Purington v. Hinchiff

120 Ill. App. 523

Opinion

Mr. Justice Freeman

delivered the opinion of the court.

Appellants seek to reverse the judgment on the broad ground that it is unwarranted in law and by the evidence. It is first contended that the agreements in question between the Masons & Builders Association and the Bricklayers Union, and that between the Brick Manufacturers Association and the Masons & Builders Association, were jointly as well as singly lawful and such as the parties had a right to make. The argument is, that appellants by entering into separate agreements claimed to be lawful in themselves, could not be and were not guilty of a conspiracy to accomplish an unlawful purpose, as charged in the declaration; that the agreement between the masons and builders and the bricklayers was an essential element in the combination; that this agreement was itself perfectly lawful and cannot, therefore, be regarded as entering into an unlawful combination and conspiracy. This agreement provided that the members of the Bricklayers Union should be allowed to work for members of the Chicago Masons & Builders Association, and, with a few specified exceptions, for no others; and members of the Chicago Masons & Builders Association should be allowed to employ members of the Bricklayers Union and no others. It is unnecessary, however, to consider the character of that particular agreement standing alone. A single act or agreement may be lawful and even unobjectionable in itself and yet form a part of a series of acts and agreements which are unlawful, designed and made with an intention to interfere with public, personal and property rights in unlawful ways. The material question relates to the character and operation of the combined agreements, that between the Brick Manufacturers and Masons & Builders Association in connection with that between the latter and the Bricklayers Union.

It is contended in behalf of appellee that the motive which led to the making of these agreements and the purpose for which they were made, is correctly stated in the preamble to a resolution adopted by the Masons & Builders Association pursuant to which the combination was formed. That preamble recites that, whereas the brick manufacturers “ now have an organization which takes in all of the brick manufacturers of Cook County and vicinity,” which is believed to be “ established upon a sound and practical basis,” and in the belief that “ the system will control the price of brick in the future,” and that an agreement will benefit-the masons and builders and strengthen the Brick Manufacturers Association as well, it is therefore resolved, etc. Under that resolution a committee was appointed and steps were taken to perfect such an agreement. Appellee charges that the agreements were made and the “ system ” established in order to drive him out of business in Cook County, substantially his only market; and in his declaration he sets forth alleged facts upon which he relifes as tending to show that the agreements were made and the machinery which they created was used for that purpose and actualU produced that result. There is evidence tending to sustain these averments. The arrangement was well calculated to and did “ control the price of brick.” Doubtless the operation of the agreements affected the public, and other competitors, if such there were, as well as appellee. There is evidence which tends to show that appellee was perhaps the principal active competitor-of appellants in the manufacture of brick and its sale in Cook County. The tendency of the agreement, however, was without doubt to prevent the sale of brick in Cook County by any one in competition with appellants. When substantially all the building contractors in Cook County agree to buy brick exclusively from certain specified manufacturers and the latter agree to sell brick to such contractors and to no one else, and when substantially all the bricklayers in the county agree to handle and lay only the brick of said manufacturers obtained through said contractors and to work for the latter and no one else, there cannot be much question as to the purpose of such agreements nor as to the result. The evidence, practically undisputed, tends to show that as soon as the combination was fully effected and the agreements were in operation, the price of brick immediately arose in the Chicago market. The purpose of the combination may be properly judged from the inevitable results which speedily followed and must have been anticipated. The combination gave appellants arbitrary control of the price of brick, secured to them a monopoly of the Chicago market, enabled them to drive out competition and practically destroy the business of persons not members nor permitted to become members of the Brick Manufacturers Association.

