wallpaper for its or their trade, and the will and the power to drive out of business any person, firm, or corporation engaged in the business of selling wallpaper; deprive them of their goodwill, and compel them to sacrifice the capital invested in the business.

In like Manner, by the same means, all other jobbers and wholesalers of wallpaper in the United States, and all persons engaged in commerce in the wallpaper trade between the several states of the Union and foreign countries, were compelled to, and did, sign the agreements attached to this answer, as "Exhibits 2 and 3."

The immediate, intended, and direct effect of the said combination and agreements was the stifling of competition between said manufacturers and vendors of wallpaper, and between the jobbers and wholesalers thereof, and to unduly enhance the price of wallpaper, making it one-half more than the price which it would be had the same been left to free and unrestrained competition; to compel said jobbers and wholesalers to pay such unduly enhanced and unreasonable price to plaintiff and to members of said combination, and to exact from others an unduly enhanced price.

After the making of said agreements, as before, the members of such combination solicited and received orders from this defendant, and all other wholesalers; filled their orders; charged the prices fixed in said schedules attached to said "Exhibit 1," and directed that payment for such merchandise should be made by the jobbers to said plaintiff combination for said several members of said combination and trust, to be divided in the manner aforesaid. Said combination contrived, intended, and did prevent free and unrestrained competition between the producers and between the purchasers of wallpaper, and between the jobbers and wholesalers of wallpaper throughout the United States.

Defendant avers that said plaintiff and the members of said combination as aforesaid, being more than two persons, firms, corporations, partnerships, and associations, combined capital and skill for each and all of the following purposes, to-wit: to create restrictions in trade and commerce; to carry out restrictions in trade and commerce; to limit the product of wallpaper; to reduce the production of wallpaper; to increase the price of wallpaper; to prevent competition in the manufacturing and making of wallpaper; to prevent competition in the sale of wallpaper; to prevent competition in the purchase of wallpaper; to fix a standard or figure whereby its price to the public or consumer should be controlled and established as to an article or commodity of merchandise, to-wit: wallpaper intended for sale, use, and consumption in the states of Ohio, Indiana, Kentucky, and Illinois; to make and enter into contracts, obligations, and agreements by which they bound themselves not to sell or dispose of wallpaper below a common standard figure or fixed value; to carry out contracts, obligations, and agreements by which they bound themselves not to sell or dispose of wallpaper below a common standard figure or fixed value; to make and enter into contracts, obligations and agreements by which they agreed to keep the price of wallpaper at a fixed or graduated figure; to carry out contracts, obligations, and agreements by which they agreed to keep the price of wallpaper at a fixed or graduated figure; to make and enter into contracts, obligations, and agreements by which they established and settled the price of wallpaper between themselves and between themselves and others, so as to both directly and indirectly preclude a free and unrestricted competition among themselves, and among themselves and purchasers, and among purchasers in the sale of wallpaper; to carry out contracts, obligations, and agreements by which they established and settled the price of wallpaper between themselves and themselves and others, so as to both directly and indirectly preclude a free and unrestricted competition both between themselves and between themselves and purchasers, and between purchasers in the sale of wallpaper; to make and enter into contracts, obligations, and agreements by which they agreed to pool, combine, and both directly and indirectly unite the interests they had connected with the sale of wallpaper so that its price might be affected; to carry out contracts, obligations, and agreements by which they agreed to pool, combine, and both directly and indirectly unite the interests that they had connected with the sale of wallpaper so that its price might be affected.

Said contracts and agreements were each and all combinations and conspiracies in restraint of trade and commerce among the several states and with foreign nations, and had the intent and effect of restraining trade and commerce between the several states and with foreign nations, and were an attempt, by combinations and conspiracy, between the members of said combination and trust, to monopolize the trade and commerce in wallpaper among the several states and with foreign nations, and, by said contracts, and the acts done by members thereof, and by said plaintiff under and in pursuance thereof, said plaintiff and the said members of said combination or trust did monopolize and attempt to monopolize the trade and commerce in wallpaper among the several states and with foreign nations.

In further carrying out of said scheme and combination the members thereof delivered to this defendant, in the year from September, A.D. 1898, to September, A.D. 1899, wallpaper for which this defendant paid to said plaintiff, for and per direction of the members of said combination, the sum of one hundred and forty-four thousand, eight hundred and fifty-four dollars and fourteen cents ($144,854.14).

These defendants aver that the prices charged in said Exhibit attached to said amended petition [which are itemized accounts, showing each article and the price therefor alleged to have been sold and delivered to the defendant] are the prices fixed and determined in pursuance of and by the combination or trust agreement, as above set forth, and are unreasonable, unjust, and excessive, and at least one-half more than they would otherwise have been. In transacting all business aforesaid at all said times, said business was transacted under and in pursuance of said combination or trust agreement, and for the purposes, and each of them, above specified, and not otherwise.

The allegations in said plaintiff’s petition set forth as a suit on account are an attempt to enforce, carry out, and recover upon and by virtue of said unlawful combination, aforesaid, the prices fixed by such combination, and the prices therein sought to be recovered for said merchandise are unreasonable, excessive, and above the fair market price of such merchandise by more than the amount so sought to be recovered.

Each and all of the provisions of said contract and agreement between said members of said combination and each other: between said so-called vendors and said plaintiff; between said members of said combination and said plaintiff and the so-called jobbers; between the members of said combination and trust and said plaintiff and the so-called "road" or "quantity buyers" -- are each and all contrary to the provisions of the statutes of the State of New York, where said plaintiff was organized; contrary to the provisions of the laws of the State of Ohio, where the merchandise was delivered; contrary to the laws of the several states where each of the members of said combinations did business; contrary to the laws of the United States, and made criminal by the laws of each of said several states and by the laws of the United States, and each and all of said agreements aforesaid are contrary to public policy, and in violation of the rights of the defendant, and injurious to the interests of the consumer and of the public.