and plats of any right of way for a wagon road, railroad, or other highway over and across any forest reservation or reservoir site when in his judgment the public interests will not be injuriously affected thereby." Of this act we said, in Chicago, M. & St. P. R. Co. v. United States, 244 U. S. 351, 357, 358, 61 L. ed. 1184, 1193, 1194, 37 Sup. Ct. Rep. 625, that it commits to the Secretary of the Interior the question of determining whether the public will be injuriously affected by the grant of a right of way to a railroad through a forest reserve, and authorizes him to file and approve surveys and plats of the right of way. The measure of his discretion is large, and only through his approval can a right of way be acquired. its amended map of location, which was too late, Van Dyke having taken the land as a homestead December 22, 1909. And to the contention of the company that if the land was public, it was not bound to follow the line as shown on its map and profile, plaintiffs in error reply that the land had ceased to be public land by being thrown into the National Forest Reserve, and that the railroad was hence restricted to the specific right of way shown on its approved map and profile; or, if changed to another and different route, the consent of the Interior Department was necessary, and that such permission had not been given, and hence the railroad acquired no rights; at least, against plaintiffs in error. It is conceded, however, that the railroad company was entitled to a right of way to the extent of 50 feet on each side of the center of its line of track acquired by deed from the Miami Land-in 1906, in preparation for the con& Improvement Company, in the execution of which deed Van Dyke "acquiesced." Therefore, as said by the supreme court, "50 feet on each side of [53] the center line of the track, or 100 feet of the right of way, are not involved in this suit; the area in question being the excess of 100 feet up to 200 feet, amounting to 2.23 acres." [18 Ariz. 221, 157 Pac. 1019.] We have had occasion to consider the Act of 1875 (18 Stat. at L. 482, chap. 152, Comp. Stat. 1916, § 4921), and what constituted a definite location of the right of way under it, and have decided that such event occurs by the actual construction of the road. Jamestown & N. R. Co. v. Jones, 177 U. S. 125, 44 L. ed. 698, 20 Sup. Ct. Rep. 568; Minneapolis, St. P. & S. Ste. M. R. Co. v. Doughty, 208 U. S. 251, 52 L. ed. 474, 28 Sup. Ct. Rep. 291; Stalker v. Oregon Short Line R. Co. 225 U. S. 142, 56 L. ed. 1027, 32 Sup. Ct. Rep. 636. It was found by the courts below that the construction of the railroad was commenced in April, 1909, and completed September, 1909, and that trains have been operated on it ever since. This satisfies the condition expressed in the cited cases of the appropriation of a right of way. But it is objected that the land was not then subject to appropriation, being within a forest reserve. In reply the Act of Congress of March 3, 1899 (30 Stat. at L. 1233, chap. 427, Comp. Stat. 1916, § 4945), is adduced. It reads as follows: "That in the form provided by existing law the Secretary of the Interior may file and approve surveys The condition was satisfied in this case. The Globe Company-to the rights of which defendant in error [54] succeeded struction of its road, platted its road, and filed in the local land office its map and profile of definite location under the Act of 1875, in November, 1908. Several months prior to the latter date the land of the platted line and the land in dispute were thrown into the Crook National Forest Reserve. In the following year the railroad company made application to the Commissioner of the General Land Office for permission to enter the reserve and to locate and construct its road thereon. And the application was communicated to the Department of Agriculture and approved by the acting district forester; the permission was granted and the map and profile of the road