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at common law or under a State statute for the same injury does not constitute an election of remedies which will bar a subsequent suit under the Federal statute provided at least that the former suit was previously discontinued. 8

Where the complaint or declaration sets forth two causes of action for the injury one under a State law, and the other under the Employers' Liability Act, and shows that at the time of the injury plaintiff and defendant were engaged in interstate commerce, the Federal law controls both the liability and the right of recovery.

$ 454k. Pleadings in actions at common law under Interstate Commerce Acts. A declaration or petition to recover damages awarded by the Interstate Commerce Commission as reparation for excessive or discriminating rates must show that such rates were wrongful in one of these respects. An averment that the Commission has so found is insufficient, but where such a declaration did not in terms allege the particular rates upon which the commission passed, but set out the citations of the cases where the determination was reported for the purpose of incorporating the pertinent facts of such decisions into the pleading by reference, it was held that the court was authorized to examine the facts set out in such decisions when deciding a demurrer.3 An allegation that the charges were unjust, unreasonable, and in violation of law is sufficiently specific to resist a general demurrer.4 In an action by a carrier for the difference between the amount paid for freight and the legal rate as fixed by its schedules and tariffs filed with the Interstate Commerce Commission, the plaintiff's pleading is not insufficient when it omits to set forth in full the schedules and tariffs and the cer

Line R. Co., C. C. A., 210 Fed. 761;
O'Dell v. Southern Ry. Co., 248
Fed. 343, 345. See Lucchetti v.
Phila. & R. Ry. Co., 233 Fed. 137,
supra, & 210b.

8 Hogan v. New York Cent. & H. R. R. Co., C. C. A., 223 Fed.

Co. v. Denver & R. G. R. Co., 200
Fed. 614. See supra, 88 32a, 77b.

2 Ibid.

3 A. J. Phillips Co. v. Grand Trunk Western Ry, Co., C. C. A., 195 Fed. 12. See Jacoby v. Pennsylvania R. Co., 200 Fed. 989.

4 Denver & R. G. R. Co. v. Baer Bros. Mercantile Co., C. C. A., 209 Fed. 577.

890.

9 Peek v. Boston & M. R. R., 223 Fed. 448.

8 454k. 1 Baer Bros. Mercantile

tificates of concurrence in the rates published by another railroad upon which it relies.

In an action against a common carrier for loss or damage in transit to goods shipped in interstate commerce under the Carmack Amendment 6 to the Interstate Commerce Act, it will be presumed that the defendant issued a bill of lading in accordance with the statute, although the complaint is silent in that respect.?

$ 4541. Pleading in actions at common law under anti-trust • statutes. The better opinion is that a count is not bad for duplicity in an action under the Federal Anti-Trust Act of July 2, 1890, when it alleges that the defendant has entered into a contract, combination and conspiracy in restraint of trade.2 In

6 McFadden v. Alabama Great machines thereunder, the expenditure Southern R. Co., C. C. A., 241 of nearly $100,000 to develop the Fed. 562.

business, the profits of the business 6 Act of January 24, 1914, 38 St. immediately prior to the alleged at L. 278.

wrongful acts of the defendant and 7 Southern Pacific Co. v. Stewart, the entire loss of profits thereafter, 245 U. S. 359.

a list of the customers with whom $ 4541. 126 St. at L. 209, ch. he had done business and persons 647, 881, 2, Comp. St. 88 8820. with whom he was negotiating for 8830.

