Pulp Wood Co. v. Green Bay Paper & Fiber Co.

147 N.W. 1058, 157 Wis. 604, 1914 Wisc. LEXIS 257

• Court: Wisconsin Supreme Court
• Decided: June 17, 1914
• Status: Published

Opinion

Baenbs, J.

The defendant contends that the contracts sued on are void under the federal Anti-Trust Act, 26 U. S. Stats, at Large, 209, ch. 647 (3 U. S. Comp. Stats. 1901, p. 3200), which is as follows:

“Sec. 1. Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations, is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall, be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court

“Sec. 2. Every person who shall monopolize, or -attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several states, or with foreign nations, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.”

Further, that such contracts were made in violation of secs. 1791/ and 1747e, Stats, of Wis., which statutes read as follows:

“Sec. 1791/. Any corporation organized under the laws of this state which shall enter into any combination, conspiracy, trust, pool, agreement or contract intended to restrain or prevent competition in the supply or price of any article or commodity in general use in this state, or constituting a subject of trade or commerce therein, or which shall in any manner control the price of any such article or commodity, fix the price thereof, limit or fix the amount or quantity thereof to be manufactured, mined, produced or sold in this state, or fix any standard or figure by which its price to the public shall be in any manner controlled or established, shall, upon proof thereof, in any court of competent jurisdiction, have its charter or authority to do business in this state canceled and annulled. Every corporation shall upon filing its annual report with the secretary of state, make and attach thereto the affidavit of its president, secretary or general managing officer, fully stating the facts in regard to the matters specified in this section.”

“Sec. I747e. Every contract or combination in the nature of a trust or conspiracy in restraint of trade or commerce is hereby declared illegal. Every person who shall combine or conspire with any other person to monopolize or attempt to monopolize any part of the trade or commerce in this state shall forfeit for each such offense not less than fifty dollars nor more than three thousand dollars. Any such person shall also be liable to any person transacting or doing business in tbis state for all damages be may sustain by reason of tbe doing of anything forbidden by tbis section.”

Tbe circuit court beld tbat sec. 7 of tbe contracts by which tbe contracting consumers agreed not to purchase any pulp wood from any person, firm, or corporation except tbe plaintiff, unlawfully restrained trade, in tbat it took twelve consumers of wood out of tbe market and operated to tbe disadvantage of, those who bad pulp wood to sell by reducing tbe number of competing buyers.

Tbe principal contention made by respondent’s counsel in their brief and on tbe oral argument is tbat tbe contracts evidence a plan or scheme on tbe part of tbe contracting parties to control and restrict tbe output of pulp and paper, to tbe end tbat tbe market might be manipulated and prices raised, and tbat such purpose is made manifest by tbe fact tbat twelve or thirteen large consumers of pulp wood have bartered away their rights from year to year for a series of years to supply their legitimate wants in tbe way of raw material. It is urged tbat the plaintiff is a spurious creature, organized for ulterior purposes and to evade tbe law, and tbat tbe real power behind it is a group of manufacturers intent on unduly stimulating competition or suppressing it altogether, as may best suit their lawless wishes, and tbat tbe inevitable tendency of tbe contracts is towards monopoly and unlawful restraint of trade.

Tbe complaint shows that tbe wood supply furnished to tbe plaintiff came from tbe states of .Wisconsin, Minnesota and Michigan, and tbe Dominion of Canada. Tbe contract we think involved interstate commerce, and if so the federal statute is applicable and tbe case will be treated on tbat basis. U. S. v. Reading Co. 226 U. S. 324, 33 Sup. Ct. 90; Swift & Co. v. U. S. 196 U. S. 375, 25 Sup. Ct. 276; U. S. v. Patten, 226 U. S. 525, 33 Sup. Ct. 141; Continental W. P. Co. v. Louis Voight & Sons Co. 212 U. S. 227, 29 Sup. Ct. 280. So far as tbis particular case goes, we observe very little difference whether the state or federal statutes or both apply.

The case will first be considered on the aspect principally relied on by respondent’s counsel and in reference to the so-called Sherman Anti-Trust Law.

The questionable features of the contracts arise out of the fact that they take in twelve or thirteen large consumers of wood and that these consumers have appointed an agent who has the exclusive authority to buy all their pulp wood.