was approved September 21, 1909, by the Secretary of the Interior, pursuant to the Act of Congress of March 3, 1875. The road was constructed, and, as we have said, completed in September, 1909, and put into operation in October. And these successive steps were before the date on which Van Dyke attempted to initiate a homestead right. The discretion of the Secretary of the Interior was therefore exercised, and we agree with the supreme court that we cannot infer a rule of the Department which precluded the granting of permission upon the original map and profile. Plaintiffs in error contend that the railroad company had no power to construct a road from Globe to Miami, Arizona, because its charter failed to designate such a line as within the project for which it was incorporated. This was made an issue by the pleadings and the court found against it. Besides, it is not within the province of plaintiffs in dered prior to the enactment of the Clayerror to make the objection; it was a ton Act of October 15, 1914 (38 Stat. at matter for the Secretary of the Interior L. 731, chap. 323, Comp. Stat. 1916, § to determine. And, again, plaintiffs in dence in a private action for treble damerror have not such relation to the rail-ages by the provision of the later act makroad company as to complain of the ex-ing such criminal judgments "hereafter ercise of power outside of its charter. Judgment affirmed. 8835e), were not made admissible in evi rendered" prima facie evidence against the defendant in any suit or proceeding brought by any other party against such defendant under the Anti-trust Laws as to all matters respecting which such judgments would [55] BUCKEYE POWDER COMPANY, be an estoppel as between the parties there Plff. in Err., V. E. I. DUPONT DE NEMOURS POWDER COMPANY, Eastern Dynamite Company, and International Smokeless Powder & Chemical Company. (See S. C. Reporter's ed. 55-65.) Appeal harmless error requiring suit election of cause of action under Anti-trust Act. 1. The error, if any, in requiring plaintiff in a treble damage suit under the Sherman Anti-trust Act of July 2, 1890 (26 Stat. at L. 210, chap. 647, Comp. Stat. 1916, § 8829), § 7, to elect at the close of the trial whether it will rely upon the 1st or 2d sections of that act, is harmless where plaintiff, in going through the form of electing to rely upon acts violating the 2d section, simply adheres to the interpretation of its declaration that it accepted at the beginning of the trial, and endeavored to sustain throughout, and docs not ask to amend. [For other cases, see Appeal and Error, VIII. m, 2, in Digest Sup. Ct. 1908.] Appeal harmless error directing verdict suit under Anti-trust Act. 2. Any error committed in directing a verdict in favor of two of the three defendants in a treble damage suit under the Sherman Anti-trust Act of July 2, 1890 (26 Stat. at L. 309, chap. 647, Comp. Stat. 1916, § 8820), is harmless where the jury brought in a verdict exonerating the remaining defendant, and there were no acts done by either of these defendants that were aimed at the plaintiff, the only substantial ground for charging them being that, if they were parties to a conspiracy, as was alleged, they became responsible for the acts of the third defendant. [For other cases, see Appeal and Error, VIII. m, 6, in Digest Sup. Ct. 1908.] Evidence - of prior judgment under Anti-trust Act. suit to. [For other cases, see Evidence, IV. k; Judg ment, III. k, in Digest Sup. Ct. 1908.] Limitation of actions suspension of statute suit under Anti-trust Act. 4. The running of the Statute of Limitations was not, as to claims already barred, suspended retrospectively pending a government suit under the Sherman Anti-trust Act of July 2, 1890 (26 Stat. at L. 209, chap. 647, Comp. Stat. 1916, § 8820), by the provision of the Clayton Act of October 15, 1914 (38 Stat. at L. 731, chap. 323, Comp. Stat. 1916, § 8835e), § 5, that whenever any suit or proceeding in equity or criminal