SHACKELFORD MILLER, Jr., Circuit Judge.
The appellant, Tampa Electric Company, brought this declaratory judgment action in the District Court, pursuant to Sec. 2201, Title 28 U.S.C., for the purpose of having its contract of May 23, 1955, providing for the purchase of coal by it from the appellees, declared valid and enforceable. The appellees contended that the contract was illegal and unenforceable by or against either of the contracting parties, in that it was contrary to Sections 1 and 2 of the Sherman Act and Section 3 of the Clayton Act, Sections 1, 2 and 14, Title 15 U.S.C.A. The facts not being in dispute, both the appellant and the appellees moved for summary judgment. The District Judge held that the contract was in violation of Section 3 of the Clayton Act, was therefore illegal and unenforceable, and that the appellant was entitled to no relief against any of the appellees on account of their refusal to perform under the contract. Tampa Electric Co. v. Nashville Coal Co., D.C. M.D.Tenn., 168 F.Supp. 456. This appeal followed.
Appellant is an electric public utility serving the city of Tampa, Florida, and neighboring communities. The appellees are engaged in mining and selling coal.
In 1954 appellant operated two integrated generating plants, both located on Tampa Bay, Florida, at which there were eleven generating units, all. of which burned oil. In that year, in order to meet the increasing demand for electric energy in its service area, appellant decided to expand its facilities and build a new and additional integrated generating station on Tampa Bay, to be known as the Francis J. Gannon Station, at which it was planned to ultimately install six generating units.
[769]*769The May 23,1955, contract was for the purchase of coal for use at the Gannon Station. It was entered into between the appellant as the buyer and the Potter Towing Company, a Tennessee partnership of David K. Wilson and Justin Potter, as the seller. Subsequent to the making of the contract, the interest of Wilson and Potter was transferred to the appellee Nashville Coal Co. and thereafter to the appellee Nashville Coal, Inc., which is a wholly owned subsidiary of the appellee West Kentucky Coal Company. The West Kentucky Coal Company guaranteed the appellant in writing against any loss or damage arising out of nonperformance of the contract.
The contract, after stating that the seller proposed to make available for sale to the buyer large quantities of coal from the West Kentucky field near Uniontown, Kentucky, and that the buyer desired to purchase certain coal for its use in its plant to be constructed near Tampa, upon the terms and conditions thereinafter set out, provided as follows:
“Seller agrees to provide and deliver on the dock or docks of the Buyer at Plant Gannon coal to supply the total requirements of fuel of the Buyer for the operation of its first two units to be installed at the Gannon Station and the Buyer agrees to accept and pay for such fuel as provided in Article 4 hereof, which fuel requirements shall be not less than 225,000 tons of coal per unit per year. It is further agreed that if during the first 10 years of the term of this contract the Buyer constructs additional units in which coal is used as the fuel, it shall give the Seller notice thereof two years prior to the completion of such unit or units and upon completion of same the fuel requirements thereof shall be added to this contract and be furnished by the Seller and accepted by the Buyer. It is understood that the Buyer has the option to be exercised two years prior to completion of said unit or units of determining whether coal or some other fuel shall be used in same. It is anticipated that deliveries will start approximately March, 1957 for the requirements of the first unit and that deliveries for the requirements of Unit #2 will begin when constructed.”
It also provided,
“The term of this agreement shall be for a period of twenty years from the first day of the month in which month first deliveries are made to the Buyer.”
The first unit of the Gannon plant commenced operation August 1, 1957; the second unit on October 29,1958. The third unit, a coal burning unit, was under construction at the time this action was filed.
For the appellant to equip the Gannon Station to burn coal necessitated a capital expenditure of $3,000,000.00 more than if the fuel initially chosen had been oil. To supply the appellant under this contract required a capital expenditure in excess of $7,500,000.00 by the appellees.
In April, 1957, just before the first coal was to be delivered under the contract, the appellees advised appellant that they would not perform under the contract, which they contended was illegal and unenforceable by either party. As a result, it has been necessary for appellant to purchase its coal requirements in the market at a price substantially higher than that provided for in the contract.