We do not construe the contracts as fixing a price which the plaintiff was to pay for wood. The prices specified in the sixth paragraph are merely an estimate, made in advance, of what the commodity would probably cost, and payment was to be made on the basis of this estimate as the wood was delivered. When the total expense for the year was ascertained, the purchasers were to settle on the basis of the actual cost, which included seven per cent, interest on the capital employed by the plaintiff. If the estimated price was greater than the actual cost the excess was to be refunded by the plaintiff. If the actual exceeded the estimated cost the purchasers were required to make up the deficiency and pay in proportion to the amount of wood purchased. This we deem to be the clear intent and meaning of paragraph 10 of the contract and of the provisions of the same taken as a whole. No other contract could be made if the actual purpose was to secure a supply of wood. The contracts covered future deliveries for a period of a year. Many conditions might arise which would materially affect the supply of wood. A good winter for hauling would tend toward a large supply and a lower price, while an open winter would greatly curtail output and tend to increase the price. The varying conditions of the wood market are reflected in the estimated prices found in the contracts. The estimated price of spruce was $2 per cord higher for 1907 than for 1905, and of hemlock $1.50 per cord higher. The plaintiff would have to pay the going prices whatever they were or go without wood. Its net earnings were restricted to seven per cent, on the capital it had invested. We do not understand that there is any serious dispute between the parties as to the intent and meaning of the contract in this regard. Neither do we think there is any doubt that the manufacturers who were parties to contracts like that set forth in the statement of facts attempted to make the plaintiff their sole agent and to give it the exclusive right to purchase their supply of wood. If it appears from the contracts, read in connection with the allegations of the complaint, that the parties-had no lawful right to make such agreements, or that the agreements contravene public law, then the contracts are void and the action will not lie because recovery cannot be had on a void contract. Menominee River B. Co. v. Augustus Spies L. & C. Co. 147 Wis. 559, 132 N. W. 1118.

The complaint being challenged by demurrer, every reasonable intendment must be made in favor of the pleading. Downer v. Tubbs, 152 Wis. 177, 179, 139 N. W. 820; Jones v. Monson, 137 Wis. 478, 119 N. W. 179.

“In law every intendment that harmonizes with honesty and fair dealing must be presumed in the light of the alleged facts.” Forest Co. v. Shaw, 150 Wis. 294, 304, 136 N. W. 642.

Where a contract is fairly open to two constructions, by one of which it would be lawful and the other unlawful, the former must be adopted. Hobbs v. McLean, 117 U. S. 567, 576, 6 Sup. Ct. 870; U. S. v. Cent. Pac. R. Co. 118 U. S. 235, 6 Sup. Ct. 1038, cited in Watters v. McGuigan, 72 Wis. 155, 157, 39 N. W. 382; Hicks P. Co. v. Wis. Cent. R. Co. 138 Wis. 584, 591, 120 N. W. 512.

“When the terms of a contract are indefinite, uncertain, and susceptible of two constructions, and by giving them one construction one of the parties would be subjected to a forfeiture, and by giving them the other no such forfeiture would be in-cnrred and no injustice would be done to the other party, the contract should be so construed as not to create the forfeiture.” Jacobs v. Spalding, 71 Wis. 177, 190, 36 N. W. 608; Weidner v. Standard L. & A. Ins. Co. 130 Wis. 10, 19, 110 N. W. 246; Hicks P. Co. v. Wis. Cent. R. Co. 138 Wis. 584, 590, 591, 120 N. W. 512; Appleton Iron Co. v. British Am. Assur. Co. 46 Wis. 23, 1 N. W. 9, 50 N. W. 1100; Wier v. Simmons, 55 Wis. 637, 13 N. W. 873.

A violation of the federal Anti-Trust Act is made a misdemeanor which is punishable by a fine not exceeding $5,000, or by imprisonment not exceeding one year, or by both, in the discretion of the court.

“It is a most fundamental canon of criminal legislation that a law which takes away a man’s property or liberty as a penalty for an offense must so clearly define the acts upon which the penalty is denounced that no ordinary person can fail to understand his duty and the departure therefrom which the law attempts to make criminal.” Brown v. State, 137 Wis. 543, 119 N. W. 338.