Appellants, nevertheless, contend that the agreements, which were as the trial court found designed to accomplish and did accomplish these results, were not unlawful nor actionable. In support of this contention it is argued “ it. is the fundamental right of every man to conduct his own business in his own way subject only to the condition that lie does not interfere with the legal rights of others,” and that “ what one man may lawfully do singly, many after consideration may agree to do jointly.” It is doubtless true, as said in Carew v. Rutherford, 106 Mass. 1-14, cited by appellants, that “ it is no crime for any number of persons without an unlawful object in view, to associate themselves together and agree that they will not work for or deal with certain classes of men or work under a certain price or without certain conditions.” Yet it may become a criminal act to do things of that character in combination and in pursuance of an unlawful purpose. R. S., chap. 38, sec. 269a, et seq. In People v. Sheldon, 139 N. Y. 251-264, in passing upon the legality of an organization of coal dealers intended to prevent competition, the court said: “ The gravamen of the offense of conspiracy is the combination. Agreements to prevent competition in trade are in contemplation of law injurious to trade because they are liable to be injuriously used. * * * We are of opinion that the principle upon which the case was submitted to the jury is sanctioned by the decisions in this State, and that the jury were properly instructed that if the purpose of the agreement was to prevent competition in the price .of coal between retail dealers, it was illegal and justified the conviction of the defendants.” In C., W. & V. Coal Co. v. The People, 214 Ill. 421-448, it is said, that to enter into a combination to regulate and fix the price at which coal should be sold in Northern Illinois is unlawful “at common law'and under the statutes of this State, there can be no doubt.” Citing, Craft v. McConoughy, 79 Ill. 346; More v. Bennett, 140 Ill. 69; Foss v. Cummings, 149 Ill. 353; Harding v. American Glucose Co., 182 Ill. 551. In Smith v. The People, 25 Ill. 9-14, it is said, “ that conspiracies to accomplish purposes which are not by law punishable as crimes, but which are violative of the rights of individuals and for which the civil law will afford a remedy to the injured party and will at the same time and by the. same process punish the offender for the wrong and outrage done to society by giving exemplary damages beyond the damages actually proved, have in numerous instances been sustained as common law offenses.” In Jackson v. Stanfield, 23 L. R. A. 588-595 (Indiana), it is said that “ a conspiracy formed and intended, directly or indirectly, to prevent the carrying on of any lawful business or to injure the business of any one by wrongfully preventing those who would be customers from buying from the representatives of such business by threats or intimidation, is in restraint of trade and unlawful.” In Bailey v. Master Plumbers, 103 Tenn. 99, it was said that the natural and intended result of agreements of the character of those in controversy “ is an illegal restraint on trade, a combination and trust in limited form tending to stifle competition and to create a monopoly in a particular line and commodity.” Appellants had a right doubtless to refuse to sell their brick to any or every one, a right to sell to some and refuse to sell to others, to fix a price and refuse to sell at other prices. But it is another thing to engage in a combination in restraint of trade and with the purpose of driving competitors out of business. The method adopted by appellants to drive out competition was not a mere refusal to bestow patronage on those who should sell goods to a competitor not members of a certain association, as in Macauley Bros. v. Tierney, 19 R. I. 255; nor to prevent the sale of material by wholesale dealers directly to consumers instead of to retail dealers, as in Bohn Mfg. Co. v. Hollis, 54 Minn. 223, and American Live Stock Com. Co. v. Live Stock Ex., 143 Ill. 210; nor to force out of business or refuse to do business with one who does not pay his bills, as in Ullery v. Chicago Live Stock Exchange, 54 Ill. App. 233, and Brewster v. Miller’s Sons Co., 101 Ky. 368, which are cases cited by appellants’ attorneys. The distinctions are clear. While the agreements in controversy did not in set terms attempt to fix the prices of brick or control the market, they did put it in the power of appellants to do both of these things. They did not, it is true, in terms absolutely bind the brick manufacturers to sell only to the members of the Masons & Builders Association, yet such was their practical effect. They fixed a trade discount of one dollar a thousand from the contract price to be given to such members exclusively, and fined the brick makers the same amount in case any one of them should sell to outsiders. The effect was to give the members of the Masons & Builders Association a practical monopoly, in exchange for the agreement on their part to buy brick only of members of the Manufacturers Association at such prices as the latter might establish. It was monopoly for monopoly.

The form is not material in cases of this kind. It is the unlawful purpose of the combination, the methods it pursues and the results of its operation that determine its character in the eye of the law. There is evidence apparently undisputed in the case at bar of unlawful interference with appellee’s business. This was consistent with and tended to show the unlawful purpose as evidenced by the acts of the parties for which the declaration avers the combination was organized. Mor do we deem it important if, as appellants’ counsel contend, the evidence fails to disclose any directly active connection by any of appellants themselves with such unlawful acts. It is enough if they were done by or through other defendants who were parties to the combination, or by agents in pursuance of the objects which the combination was endeavoring to and did attain, namely, a total or general restraint of trade. Doremus v. Hennessy, 176 Ill. 608-614. See, also, Harding v. Glucose Co., 182 Ill. 551-639. Lawful competition in trade may have the effect of driving men out of business and creating a practical monopoly in those who survive the struggle. Such competition is legitimate, however, and not actionable, although its effect in particular cases may be similar to that brought about by unlawful means employed to destroy competition. That this may happen is no excuse or justification for the use of unlawful methods, by combination or otherwise, with intent to do a wrongful injury by inducing, as in the case before us, former customers not to deal with appellee nor to buy or use brick of his manufacture. In Doremus v. Hennessey, supra, it is said : “ Every man has a right under the law as between himself and others to full freedom in disposing of his own labor or capital according to his own will, and any one who invades that right without lawful cause or justification commits a legal wrong, and if followed by an injury caused in consequence thereof, the one whose right is thus invaded has a legal ground of action for such wrong.” The agreements in controversy were clearly unlawful and actionable.

There is evidence tending to show that appellee suffered loss and injury from the creation and operation of the combination effected by the agreements under consideration. He was, according to the evidence, the owner of a brick-making plant with a capacity of about 15,000,000 bricks a year, which was by the defendants’ action eliminated from the market. It is said by appellants’ attorneys that appellee was not, strictly speaking, a brick manufacturer himself. This may be true in one sense in that he appears to have operated his plant through others in part at least, but the fact remains that he dealt in and handled brick; and any combination which destroyed the market for brick manufactured at his plant directly affected his property rights.

It is claimed by appellants that any loss of profits suffered by appellee after the combination became operative, was caused by inherent defects in appellee’s brick and not by the action complained of. We do not think the evidence sustains such contention, and so far as it is conflicting the jury have determined such conflict in favor of appellee.

It is urged that the damages are excessive. It is not disputed that after the agreements in controversy became operative in the years 1898 and 1899, the selling price of brick was nearly double what it was the year before. Without reference to the causes of this rise in prices, the fact is apparent that any combination by which appellee was driven out of the market at that time was damaging. There is evidence which tends to show that he suffered damages larger than the amount awarded, but it is not conclusive and not entirely convincing. Whether any part of the verdict, and if so, how much was for punitive damages, we have no means of knowing. We are of opinion, however, that the judgment is for a larger sum than the circumstances justify and that it may with propriety be reduced.

Careful consideration discloses no other material error in the record. If, therefore, appellee shall within ten days remit §7,000 from the amount of the judgment, it will be affirmed for the remainder. Otherwise the judgment will be reversed and the cause remanded.

Affirmed upon remittitur.

Remittitur filed and judgment affirmed May 9, 1905.