In making such arrangements it estimated that its coal requirements for its Gannon Station were approximately as follows:
Year 1958 .......... 350,000 tons
Year 1959 .......... 700,000 tons
Year 1960 .......... 700,000 tons
Year 1961 ..........1,000,000 tons
“To increase as required to about 2,250,-000 tons per year.”
At the time the contract was entered into, coal accounted for less than 6% of the fuel consumed in the entire state of Florida. Every electric generating in[770]*770stallation in peninsular Florida burned oil at that time. It was estimated by the buyer that within a very few years the Gannon Station would consume more coal than was presently consumed in the entire state of Florida. Peninsular Florida’s coal consumption was approximately 700,000 tons per year.
Section 3 of the Clayton Act provides as follows:
“It shall be unlawful for any person engaged in commerce, in the course of such commerce, to * * * contract for sale of goods, * * *, supplies, or other commodities, whether patented or unpatented, for use, consumption, or resale within the United States * * *, on the condition, agreement, or understanding that the * * * purchaser thereof shall not use or deal in the goods, * * *, supplies, or other commodities of a competitor or competitors of the * * * seller, where the effect of such * * * contract for sale or such condition, agreement, or understanding may be to substantially lessen competition or tend to create ”a monopoly in any line of commerce.”
Appellant’s initial contention is that the statutory history of Section 3 shows that the Act was not intended to apply to consumers; that it was intended solely for the purpose of protecting dealers and retailers from certain specific practices whereby powerful sellers, through some form of economic leverage, frequently required them to execute agreements not to deal in a competitor’s goods as a condition to the purchase of the seller’s goods; and that Congress never contemplated that the Act should prevent a consumer from contracting for the purchase of his requirements of a single commodity, even though the amount was very substantial. In other words, Congress was concerned only with attempts by sellers, who were economically powerful, to restrain competition in the distributive process. The statutory language is not so restrictive. It expressly refers to “a” contract for sale “for use, consumption or resale.” (Emphasis added.) The wording clearly includes a single sales contract for use or consumption, as well as multiple sales by sellers to numerous dealers or retailers for resale. There is nothing ambiguous about this language of the statute. Under such circumstances, we do not look to the legislative history of the Act in order to give it a different construction. In Standard Fashion Co. v. Magrane-Houston Co., 258 U.S. 346, 42 S.Ct. 360, 362, 66 L.Ed. 653, the Court had under consideration the construction of Section 3 of the Clayton Act. The Court said, “Much is said in the briefs concerning the reports of committees concerned with the enactment of this legislation, but the words of the act are plain and their meaning is apparent, without the necessity of resorting to the extraneous statements and often unsatisfactory aid of such reports.” To the same effect is Anchor Serum Co. v. Federal Trade Commission, 7 Cir., 217 F.2d 867, 870; George Van Camp & Sons v. American Can Co., 278 U.S. 245, 253-254, 49 S.Ct. 112, 73 L.Ed. 311. See also: Ohio Power Co. v. N. L. R. B., 6 Cir., 176 F.2d 385, 387, 11 A.L.R.2d 243, certiorari denied 338 U.S. 899, 70 S.Ct. 249, 94 L.Ed. 553; Mid-Continent Petroleum Corp. v. N. L. R. B., 6 Cir., 204 F.2d 613, 623, certiorari denied, 346 U.S. 856, 74 S.Ct. 71, 98 L.Ed. 369.
The statute condemns certain transactions, the effect of which may be to substantially lessen competition or tend to create a monopoly in any line of commerce. A single contract of sale of sufficient magnitude, with performance extending over an extended period of time, can cause this result. If it does have this result and is otherwise included within the plain wording of the statute, the statute must be construed in accordance with the Congressional purpose. Securities & Exchange Commission v. C. M. Joiner Leasing Corp., 320 U.S. 344, 350-351, 64 S.Ct. 120, 88 L.Ed. 88; Cornett-Lewis Coal Co. v. Commissioner, 6 Cir., 141 F.2d 1000, 1004. In Standard Oil Co. of California v. United States, 337 [771]*771U.S. 293, 302-305, 69 S.Ct. 1051, 93 L.Ed. 1371, the Supreme Court held Section 3 of the Act applicable to a situation where the seller did not occupy a dominant economic position in the industry.