It is substantially ruled in some of the federal courts that in close and doubtful cases arising under the Anti-Trust Law and involving intricate questions, the merits will not be passed upon on demurrer nor until all the essential facts are before the court, where such facts may materially aid in determining whether or not the law has been violated. U. S. v. Winslow, 195 Fed. 578, applying the equity rule as stated in Kansas v. Colorado, 185 U. S. 125, 144, 145, 22 Sup. Ct. 552. This rule of practice is not binding on this court, but does not differ essentially from our uniform holdings in later years as to when a complaint will be held bad on general demurrer.

There is not so much difficulty at the present time in determining what the law is as there is in making the proper application of established rules to the facts in each particular case. There has been a world of decisions on our antitrust laws, common and statute, in the state and federal courts. To attempt to review tbem all would be a work of supererogation. To harmonize tbem would be an impossibility. On tbe federal Anti-Trust Statute, however, our court of last resort has recently spoken in a number of well considered decisions in which the act of Congress has been carefully and learnedly analyzed and its scope defined. Standard Oil Co. v. U. S. 221 U. S. 1, 31 Sup. Ct. 502; U. S. v. American T. Co. 221 U. S. 106, 31 Sup. Ct. 632; U. S. v. Patten, 226 U. S. 525, 33 Sup. Ct. 141; Standard S. M. Co. v. U. S. 226 U. S. 20, 33 Sup. Ct. 9; U. S. v. Reading Co. 226 U. S. 324, 33 Sup. Ct. 90; Swift & Co. v. U. S. 196 U. S. 375, 25 Sup. Ct. 276; U. S. v. Terminal R. R. Asso. 224 U. S. 383, 32 Sup. Ct. 507; Northern S. Co. v. U. S. 193 U. S. 197, 24 Sup. Ct. 436; Montague & Co. v. Lowry, 193 U. S. 38, 24 Sup. Ct. 307; Continental W. P. Co. v. Louis Voight & Sons Co. 212 U. S. 227, 29 Sup. Ct. 280. Many other cases might be cited, but a reference to them will be found in the foregoing decisions.

Whatever understanding or misunderstanding may have arisen out of the decisions in U. S. v. Trans-Missouri F. Asso. 166 U. S. 290, 17 Sup. Ct. 540, and U. S. v. Joint Traffic Asso. 171 U. S. 505, 19 Sup. Ct. 25, it is now definitely decided that the words “restraint of trade” at common law and in the law of this country at the time of the adoption of the Anti-Trust Act embraced only acts, contracts, agreements, or combinations which operated to the prejudice of the'public interests by unduly restricting competition or by unduly obstructing due course of trade, and that Congress intended that those words used in the act should have a like significance. Standard Oil Co. v. U. S., supra; U. S. v. American T. Co., supra. These decisions have been freely criticised and often denounced, but they are the law of the land. It is more than three years since they were announced, during which time Congress has been in almost continuous session. So far as we know there has not even been any attempt to pass a law de-daring that every contract, combination, or conspiracy in restraint of trade is unlawful regardless of the extent of the restraint. We are inclined to agree with respondent’s counsel that in the discussion of these cases “the light of reason” has “often been absent.”

The real question before us for solution is: Do the contracts referred to, read in connection with the allegations of the complaint, show that they operated to the prejudice of the public interest by unduly restricting competition or by unduly obstructing the due course of trade?

The answer depends on the extent to which competition has been restricted or trade has been obstructed. This must be determined from the existing facts. When the facts are ascertained the question of whether the restraint is reasonable or otherwise is one of law. Richards v. American D. & S. Co. 87 Wis. 503, 513, 58 N. W. 787. Sometimes the essential facts may be so clearly shown by the contract involved, if one is involved, that further evidence is unnecessary to show that the restraint is unlawful. There is another class of cases where the contract in itself may present an innocent appearance, but when considered in the light of other facts and circumstances, including the purpose for which it was made, the objects sought to be accomplished and the results actually brought about, the contract may be positively vicious. In such cases the contract constitutes a link in the chain of evidence. There is a third class of cases where the contract involved shows some restriction of competition or some obstruction of trade, but does not show whether such restriction or obstruction is undue and unreasonable or otherwise. In such cases it is necessary to resort to evidence dehors the contract to ascertain whether it is void or valid.