further business, the trade condi. 2 Buckeye Powder Co. v. E. 1. tions prior to the organization of Du Pont de Nemours Powder Co., the defendant company, the illegal 196 Fed. 514; Cilley v. United Shoe combination and conspiracy of its Machinery Co., D. Mass., 202 Fed. pro-concerns, its utilization of 598; Strought v. United Shoe Ma- leases and licenses as an instrumenchinery Co., D. Mass., 202 Fed. tality to create an illegal monopoly 602; citing: Swift v. U. S., 196 and combination (the general forms U. S. 375, 396, 25 Sup. Ct. 276, of leases and licenses being set 279, 49 L. ed. 518; U. S. v. Am. forth verbatim in an exhibit), the Tobacco Co., 221 U. S. 106, 184, effect of these leases and licenses in 31 Sup. Ct. 632, 650, 55 L. ed. 663. excluding the plaintiff from the mar. Contra, Rice v. Standard Oil Co., ket, the attempt through the leases D. N. J., 134 Fed. 464. A dec. and licenses to oxtend the scope and laration was held to be sufficient, operation of the defendant comwhich alleged in detail: the estab. pany's patents, the superior merit lishment of the shoe machinery busi. and efficiency of the plaintiffs' line ness of the plaintiff at Boston in of shoe machinery, the threats of the 1893, his engaging thereafter in in- officers of the defendant company to terstate commerce, his building up the plaintiff made in pursuance of of the business, his procuring of its scheme to monopolize, the depatents and the construction of shoe struction of the established business

the Southern District of New York, where the complaint set forth in the same cause of action facts which were violations of

and interstate commerce of the plaintiff, the diversion of his customers, the destruction of the value of his patent interests, and other injuries to his business and property.'! And further: “13. Accordingly, the plaintiff says that the defendant is and has been since its organization an illegal combination in restraint of trade and a monopoly existing wrongfully and in violation of the act of Congress of July 2, 1890, chapter 647, commonly known as the Sherman Act; that each and every one of the leases, copies of which are hereto annexed, is a contract in restraint of trade and com merce among the several states and with foreign nations, in that the cffect has been to prevent practi. cally all of the shoe manufacturers in the United States from purchasing, leasing, or otherwise acquiring or obtaining in any of the states of the United States or in any foreign market or elsewhere, except from the defendant shoe machinery and mechanisms; that said group or system of leases which the defend ant has required and secured to be signed by nearly all the shoe manu facturers in the United States have created and now maintain a con spiracy and combination in restraint of trade and commerce among the several states and with foreign nations, to which the de fendant and all its acquired concerns and companies are parties, whereby the defendant has monopo lized and now monopolizes substantially the entire trade and commerce in shoe machinery and mechanisms among the several states and with foreign nations and

suppresses all competition therein, and has entirely excluded the plaintiff from participation in such trade and commerce; that said leases are essential parts of an illegal scheme, combination, and conspiracy in restraint of trade and commerce, and have been utilized by the defendant as an important instrumentality in creating and supporting its illegal monopoly in the business of dealing in and with shoe machinery and mechanisms.

"14. That through and by reason of the said conspiracy and monopoly acquired by the defendant comp any of practically the entire business of manufacturing shoe machinery throughout the United States the plaintiff has been prevented from selling the shoe machinery manufactured by him, including machines covered by said patents relating thereto enumerated in paragraph 1 to the manufacturers included in Exhibit A and to the other shoe manufacturers in the various states of the United States, and by means of each and all acts done by the defendant in pursuance of said monopoly the defendant has utterly destroyed the interstate trade and commerce of the plaintiff with said shoe manu. facturers by the loss of many or. ders and customers directly resulting therefrom, the interests of the plaintiff in the aforesaid patents enumerated in paragraph i have been rendered valueless, and the plaintiff has otherwise been greatly injured in his business and property by reason of said monopoly and the acts of the defendant done in pursuance thereof, and to carry the