prosecution is instituted by the United States to prevent, restrain, or punish violations of any of the Anti-trust Laws, the running of the Statute of Limitations in respect of each and every private right of action arising under such laws, and based in whole or in part on any matter complained of in such suit or proceeding, shall be suspended during its pendency. [For other cases, see Limitation of Actions, IV. b. in Digest Sup. Ct. 1908.] Monopoly treble damage suit tential power to monopolize. po 5. Potential power of a corporation to monopolize trade at the time when a competitor is incorporated is not, in itself, a cause of action to the latter under the Sherman Anti-trust Act of July 2, 1890 (26 Stat. at L. 210, chap. 647, Comp. Stat. 1916, § 8829), § 7, for treble damages, but there must be some oppressive use of such power, if not against the plaintiff, at least in the course of defendant's business. [For other cases, see Monopoly, II. a, in Di gest Sup. Ct. 1908.] 6. On the question whether the business failure of the plaintiff in a treble damage suit under the Sherman Anti-trust Act of July 2, 1890 (26 Stat. at L. 209, chap. 647, Comp. Stat. 1916, § 8820), was due to defendant's oppression or to plaintiff's incapacity, the jury may be told that, in estimating the evidence and finding and determining the facts, they may consider the motive which actuated the plaintiff corpo 3. Decrees in a proceeding by the United States government which found defendant guilty under the Sherman Anti-trust Act of July 2, 1890 (26 Stat. at L. 209, chap. 647, Comp. Stat. 1916, § 8820), of an attempt to monopolize, but which were ren-ration if they find it to have been, as de Note. On illegal trusts under modern anti-trust laws-see note to Whitwell v. Continental Tobacco Co. 64 L.R.A. 689. fendant alleged and offered evidence to prove, merely to sell out to the defendant, without any real intent to compete. [For other cases, see Trial, VII. a, in Digest Sup. Ct. 1908.] assignments of error — num 7. An appellate court need not deal specifically with all the details brought up by the dragnet of exceptions and assign ments of error, sixty-nine in number, and occupying more than sixty pages of the record. [For other cases, see Appeal and Error, V. t motive. 8. Statements by third persons as to their reasons for refusing or ceasing to do business with plaintiff are not admissible in evidence in a treble damage suit under the Sherman Anti-trust Act of July 2, 1890 (26 Stat. at L. 209, chap. 647, Comp. Stat. 1916, § 8820), since such statements are offered, not as evidence of the motives of the speakers, but as evidence of the facts recited as furnishing the motives. [For other cases, see Evidence, XI. e, in Digest Sup. Ct. 1908.] [No. 7.] Argued April 30 and May 1, 1917. Restored to docket for reargument June 10, 1918. Reargued November 13, 1918. De אן cided December 9, 1918. N ERROR to the United States Circuit Court of Appeals for the Third Circuit to review a judgment which affirmed a judgment of the District Court for the District of New Jersey in favor of defendants in a treble damage suit under the Sherman Anti-trust Act. Affirmed. See same case below, 139 C. C. A. 319, 223 Fed. 881. The facts are stated in the opinion. Mr. Twyman O. Abbott argued the cause, and, with Mr. Willard U. Taylor, filed a brief for plaintiff in error: The evidence presents a state of facts similar to that presented in Standard Oil Co. v. United States, 221 U. S. 1, 32-40, 55 L. ed. 619, 634-636, 34 L.R.A. (N.S.) 834, 31 Sup. Ct. Rep. 502, Ann. Cas. 1912D, 734. See also Standard Sanitary Mfg. Co. v. United States, 226 U. S. 20, 47, 57 L. ed. 107, 116, 33 Sup. Ct. Rep. 9. 