Opinion of the Court.

compelled to do it at a 10 per cent. less profit, and he offered evidence to prove this loss was the result of this combination and conspiracy. So that, it would seem to me, the fact of his drawing out an amount for personal compensation, which did not diminish after the combination went into effect, was under the circumstances no evidence whatever of a failure to establish an injury to his business in the elements claimed. The natural increase of his business, which was done at a greater cost, made his gross and net income sufficient to enable him to take these amounts out for his personal use, but these amounts did not in any way show that either the net or gross income during the time he was on the blacklist was greater in amount than it was before, nor could it in any way throw light upon the question of the extra cost and losses which he sustained by reason of the combination, and for that reason the court did not deem it its duty to call the jury's attention to the evidence for the purpose indicated by the defendants. The court being satisfied that the verdict is excessive in amount and being able clearly to establish by computation the amount of this excess, it is the duty of the court to grant a new trail to the defendants, unless the plaintiff, within the time hereinafter specified, files a remittitur for the excess. Pepper & Lewis' Digest of Decisions, 23029; Pleasants v. Fant, 89 U. S. 116, 22 L. Ed. 780; Southern Pacific Co. v. Hamilton, 54 Fed. 468, C. C. A. 441.

A decree will, therefore, be entered that the plaintiff file a remittitur in the amount of $9,857.48 on or before February 1, 1906, reducing the verdict to the sum of $10,880.52 or a new trial will be granted. In case a remittitur be filed reducing the verdict to $10,880.52, the clerk is directed to multiply the said amount, to wit, $10,880.52, by three, and enter judgment in favor of C. G. A. Loder and against Frederick Aschenbach and Adolph William Miller, trading as Aschenbach & Miller; C. F. Shoemaker and Miers Busch, trading as Shoemaker & Busch; Richard M. Shoemaker, Thomas E. Shoemaker and Benjamin H. Shoemaker, trading as Robert Shoemaker & Co.; Smith, Kline & French Company; John Wyeth & Bro. (incorporated); Valentine H. Smith & Co.; Henry K. Wampole, Albert J. Koch, S. Ross Campbell, trad

21220 VOL 2-07 M- -63

Syllabus.

ing as Henry K. Wampole & Co.; Edward H. Hance, Joseph C. Hance, Anthony M. Hance, and Edward H. Hance, Jr., trading as Hance Bros. & White; H. K. Mulford Company; William R. Warner, trading as W. R. Warner & Co.; Philadelphia Association of Retail Druggists; and Thomas H. Potts, William L. Cliffe, William E. Lee, David J. Reese, George W. Fehr, Carl W. Shull, [1023] Nathan Cozens, Augustus T. Pollard, Henry C. Blair, William H. Gano, Alexander H. Frankeberger, Charles Leedom, Richard II. Lackey, Henry A. Nolte, Walter A. Rumsey, James C. Perry, E. C. Bottume, Warren H. Poley, Henry A. Borell and Charles A. Eckles, defendants, for the sum of $32,641.56 and an attorney's fee of $2,500 to be paid to the plaintiff's attorney.

[242] HADLEY DEAN PLATE GLASS CO. v. HIGHLAND GLASS CO.

(Circuit Court of Appeals, Eighth Circuit. January 19, 1906.)
[143 Fed., 242.]

SALE-CONTRACT TO MANUFACTURE AND DELIVER GOODS-" MORE OR LESS" AS QUALIFYING STATEMENT OF QUANTITY.—Where, in a contract for the manufacture and delivery of goods, the statement of quantity is qualified by the words "more or less," these, unless supplemented by language giving them a broader scope, apply only to such accidental or immaterial variations in quantity as would naturally occur in connection with such a transaction.

[Ed. Note. For cases in point, see vol. 43, Cent. Dig. Sales, § 191. Contracts for sales of things to be produced or manufactured, see note to Star Brewery Co. v. Horst, 58 C. C. A. 363.] DAMAGES-CONTRACT-BREACH BY VENDEE-MEASURE OF DAMAGES.— Where a contract for the manufacture and delivery of goods is repudiated by the vendee before the goods are manufactured, the measure of the vendor's damages is the difference between the cost of manufacture and delivery and the contract price.

[Ed. Note. For cases in point, see vol. 43, Cent. Dig. Sales, § 1106.] MONOPOLIES COMBINATION IN RESTRAINT OF TRADE-MISSOURI STATUTE IS WITHOUT APPLICATION TO INTETSTATE COMMERCE.-The antitrust statute of Missouri (Rev. St. Mo. 1899, §§ 8965-8970) can have no application to a contract for the sale of goods to be manufactured by the vendor in another state and delivered to the vendee in Missouri, because such a contract directly relates to Interstate Com

Opinion of the Court.

merce, the regulation of which is within the exclusive authority of Congress.

SAME SHERMAN ANTI-TRUST ACT-CONTRACT FOR SALE OF GOODS BY MEMBER OF COMBINATION.-The Act of July 2, 1890, c. 647, § 1, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200], known as the "Sherman Anti-Trust Act," does not invalidate, or prevent a recovery for the breach of a collateral contract for the manufacture and sale of goods by a member of a combination formed for the purpose of restraining interstate trade in such goods.

(Syllabus by the Court.)

In Error to the Circuit Court of the United States for the Eastern District of Missouri.

Charles Cummings Collins (W. F. Carter, William T. Jones, and A. R. Taylor, on the brief), for plaintiff in error.