Appellant contends that the contract of sale was not entered into “on the condition, agreement, or understanding” that the appellant would not use or deal in the goods of a competitor, which is necessary in order for the statute to be applicable. Concededly, the contract is a “requirements” contract and does not expressly contain the “condition” required by the statute. But, the contract provides for the appellees to supply the appellant its “total requirements” for the first two coal burning units and for such other units at the Gannon Station as would be constructed as coal burning units. The actual result of this contract is to prevent the purchaser from buying any coal for those units from a competitor of the appellees. We agree with the ruling of the District Judge that the contract is one within the sense and meaning of Section 3 of the Clayton Act, in that it requires the buyer not to use or deal in the goods of a competitor of the seller, irrespective of the absence of the specific words contained in the statute. In Standard Oil Co. of California v. United States, supra, 337 U.S. 293, 69 S.Ct. 1051, 93 L.Ed. 1371, and Anchor Serum Co. v. Federal Trade Commission, supra, 7 Cir., 217 F.2d 867, the contracts therein declared illegal were “requirements” contracts, which did not contain the unlawful condition in haec verba.
The foregoing ruling does not mean that “requirements” contracts are illegal per se. As pointed out in Standard Oil Co. of California v. United States, supra, 337 U.S. 293, 306-307, 69 S.Ct. 1051, 93 L.Ed. 1371, “requirements” contracts may well be of economic advantage to buyers as well as to sellers. The effect of the particular contract under the circumstances of the case is the determining factor. A “requirements” contract of some companies over a short period of time might well avoid the effect proscribed by the statute, while such a contract of large proportions and extending over a long period of years would clearly fall within the provisions of the statute. United States v. Linde Air Products Co., D.C.N.D.Ill., 83 F.Supp. 978, 982; United States v. American Can Co., D.C.N.D.Cal., 87 F.Supp. 18, 31-32.
There is also an important difference between a “requirements” contract and a contract which calls for the purchase of a definite quantity over a period of time which the buyer estimates to be sufficient to meet his requirements. As pointed out in United States v. Standard Oil Co., D.C.S.D.Cal., 78 F.Supp. 850 867, when a dealer agrees to take a specific amount of a product, there is a likelihood that he may, by reason of unexpected shortages or increased demands, use competitive products, and competitors thus will have the opportunity of putting their products into competitive use by the buyer, with the ultimate result of inducing the buyer to handle their products. Under a “requirements” contract for a long period of time this chance is, for all practical purposes, cut off. As stated by the Supreme Court in Standard Oil Co. of California v. United States, supra, 337 U.S. 293, 314, 69 S.Ct. 1051, 1062, 93 L.Ed. 1371, “It cannot be gainsaid that observance by a dealer of his requirements contract with Standard does effectively foreclose whatever opportunity there might be for competing suppliers to attract his patronage, •* ■» *»
Appellant makes the further contention that Section 3 is not applicable because the contract does not prohibit it from dealing in the goods of a competitor, as required by the Act. It is argued that coal and oil are competitive fuels, that the contract deals only with the purchase of coal, and that the appellant, as is permitted by the contract, buys oil from various suppliers for its non-coal burning units. It is also pointed out that there is the possibility that existing oil burning units could be converted to coal or that additional coal [772]*772burning units, not covered by the contract, could be constructed, the coal for which could be purchased from any of appellees’ competitors. The argument is a plausible one, but we believe it completely ignores the realities of the situation.