The contracts involved in this case would seem to fall within the latter class. If they are reasonably susceptible of an interpretation which would render them lawful, it is the duty of the court to place that interpretation upon them. It is argued by counsel for respondent tbat these contracts place a limitation on the production of pulp and likewise on the output of paper; that there is a federation of interests between the contracting parties; that estimates of the amount of wood required are made so as to effectuate the ulterior purposes of the parties, or it may be the group itself makes the estimates; that the power is centered in this group to dominate the pulp and paper market; that plaintiff is merely a clearing-house for carrying out the unlawful objects of the combine; that the contracts referred to give the plaintiff power to crush competitors and force combinations; that they inevitably tend toward monopoly; that an unlawful restraint is placed upon the contracting consumers, in that they are not permitted to buy any part of their supply of wood under any circumstances. Some other considerations of like tenor and effect are suggested, hut the foregoing is a substantially full epitome of the contentions of counsel on the point principally argued. These contracts are roundly and at times extravagantly denounced by counsel.

Defendant asks us to assume altogether too much in passing upon these contracts and the averments of the complaint. This is not an action brought by or in behalf of the public to dissolve an unlawful combination. It is a case where ope particeps criminis is trying to avoid responsibility to his co-partners in crime, if any crime was in fact committed. In berating the plaintiff the defendant is also belaboring itself. It is true, it had no stock in the plaintiff corporation, but if the corporation was organized for an unlawful purpose, the defendant aided, abetted, and assisted it in the execution of such unlawful purpose. The contracts before us covered a period of six or seven years. If the production of pulp wood and of paper was restricted for the purpose of inflating the price of paper or depressing the price of wood, the defendant is as well aware of that fact as is any one else, and whether it is or not the matter is easily susceptible of proof. The defendant certainly knows bow long its mill was sbnt down for want of pnlp wood if it was sbnt down at all. It can be readily ascertained bow long tbe other mills whose owners made like contracts were sbnt down for this or any other cause during tbe period. If no attempt was in fact made during this time to restrict output so as to squeeze up prices abnormally or to do other unlawful acts, that would be pretty convincing evidence that tbe plaintiff corporation was not organized to juggle tbe paper market. If tbe plaintiff has crushed or attempted to crush competitors, or has forced or attempted to force unlawful combinations to control tbe wood or paper market, these things should be susceptible of proof, but it is not apparent from tbe contracts or from tbe complaint that it has done either.

Eor aught we know it may be shown on the trial that the contracting manufacturers made their estimates large enough to cover their needs without interference from any one; that the estimated amounts were substantially furnished, or that a good-faith attempt was made to supply them; that thd exercise of that reasonable diligence which plaintiff agreed to exercise was sufficient to insure a full supply of wood, or at least as much as the mill owners could secure if they were themselves engaged in the work of buying; that the mills affected had all the wood they needed at all times, and that there was no thought of restricting the output of paper or pulp and that there was no restriction in fact and no influence exerted on the paper market whatever by this alleged unlawful combine. It might even be made to appear that the only harm which the parties could do, if they attempted to reduce production, would be to themselves. It might also be made to appear that the plaintiff was organized to further legitimate economies in the cost of the article which the mill men had to offer the consuming public. Manifestly the question under consideration cannot be intelligently decided until the actual facts are before the court, because the complaint and contracts do not affirmatively establish the fact that there has been any undue restraint of competition or any undue obstruction of the course of trade. It is possible to imagine many things that might have happened, but the vital question here, after all, is, What has been done ? The court should not be asked io draw on its imagination for its facts. The plaintiff has been operating long enough so that its practices should be well known. We do not think the contracts on their face inevitably tend to unduly restrain trade or competition.

There is nothing in itself unlawful in two or more persons appointing a common agent to purchase a commodity which they require and in giving such agent the exclusive right to do the buying. Nat. D. Co. v. Cream City I. Co. 80 Wis. 352, 56 N. W. 864; Kellogg v. Larkin, 3 Pin. 123; Wheeler-Stenzel Co. v. American W. G. Co. 202 Mass. 471, 476, 89 N. E. 28; Burley T. Soc. v. Gillaspy (Ind.) 100 N. E. 89; Reeves v. Decorah F. C. Soc. (Iowa) 140 N. W. 844; First Nat. Bank v. Missouri G. Co. 169 Mo. App. 374, 152 S. W. 378; Central S. R. Co. v. Cushman, 143 Mass. 353, 9 N. E. 629; Nexo York T. R. Co. v. Brown, 61 N. J. Law, 536, 43 Atl. 100; Arkansas B. Co. v. Dunn, 173 Fed. 899; Anderson v. U. S. 171 U. S. 604, 613, 614, 19 Sup. Ct. 50; Connolly v. Union SA P. Co. 184 U. S. 540, 22 Sup. Ct. 431, read in connection with additional facts stated in dissenting opinion of Justice Holmes in Continental W. P. Co. v. Louis Voight & Sons Co. 212 U. S. 227, 29 Sup. Ct. 280. We do not wish to be understood as approving all that is said in those cases.