1 and 2 of the Sherman Act, upon the unlawful by each section form a separate theory that the things declared to be cause of action, was erroneous. Swift & Co. v. United States, 196 U. S. 375, 49 L. ed. 518, 25 Sup. Ct. Rep. 276; United States v. Kissel, 218 U. S. 601, 607, 54 L. ed. 1168, 1178, 31 Sup. Ct. Rep. 124; Cilley v. United Shoe Machinery Co. 202 Fed. 598; Strout v. United Shoe Machinery Co. 202 Fed. 602; Corey v. Independent Ice Co. 207 Fed. 463; Monarch Tobacco Works v. American Tobacco Co. 165 Fed. 774; People's Tobacco Co. v. American Tobacco Co. 95 C. C. A. 566, 170 Fed. 396; Occidental Consol. Min. Co. v. Comstock Tunnel Co. 111 Fed. 135. An erroneous instruction is not cured by another instruction correctly stating the law, where the first instruction is not explicitly withdrawn from the jury. Louisville & N. R. Co. v. Johnson, 27 C. C. A. 367, 53 U. S. App. 381, 81 Fed. 679; Wenning v. Teeple, 144 Ind. 189, 41 N. E. 600. Where inconsistent instructions are given, if they cannot be reconciled, the appellant is entitled to rely upon those most favorable to him in aid of his exception. Elterman v. Hyman, 192 N. Y. 117, 127 Am. St. Rep. 862, 84 N. E. 937, 15 Ann. Cas. 819; Johnson v. Blaney, 198 N. Y. 317, 91 N. E. 721. Instructions which, taken as a whole, the character of the evidence necessary are calculated to mislead the jury as to to prove the issue on one side, are erro neous. ed. 707; Bolen-Darnall Coal Co. v. WilRea v. Missouri, 17 Wall. 532, 21 L liams, 90 C. C. A. 481, 164 Fed. 665; Weiss v. Bethlehem Iron Co. 31 C. C. A. 363, 59 U. S. App. 627, 88 Fed. 23, 228 U. S. 233, 57 L. ed. 815, 33 Sup. Ct. 5 Am. Neg. Rep. 537; Sweeney v. Erving, Rep. 416, Ann. Cas. 1914D, 905; Deserant v. Cerillos Coal R. Co. 178 U. S. 409, 44 L. ed. 1127, 20 Sup. Ct. Rep. 967, 20 Mor. Min. Rep. 573; J. H. Sullivan Co. V. Wingerath, 121 C. C. A. 584, 203 Fed. 460. The legal effect of the contract system, as employed by the defendants, was to prevent competition and restrain trade. John D. Park & Sons v. Hartman, 12 L.R.A.(N.S.) 135, 82 C. C. A. 158, 153 Fed. 41; Dr. Miles Medical Co. v. John D. Park & Sons Co. 220 U. S. 373, 55 L. It was unnecessary and improper for ed. 502, 31 Sup. Ct. Rep. 376; United the court to instruct the jury upon a States Teleph. Co. v. Central U. Teleph. supposititious case which was not in Co. 122 C. C. A. 86, 202 Fed. 71; Den-issue. The question was not what would nehy v. McNulta, 41 L.R.A. 609, 30 C. Č. A. 422, 59 U S. App. 264, 86 Fed. 825. The order of the trial court requiring plaintiff to make an election between §§ have been the plaintiff's rights had it been in existence earlier, nor what would have been the rights of some other person who might not have been cognizant of the facts as Mr. Waddell was. The sole question before the court was, What | which adjudged the defendants guilty of are plaintiff's rights now? United States v. Brietling, 20 How. 252, 15 L. ed. 900; Chicago, R. I. & P. R. Co. v. Houston, 95 U. S. 697, 703, 24 L. ed. 542, 544, 7 Am. Neg. Cas. 345. The exercise of a legal right cannot be affected by the motive which controls it. Sullivan v. Collins, 107 Wis. 291, 83 N. W. 310; Connolly v. Union Sewer Pipe Co. 184 U. S. 540, 46 L. ed. 679, 22 Sup. Ct. Rep. 431; Strait v. National Harrow Co. 51 Fed. 819; Northwestern Consol. Mill. Co. v. Callam, 177 Fed. 786; Independent Baking Powder Co. v. Boorman, 130 Fed. 726. The law of competition does not mean a fight of extermination between dealers, in which the victor is entitled to the spoils, but encourages individual traders to engage in fair rivalry, to the end that each may receive a fair profit, and the public be protected from excessive charges. United States v. Union P. R. Co. 226 U. S. 61, 87, 57 L. ed. 124, 133, 33 Sup. Ct. Rep. 53. What the law permits or does not forbid an individual to do, it expressly forbids a combination of individuals doing. Swift & Co. v. United States, 196 U. S. 375, 49 L. ed. 518, 25 Sup. Ct. Rep. 276; United States v. Trans-Missouri Freight Asso. 166 U. S. 290, 322, 41 L. ed. 1007, 1021, 17 Sup. Ct. Rep. 540; Monarch Tobacco Works v. American Tobacco Co. 165 Fed. 780. It is not alone the actual doing of the prohibited thing which the anti-trust acts strike at, but