It is true that coal and oil are competitive fuels. West Ohio Gas Co. v. Public Utilities Commission, 294 U.S. 63, 72, 55 S.Ct. 316, 79 L.Ed. 761. But, for the purposes of Section 3 of the Clayton Act, we believe that each is to be treated as a separate, defined subdivision of the fuel industry generally. George Van Camp & Sons v. American Can Co., supra, 278 U.S. 245, 253, 49 S.Ct. 112, 73 L.Ed. 311; United States v. E. I. duPont de Nemours & Co., 353 U.S. 586, 593-594, 77 S.Ct. 872, 1 L.Ed.2d 1057; Oxford Varnish Corp. v. Ault & Wiborg Corp., 6 Cir., 83 F.2d 764, 766. The present contract deals with coal and coal burning units only, and we treat as irrevelant appellant’s purchases of oil for its oil burning units in an entirely separate plant at a different location.
At the time the contract was made, there were no coal burning units not covered by the contract. There is nothing to indicate that there is any planned or probable conversion of oil burning units into coal burning units or construction of coal burning units not covered by the contract. The contract requires the appellant to purchase all of its present, and its planned future, requirements of coal from a single seller. We agree with the ruling of the District Judge that the question must be decided upon the basis of realities and the contract construed reasonably in the light of existing facts. The remote possibility that a buyer might use a competitor’s product is an immaterial factor in the actual picture before the Court. United States v. International Salt Co., D.C.S.D.N.Y., 6 F.R.D. 302, 307, affirmed 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20; Northern Pacific Railway Co. v. United States, 356 U.S. 1, 10, footnote 8, 78 S.Ct. 514, 2 L.Ed.2d 545; Judson L. Thomson Mfg. Co. v. Federal Trade Commission, 1 Cir., 150 F.2d 952, certiorari denied, 326 U.S. 776, 66 S.Ct. 267, 90 L.Ed. 469; Signode Steel Strapping Co. v. Federal Trade Commission, 4 Cir., 132 F.2d 48.
As appellant contends, it is not sufficient that the “requirements” contract is one which in substance prohibits the purchaser from dealing in the goods of a competitor of the seller. Under Section 3 such a contract is not invalid unless its effect “may be to substantially lessen competition or tend to create a monopoly in any line of commerce.” In International Salt Co. v. United States, supra, 332 U.S. 392, 396, 68 S.Ct. 12, 92 L.Ed. 20, the Court ruled that where the volume of business affected by the contract cannot be said to be insignificant or insubstantial the tendency of the arrangement to accomplishment of monopoly seems obvious, pointing out that it is immaterial that the tendency is a creeping one rather than one that proceeds at full gallop. In Standard Oil Co. of California v. United States, supra, 337 U.S. 293, 314, 69 S.Ct. 1051, 93 L.Ed. 1371, the Court held that the qualifying clause of Section 3 is satisfied by proof that competition has been foreclosed in a substantial share of the line of commerce affected and that it was the purpose of Section 3 to remove a potential clog on competition wherever, were it to become actual, it would impede a substantial amount of competitive activity. Applying this standard to the present case there is no question but that the effect of the contract will be to substantially lessen competition. At the estimated 1959 rate of consumption, namely 700,000 tons per year, it would about equal peninsular Florida’s annual coal consumption prior to the execution of the contract. Using the estimated 1,000,000 tons for 1961 as the average annual purchases during the twenty year life of the contract, the total dollar pre-emption over the life of the contract at the minimum price of $6.40 per ton would amount to $128,000,000.00. This is, of course, not insignificant or insubstantial.
[773]*773Nor is the case removed from the operation of the Act by the fact that the contract would have overall beneficial results in starting the substantial use of coal in peninsular Florida and thus afford substantial competition to the use of oil. The possible benefits that may result from one particular contract, by reason of the special circumstances applicable to it, cannot override the general policy of the Act prohibiting transactions which tend to create a monopoly in any line of commerce. Pennsylvania Water & Power Co. v. Consolidated Gas, Electric Light & Power Co., 4 Cir., 184 F.2d 552, 559, certiorari denied, 340 U.S. 906, 71 S.Ct. 282, 95 L.Ed. 655; Standard Oil Co. of California v. United States, supra, 337 U.S. 293, 311-312, 69 S.Ct. 1051, 93 L.Ed. 1371.
