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Buckeye Powder Co. v. DuPont Powder Co., 248 U.S. 55 (1918)

Buckeye Powder Company v.

E.I. DuPont de Nemours Powder Company

No. 7

Argued April 30, May 1, 1917

Restored to docket for reargument June 10, 1918

Reargued November 13, 1818

Decided December 9, 1918

248 U.S. 55


In an action for triple damages under § 7 of the Sherman Act, where the scope of the declaration, plaintiff's interpretation of it and the nature of the proofs characterized the case as based on § 2 of the Act, dealing with attempted and effected monopolies, rather than on § 1, dealing with contracts and combinations in restraint of trade, and where the case was fully tried upon this basis, without objection, and the jury was allowed to consider contracts so far as they bore upon the supposed attempt to subject plaintiff to a monopoly,


(1) That technical error committed at the close of the trial in requiring plaintiff to elect whether it would rely on the first or second section of the act (whereupon it elected the second without asking to amend) was harmless. P. 248 U. S. 60.

(2) That instructions pointing out that § 2 extends to attempts to monopolize were advantageous, rather than harmful, to plaintiff. P. 248 U. S. 62.

In such an action, where the only ground for holding a defendant is responsibility (through stock ownership) for the acts of another defendant, error in directing a verdict for the former is harmless if the latter be exonerated upon the merits by the jury after instructions fairly presenting the case against it. P. 248 U. S. 62.

Before the Clayton Act, c. 323, 38 Stat. 731, a judgment in a government proceeding finding a company guilty of an attempt to monopolize was inadmissible in a private action for triple damages under § 7 of the Sherman Act. P. 248 U. S. 63.

The provisions of § 5 of the Clayton Act for admitting such judgments, "hereafter rendered" in government cases, in other litigation, and for suspending the statute of limitations as to private rights pending government prosecutions, do not affect retrospectively, on review, a judgment rendered in an action for triple damages before the Clayton Act was passed. Id.

A corporation suing for triple damages under the Sherman Act has

Page 248 U. S. 56

no ground to complain of the mere existence of a power in trade attained by a defendant and known to the organizer of the plaintiff before the plaintiff was created, without proof of some oppressive use of it afterwards. P. 248 U. S. 63.

An instruction held to state correctly that, on the question whether plaintiff's failure in trade was due to its incapacity or to defendant's oppression, the jury might consider whether the motive in organizing plaintiff was to sell out to defendant or to compete. P. 248 U. S. 64.

In an action for triple damages under the Sherman Act, the court excluded statements by third parties of their reasons for refusing or ceasing to do business with plaintiff. Held correct, as the statements were wanted not as evidence of motives, but as evidence of fact recited as furnishing the motives. P. 248 U. S. 65.

Where the jury found for defendant, rulings as to damages held immaterial. P. 248 U. S. 65.

223 F. 881 affirmed.

The case is stated in the opinion.

Page 248 U. S. 60

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