Pulp Wood Co. v. Green Bay P. & F. Co. 157 Wis. 604. argued by counsel for respondent that these contracts place a limitation on the production of pulp and likewise on the output of paper; that there is a federation of interests between the contracting parties; that estimates of the amount of wood required are made so as to effectuate the ulterior purposes of the parties, or it may be the group itself makes the estimates; that the power is centered in this group to dominate the pulp and paper market; that plaintiff is merely a clearing-house for carrying out the unlawful objects of the combine; that the contracts referred to give the plaintiff power to crush competitors and force combinations; that they inevitably tend toward monopoly; that an unlawful restraint is placed upon the contracting consumers, in that they are not permitted to buy any part of their supply of wood under any circumSome other considerations of like tenor and effect are suggested, but the foregoing is a substantially full epitome of the contentions of counsel on the point principally argued. These contracts are roundly and at times extravagantly denounced by counsel. stances. Defendant asks us to assume altogether too much in passing upon these contracts and the averments of the complaint. This is not an action brought by or in behalf of the public to dissolve an unlawful combination. It is a case where one particeps criminis is trying to avoid responsibility to his copartners in crime, if any crime was in fact committed. In berating the plaintiff the defendant is also belaboring itself. It is true, it had no stock in the plaintiff corporation, but if the corporation was organized for an unlawful purpose, the defendant aided, abetted, and assisted it in the execution of such unlawful purpose. The contracts before us covered a period of six or seven years. If the production of pulp wood and of paper was restricted for the purpose of inflating the price of paper or depressing the price of wood, the defendant is as well aware of that fact as is any one else, and whether it is or not the matter is easily susceptible of proof. The de Pulp Wood Co. v. Green Bay P. & F. Co. 157 Wis. 604. fendant certainly knows how long its mill was shut down for want of pulp wood if it was shut down at all. It can be readily ascertained how long the other mills whose owners made like contracts were shut down for this or any other cause during the period. If no attempt was in fact made during this time to restrict output so as to squeeze up prices abnormally or to do other unlawful acts, that would be pretty convincing evidence that the plaintiff corporation was not organized to juggle the paper market. If the plaintiff has crushed or attempted to crush competitors, or has forced or attempted to force unlawful combinations to control the wood or paper market, these things should be susceptible of proof, but it is not apparent from the contracts or from the complaint that it has done either. For aught we know it may be shown on the trial that the contracting manufacturers made their estimates large enough to cover their needs without interference from any one; that the estimated amounts were substantially furnished, or that a good-faith attempt was made to supply them; that the exercise of that reasonable diligence which plaintiff agreed to exercise was sufficient to insure a full supply of wood, or at least as much as the mill owners could secure if they were themselves engaged in the work of buying; that the mills affected had all the wood they needed at all times, and that there was no thought of restricting the output of paper or pulp and that there was no restriction in fact and no influence exerted on the paper market whatever by this alleged unlawful combine. It might even be made to appear that the only harm which the parties could do, if they attempted to reduce production, would be to themselves. It might also be made to appear that the plaintiff was organized to further legitimate economies in the cost of the article which the mill men had to offer the consuming public. Manifestly the question under consideration cannot be intelligently decided until the actual facts are before the court, because the complaint and contracts Pulp Wood Co. v. Green Bay P. & F. Co. 157 Wis. 604. do not affirmatively establish the fact that there has been any undue restraint of competition or any undue obstruction of the course of trade. It is possible to imagine many things that might have happened, but the vital question here, after all, is, What has been done? The court should not be asked to draw on its imagination for its facts. The plaintiff has been operating long enough so that its practices should be well known. We do not think the contracts on their face inevi tably tend to unduly restrain trade or competition. There is nothing in itself unlawful in two or more persons appointing a common agent to purchase a commodity which they require and in giving such agent the exclusive right to do the buying. Nat. D. Co. v. Cream City I. Co. 80 Wis. 352, 56 N. W. 864; Kellogg v. Larkin, 3 Pin. 123; Wheeler-Stenzel