Although the contract is in violation of the statute and therefore illegal, appellant contends that the appellees should not be allowed to take advantage of their own illegal act to relieve themselves of a contract obligation which now appears burdensome. Appellant recognizes the well settled general rule that a court will not lend its assistance in any way towards carrying out the terms of an illegal contract. McMullen v. Hoffman, 174 U.S. 639, 654, 19 S.Ct. 839, 43 L.Ed. 1117; E. E. Taenzer & Co. v. Chicago, R. I. & P. Ry. Co., 6 Cir., 191 F. 543, 550; National Transformer Corp. v. France Mfg. Co., 6 Cir., 215 F.2d 343, 361. But, it urges upon us a well recognized exception to this general rule that if the parties are not in pari delicto and the undertakings of each are not equally blameworthy, a court of equity may, in furtherance of justice and of a sound public policy, aid the one who is comparatively the more innocent. Marshall v. Lovell, 8 Cir., 19 F.2d 751, 753-754, quoting from Pomeroy’s Equity Jurisprudence, 4 Ed., Section 942; Restatement, Contracts, Section 601; 6 Corbin, Contracts, Section 1540 (1951); Ring v. Spina, 2 Cir., 148 F.2d 647, 653; Allgair v. Glenmore Distilleries Co., D.C.S.D.N.Y., 91 F.Supp. 93, 95-96; Hartford-Empire Co. v. Glenshaw Glass Co., D.C.W.D.Pa., 47 F.Supp. 711, 717. Appellant points out that Section 3 of the Clayton Act is directed against the seller; its purpose is to protect the buyer; and that the case falls within the exception.
We think that our decision on this issue is controlled by the recent analysis of the problem by the Supreme Court in Kelly v. Kosuga, 358 U.S. 516, 79 S.Ct. 429, 3 L.Ed.2d 475. In that case the Court rejected the defense of illegality in an action under a contract which violated the Sherman Anti-Trust Act, but pointed out that in a restricted class of cases the defense was a valid one. If the contract is of such a nature that a part of it constitutes an intelligible economic transaction in itself and the enforcement of that portion of the contract would not be to enforce a violation of the Act, then such portion of the contract will be enforced in order to avoid an inequitable result. But, the Court will not enforce a contract which is illegal under the anti-trust laws of the United States if, in doing so, the Court would be a party to carrying out of one of the very restraints forbidden by the Act. Kelly v. Kosuga, supra, 358 U.S. at page 520, 79 S.Ct. 429; Continental Wall Paper Co. v. Louis Voigt & Sons Co., 212 U.S. 227, 261-263, 29 S.Ct. 280, 53 L.Ed. 486. It is immaterial whether the contract was for the benefit of the seller or the buyer. The determining factor is whether the result of the contract had the proscribed effect and this is so, even though the result is a harsh one for one of the parties. Anchor Serum Co. v. Federal Trade Commission, supra, 7 Cir., 217 F.2d 867, 870, 873. The aid of the Court is denied not for the benefit of either of the parties, but because public policy demands that it should be denied without regard to the interests of individual parties. Continental Wall Paper Co. v. Louis Voigt & Sons Co., supra, 212 U.S. 227, 262, 29 S.Ct. 280, 53 L.Ed. 486.
The contract in the present case is an executory one. It is not at the [774]*774present time divisible into an executed portion and an executory portion so as to permit recovery for any portion which may have been performed without ordering a violation of the Act in the future. The appellant is seeking to have declared valid the very provisions which make it invalid. To do so would be to compel the parties to engage in business with each other over a period of twenty years in a manner which the Act declares invalid. The recent decision of the Court of Appeals for the Seventh Circuit in Beloit Culligan Soft Water Service, Inc. v. Culligan, Inc., 274 F.2d 29, December 15, 1959, rehearing denied January 12, 1960, is, we believe, distinguishable for the same reasons. Under such circumstances, the Court will not assist either party in its enforcement.
This view of the case makes it unnecessary to consider the effect of Sections 1 and 2 of the Sherman Act.
The judgment is affirmed.