Such an arrangement becomes unlawful when it injuriously affects the public, or, in other words, when it unduly restricts competition or restrains trade. Ordinarily the invalidity of such an agreement must be made to appear from facts outside of the contract, because, the writing seldom shows the facts necessary to determine whether the restraint is reasonable and permissible or undue and criminal. The circuit court thought the contract was unlawful because it took a dozen consumers of wood out of the market and thus materially affected those who had pulp wood for sale, by reducing the number of buyers. The idea of the court was that the contracts had a tendency to reduce the price of wood. This is a contention not very often made in this class of cases, because, if .true, it would also have a tendency to reduce the price at which the manufactured article might be sold to the consuming public. However, we think the pulp-wood producer is entitled to protection against combinations which unreasonably depress the price of his commodity, even though the general public might to some extent benefit by the depression.

The complaint shows that the mills for which plaintiff acted as agent used about twelve per cent, of the entire output of wood in the territory in which it made its purchases. It cannot be held as a conclusion of law on these facts that there was an undue restraint of competition. The producers of wood have made no complaint on this score. There may have been an abundance of buyers to insure fair and free competition in bidding and a fair and adequate price for the wood. If so, it could not be said that competition was unduly restricted. The question is one calling for evidence to show how and to what extent it was reasonably probable that those who had wood for sale were affected.

The first cause of action is brought to recover a loss sustained on the Perry contract. The effect of that contract on this cause of action has not been much discussed by counsel. There are three causes of action stated in the complaint, and the demurrer is interposed to the whole complaint, so that if any good cause of action is stated the order appealed from is erroneous. .We do not deem it necessary to decide on the validity of that contract, or to what extent, if any, it would affect the plaintiff’s right of recovery on its first cause of action should the contract be held void.

The mere fact that the plaintiff corporation was an unlawful combination would not relieve the defendant from paying for the goods purchased from it, provided the contract of purchase was not in itself unlawful. Nat. D. Co. v. Cream City I. Co. 86 Wis. 352, 56 N. W. 864; Connolly v. Union S. P. Co. 184 U. S. 540, 22 Sup. Ct. 431; International H. Co. v. Eaton Circuit Judge, 163 Mich. 55, 127 N. W. 695; Chicago W. P. Mills v. Qenerdl P. Co. 147 Fed. 491. This being the law, it is not apparent how the defendant can derive any benefit from sec. 1791j, Stats, of Wis.

Sec. I747e, Stats, of Wis., is a copy of the federal statute, except that it applies to attempts to monopolize trade and commerce within the state and prescribes a lesser penalty for its violation than is provided for in the act of Congress. It originally appeared as ch. 219, Laws of 1893. Since then it has received substantially the same construction, sub silen-tio at least, that was placed on the federal law in the Standard Oil and Tobacco Gases, as will be seen from an examination of the following cases decided since the law was enacted: Cottington v. Swan, 128 Wis. 321, 107 N. W. 336; My Laundry Co. v. Schmeling, 129 Wis. 597, 109 N. W. 540; Kradwell v. Thiesen, 131 Wis. 97, 111 N. W. 233; Burton v. Douglass, 141 Wis. 110, 123 N. W. 631; Eureka L. Co. v. Long, 146 Wis. 205, 131 N. W. 412; Ruhland v. King, 154 Wis. 545, 143 N. W. 681; Nat. D. Co. v. Cream City I. Co., supra; Richards v. American D. & S. Co. 87 Wis. 503, 58 N. W. 787; Tecktonius v. Scott, 110 Wis. 441, 86 N. W. 672. If the above statute has any application to the facts in this case, it should receive the same interpretation that was placed on the federal act, from which it was taken, by the supreme court of the United States.

By the Court. — Order reversed, gnd cause remanded for further proceedings.

EjsRwiN, J., "took no part.