Co. v. American W. G. Co. 202 Mass. 471, 476, 89 N. E. 28; Burley T. Soc. v. Gillaspy (Ind.) 100 N. E. 89; Reeves v. Decorah F. C. Soc. (Iowa) 140 N. W. 844; First Nat. Bank v. Missouri G. Co. 169 Mo. App. 374, 152 S. W. 378; Central S. R. Co. v. Cushman, 143 Mass. 353, 9 N. E. 629; New York T. R. Co. v. Brown, 61 N. J. Law, 536, 43 Atl. 100; Arkansas B. Co. v. Dunn, 173 Fed. 899; Anderson v. U. S. 171 U. S. 604, 613, 614, 19 Sup. Ct. 50; Connolly v. Union S. P. Co. 184 U. S. 540, 22 Sup. Ct. 431, read in connection with additional facts stated in dissenting opinion of Justice HOLMES in Continental W. P. Co. v. Louis Voight & Sons Co. 212 U. S. 227, 29 Sup. Ct. 280. We do not wish to be understood as approving all that is said in those cases. Such an arrangement becomes unlawful when it injuriously affects the public, or, in other words, when it unduly restricts competition or restrains trade. Ordinarily the invalidity of such an agreement must be made to appear from facts outside of the contract, because the writing seldom shows the facts necessary to determine whether the restraint is reasonable and permissible or undue and criminal. The circuit Pulp Wood Co. v. Green Bay P. & F. Co. 157 Wis. 604. court thought the contract was unlawful because it took a dozen consumers of wood out of the market and thus materially affected those who had pulp wood for sale, by reducing the number of buyers. The idea of the court was that the contracts had a tendency to reduce the price of wood. This is a contention not very often made in this class of cases, because, if true, it would also have a tendency to reduce the price at which the manufactured article might be sold to the consuming public. However, we think the pulp-wood producer is entitled to protection against combinations which unreasonably depress the price of his commodity, even though the general public might to some extent benefit by the depression. The complaint shows that the mills for which plaintiff acted as agent used about twelve per cent. of the entire output of wood in the territory in which it made its purchases. It cannot be held as a conclusion of law on these facts that there was an undue restraint of competition. The producers of wood have made no complaint on this score. There may have been an abundance of buyers to insure fair and free competition in bidding and a fair and adequate price for the wood. If so, it could not be said that competition was unduly restricted. The question is one calling for evidence to show how and to what extent it was reasonably probable that those who had wood for sale were affected. The first cause of action is brought to recover a loss sustained on the Perry contract. The effect of that contract on this cause of action has not been much discussed by counsel. There are three causes of action stated in the complaint, and the demurrer is interposed to the whole complaint, so that if any good cause of action is stated the order appealed from is erroneous. We do not deem it necessary to decide on the validity of that contract, or to what extent, if any, it would affect the plaintiff's right of recovery on its first cause of action should the contract be held void. Pulp Wood Co. v. Green Bay P. & F. Co. 157 Wis. 604. The mere fact that the plaintiff corporation was an unlawful combination would not relieve the defendant from paying for the goods purchased from it, provided the contract of purchase was not in itself unlawful. Nat. D. Co. v. Cream City I. Co. 86 Wis. 352, 56 N. W. 864; Connolly v. Union S. P. Co. 184 U. S. 540, 22 Sup. Ct. 431; International H. Co. v. Eaton Circuit Judge, 163 Mich. 55, 127 N. W. 695; Chicago W. P. Mills v. General P. Co. 147 Fed. 491. This being the law, it is not apparent how the defendant can derive any benefit from sec. 1791j, Stats. of Wis. Sec. 1747e, Stats. of Wis., is a copy of the federal statute, except that it applies to attempts to monopolize trade and commerce within the state and prescribes a lesser penalty for its violation than is provided for in the act of Congress. It originally appeared as ch. 219, Laws of 1893. Since then it has received substantially the same construction, sub silentio at least, that was placed on the federal law in the Standard Oil and Tobacco Cases, as will be seen from an examination of the following cases decided since the law was enacted: Cottington v. Swan, 128 Wis. 321, 107 N. W. 336; My Laundry Co. v. Schmeling, 129 Wis. 597, 109 N. W. 540; Kradwell v. Thiesen, 131 Wis. 97, 111 N. W. 233; Burton v. Douglass, 141 Wis. 110, 123 N. W. 631; Eureka L. Co. v. Long, 146 Wis. 205, 131 N. W. 412; Ruhland v. King, 154 Wis. 545, 143 N. W. 681; Nat. D. Co. v. Cream City I. Co., supra; Richards v. American D. & S. Co. 87 Wis. 503, 58 N. W. 787; Tecktonius v. Scott, 110 Wis. 441, 86 N. W. 672. If the above statute has any application to the facts in this case, it should receive the same interpretation that was placed on the federal act, from which it was taken, by the supreme court of the United States. By the Court.-Order reversed, and cause remanded for further proceedings. KERWIN, J., took no part. VOL. 157-40 |