same into effect, which are declared engaged in manufacturing and dealto be unlawful by the aforesaid ing in shoe machinery, and of drivact of Congress of July 2, 1890, ing out of business other companies chapter 647, to the amount of three or concerns engaged in that business, hundred thousand ($300,000) dol- and of preventing other companies lars, to recover threefold which or concerns from entering into that damages and costs of suit, including business, thereby suppressing and a reasonable attorney's fee under preventing competition and acquirseetion 7 of said act, this suit is ing and maintaining a monopoly of brought." Cilley v. United Shoe the shoe machinery business, and Mach. Co., 202 Fed. 598, 599, 600. that it has acquired and now main• A declaration was held to be suffi- tains a practical monopoly of that cient which alleged in substance business; that the defendants Winsthat the plaintiff is trustee of the low, Brown, and Hurd are, and have Goddu Sons Metal Fastening Com- been since the, organization of the pany, duly appointed by the Su- United Shoe Machinery Company, preme Judicial Court of Maine in officers and directors and members proceedings for the dissolution of of the executive committee of that that corporation; that as such trus corporation, exercising management tee he holds title to all property and control of its business affairs; and rights of action of the Goddu that in pursuance of the plan to supSons Metal Fastening Company; press and eliminate competition, and that the Goddu Sons Metal Fasten to support and protect the monopoly ing Company, after its organization of the United Shoe Machinery Comin 1897, acquired certain patents pany, the individual defendants, or pertaining to shoe machinery, and some of them, entered into negotiathat it made preparations to place tions with certain of the stockholdupon the market machines con- ers of the Goddu Sons Metal Fasstructed under its patents, and tening Company for the purchase of spent a considerable sum in adver- their stock, and that as a result of tising that it constructed machines these negotiations the United Shoe ready for sale or lease; that a num Machinery Company acquired a maber of shoe manufacturers were de.. jority of the stock and the control sirous of using these machines upon and management of the Goddu Sons terms beneficial to the company; Metal Fastening Company; that in that the company was prepared and pursuance of its plan to eliminate intended to engage in trade and competition, and to support and procommerce, and to do a large and tect its monopoly, the United Shoe profitable business in shoe machin- . Machinery Company caused its ery among the several states and president, the defendant Winslow, with foreign nations; that the de- to be elected president of the Goddu fendant the United Shoe Machinery Sons Metal Fastening Company, its Company was organized in 1899, for own treasurer, the defendant Brown, the purpose of acquiring by legal to be elected treasurer of the Goddu and illegal means certain companies Sons Metal Fastening Company, and

Fed. Prac. Vol. III-3

the Act of July 2, 1890, with other facts which were violations of the Clayton Act of October 15, 1914,3 the plaintiff was ordered to make a separate statement of them as separate causes of action. It has been held that a declaration in an action to recover damages under the Anti-Trust law is bad for duplicity, when it alleges, in a single count, that defendant entered into a contract, combination and conspiracy in restraint of trade,5 and that it is bad for duplicity and uncertainty, when it gives no information concerning the combination and conspiracy, “except that the combination is in the form of a trust, and that the combination and conspiracy are in restraint of trade,” not stating when, how, by whom, or for what purpose they were formed.6 .

a part of its own directors, including the defendant Hurd, to be elected as the entire board of directors of the Goddu Sons Metal Fastening Company; that the persons so elected have ever since been continued in their respective offices by means of the stock control exercised by the United Shoe Machinery Company; that the control thus acquired by the United' Shoe Machinery Company has been exercised, not for the purpose of carrying on and developing the business for which the Goddu Sons Metal Fastening Company was organized, but for the purpose of preventing that company from doing business, thereby preventing and destroying its competition, and protecting and supporting the monop oly of the United Shoe Machinery Company; that the officers of the Goddu Sons Metal Fastening Company, in pursuance of the plan and purpose of the United Shoe Machinery Company, have continuously declined to cause the Goddu Sons Metal Fastening Company to make any use of its patents and patent rights, or to permit it to do any business, that the assets of the Goddu Sons Metal Fastening Company have

thus remained idle and have become wasted, and thus that its patents are now about to expire and have become practically worthless; that the United Shoe Machinery Company and the individual defendants have thus accomplished their purpose of destroying the competition of the Goddu Sons Metal Fastening Company, and of sustaining the monopoly of the United Shoe Machinery Company; that the Goddu Sons Metal Fastening Company has been greatly injured in its business and property; and that the plaintiff is entitled, under the Sherman AntiTrust Act, to recover threefold damages, costs of suit, and a reasonable attorney's fee." Stow v. United Shoe Mach. Co., 202 Fed. 602, 603, 604.

338 St. at L. 730, ch. 323, Comp. St. $$ 8835a-8835i.

4 Baran v. Goodyear Tire & Rubber Co., 256 Fed. 570.

5 Rice v. Standard Oil Co., 134 Fed. 464. But see Buckeye Powder Co. v. E. I. Du Pont de Nemour Powders Co., 196 Fed. 514.

6 Rice v. Standard Oil Co., 134 Fed. 464, 468.

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