James C. Jones (Lon O. Hocker, C. P. Ellerbe, C. P. Ellerbe, Jr., and Frank A. Thompson, on the brief), for defendant in error.

Before VAN DEVANTER and Hook, Circuit Judges, and LOCHREN, District Judge.

VAN DEVANTER, Circuit Judge.

The Highland Glass Company, a Pennsylvania corporation, engaged in manufacturing glass in that state, received and accepted the following order for the manufacture and delivery of glass from the Hadley-Dean Glass Company, a Missouri corporation, carrying on the business of a jobber and dealer in glass at St. Louis:

"Book us with 200,000 sq. ft. ribbed more or less subject to sizes and delivery as required at price 5c. sq. ft. cut to size St. Louis de livery less 1% cash 10 days acct. St. L. World's Fair bldgs. Acc't Mr. Torrence. Ack."

[243] 23,056 square feet of glass was manufactured, delivered, accepted, and paid for under the contract so made. The Hadley-Dean Company then refused to furnish specifications for or to accept the remaining 176,944 feet, although the Highland Company offered and was ready and willing to manufacture and deliver the same as agreed. In an action in the Circuit Court to recover damages from the HadleyDean Company for its breach of the contract a verdict was directed in favor of the Highland Company for the difference

Opinion of the Court.

between the cost of manufacturing and delivering the remaining glass and the contract price, and judgment was rendered on the verdict returned under that direction. The purpose in prosecuting the present writ of error is to secure a reversal of that judgment.

It is assigned as error that the court held that the order was for 200,000 square feet of glass, more or less, the latter words having their usual signification, and rejected the defendant's contention that the order was for such an amount of glass as would be required by the defendant "to fulfill its contracts for glazing the St. Louis World's Fair Buildings." No reference to the existence of any such contracts or to the amount of glass required to fulfill them is made in the pleadings or in the evidence, and it is conceded that the question presented by this assignment is to be determined by an examination of the order alone. We think We think it was properly interpreted. The quantity of glass is expressed in the words "200,000 sq. ft., ribbed more or less." The succeeding phrase "subject to sizes and delivery as required," merely reserved to the defendant the right to thereafter designate the sizes to which the glass should be cut and the times when it should be delivered. The still later phrase "acc't St. I. World's Fair bldgs.," while explaining the use to which the glass was to be applied, is, in point of place and grammatical arrangement, so completely separated from the expression in respect to quantity that it could not well have been intended to qualify that expression. A more reasonable view of its purpose is that it was intended to give some indication of when the glass would be required and to apprise the plaintiff of the necessity for promptly conforming to such directions as should thereafter be given for its manufacture and delivery. It was common knowledge that the time for the completion of the World's Fair buildings was limited and that a failure to complete them within that time would result in serious inconvenience and loss. True the quantity specified is qualified by the words "more or less,” but it is well settled that in a contract like this these words, unless supplemented by language giving them a broader scope, apply only to such accidental or immaterial variations in quantity as would naturally occur in connection with such

Opinion of the Court.

a transaction. Brawley v. United States, 96 U. S. 168, 172, 24 L. Ed. 622; Norrington v. Wright, 115 U. S. 188, 204, 6 Sup. Ct. 12, 29 L. Ed. 366; Pine River Logging Co. v. United States, 186 U. S. 279, 22 Sup. Ct. 920, 46 L. Ed. 1164; Id., 32 C. C. A. 406, 89 Fed. 907. There is no such broadening language in the order.

It is assigned as error that the damages were not meas ured by the difference between the market value of the glass and the con- [244] tract price, but the point may be dis missed with the statement that, under the established rule in this jurisdiction, and also in the state of Missouri where the controversy arose, where a contract for the manufacture and delivery of goods is repudiated by the vendee before the goods are manufactured, the measure of the vendor's damages is the difference between the cost of manufacture and delivery and contract price. Kingman v. Western Mfg. Co., 34 C. C. A. 489, 92 Fed. 486; Philadelphia, etc., Co. v. Howard, 13 How. 307, 344, 14 L. Ed. 157; United States v. Speed, 8 Wall. 77, 84, 19 L. Ed. 449; Hinckley v. Pittsburg Steel Co.. 121 U. S. 264, 7 Sup. Ct. 875, 30 L. Ed. 967; Roehm v. Horst, 178 U. S. 1, 21, 20 Sup. Ct. 780, 44 L. Ed. 953; Black River Lumber Co. v. Warner, 93 Mo. 374, 388, 6 S. W. 210; Crescent Mfg. Co. v. Nelson Mfg. Co., 100 Mo. 325, 336, 13 S. W. 503; Chapman v. Kansas City, etc., Ry. Co., 146 Mo. 481, 508, 48 S. W. 646.

There was some evidence tending to show that at the time of making the contract the plaintiff and others, not including the defendant, were in an unlawful combination to stifle competition in the sale of glass and to arbitrarily increase its price, and because of this it is contended that in directing a verdict for the plaintiff the court failed to give effect to the anti-trust statute of Missouri (Rev. St. Mo. 1899, $$ 8965-8970), and to the anti-trust legislation of Congress (Act July 2, 1890, c. 647, § 1, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]; Act August 27, 1894, c. 349, §§ 73-77, 28 Stat. 570 U. S. Comp. St. 1901, pp. 3202, 3203]).

Of the state stautute it is sufficient to say that it can have no application to the contract under consideration without impinging upon the exclusive authority of Congress to regulate commerce among the several states. Railroad Co. v.