the power to do it. National Cotton Oil Co. v. Texas, 197 U. S. 115, 129, 49 L. ed. 689, 694, 25 Sup. Ct. Rep. 379. The jury were at least entitled to draw their own inferences from the facts presented. Hale v. Hatch & N. Coal Co. 122 C. C. A. 619, 204 Fed. 433. The reasons given by customers for ceasing to do business with plaintiff, as shown by their letters and by their statements to the officers and agents of plaintiff, should have been received. Lawlor v. Loewe, 235 U. S. 522, 59 L. ed. 341, 35 Sup. Ct. Rep. 170; 3 Wigmore, Ev. § 1729 (2); Elmer v. Fessenden, 151 Mass. 361, 5 L.R.A. 724, 22 N. E. 635, 24 N. E. 208; Mutual L. Ins. Co. v. Hillmon, 145 U. S. 285, 295, 36 Led. 707, 710, 12 Sup. Ct. Rep. 909. The decrees in the government case, violation of the Sherman Act upon an almost identical state of facts with those presented in this case, and directed their dissolution, should have been received by the trial court. Portland Gold Min. Co. v. Stratton's Independence, 16 L.R.A. (N.S.) 677, 85 C. C. A. 393, 158 Fed. 63; Anderson v. West Chicago Street R. Co. 200 Ill. 329, 65 N. E. 717; St. Louis Mut. L. Ins. Co. v. Cravens, 69 Mo. 72; 1 Greenl. Ev. 16th ed. § 538; Patterson v. United States, 138 C. C. A. 175, 222 Fed. 629; Van Fleet, Collateral Attack, p. 86; 23 Cyc. 1222, 1223; Coffey v. United States, 116 U. S. 436, 29 L. ed. 684, 6 Sup. Ct. Rep. 437; Last Chance Min. Co. v. Tyler Min. Co. 157 U. S. 683, 691, 39 L. ed. 859, 863, 15 Sup. Ct. Rep. 733, 18 Mor. Min. Rep. 205; United States v. Parker, 120 U. S. 89, 30 L. ed. 601, 7 Sup. Ct. Rep. 454; Nashville, C. & St. L. R. Co. v. United States, 113 U. S. 261, 28 L. ed. 971, 5 Sup. Ct. Rep. 460. Where a part of a conversation is put in evidence by one party, the other party is entitled to explain, vary, or contradict it. Warren Live Stock Co. v. Farr, 73 C. C. A. 340, 142 Fed. 116; Stanley v. Beckham, 82 C. C. A. 304, 153 Fed. 152. Plaintiff was entitled to nominal damages in any event. Thomsen v. Union-Castle Mail S. S. Co. 92 C. C. A. 315, 166 Fed. 251; Pennsylvania Sugar Ref. Co. v. American Sugar Ref. Co. 92 C. C. A. 318, 166 Fed. 260; Lowry v. Tile, M. & G. Asso. 106 Fed. 47. The evidence showed that plaintiff possessed a plant with a minimum capacity of 250,000 kegs and a maximum capacity of 300,000 kegs of powder per annum, and was financed and prepared to operate to full capacity, and that it had the customers ready to purchase its output, but was prevented from supplying such customers and operating to capacity by unlawful acts of defendants. It is, therefore, entitled to recover for loss of profits on powder which it was prepared to manufacture and sell, up to the normal capacity of its plant. 8 Cyc. 653; United States v. Keystone Watch Case Co. 218 Fed. 512; Lawlor v. Loewe, 235 U. S. 522, 59 L. ed. 341, 35 Sup. Ct. Rep. 170; United States v. Kissel, 218 U. S. 601, 54 L. ed. 1168, 31 Sup. Ct. Rep. 124; Pennsylvania Sugar Ref. Co. v. American Sugar Ref. Ca 92 C. C. A. 318, 166 Fed. 254; American Banana Co. v. United Fruit Co. 92 C. C. A. 325, 166 Fed. 264; Dowd v. United Mine Workers, 148 C. C. A. 495, 235 Fed. 7; United States v. Patterson, 59 Fed. 283; United States v. Union P. R. Co. 188 Fed. 117, affirmed in 226 U. S. 61, 57 L. ed. 124, 33 Sup. Ct. Rep. 53; Washington & G. R. Co. v. Harmon (Washington & G. R. Co. v. Tobriner) 147 U. S. 571, 37 L. ed. 284, 13 Sup. Ct. Rep. 557; McDermott v. Severe, 202 U. S. 600, 50 L. ed. 1162, 26 Sup. Ct. Rep. 709; Chesapeake & O. R. Co. v. Carnahan, 241 U. S. 241, 60 L. ed. 979, 36 Sup. Ct. Rep. 594. Whenever a new law intervenes after a judgment, and during the pendency of the controversy in an appellate court, so as to change the rule which governs the rights of the parties, the appellate court must dispose of the case under the law in force when its decision is given, even although to do so requires the reversal of a judgment which was right when rendered. Gulf, C. & S. F. R. Co. v. Dennis, 224 U. S. 506, 56 L. ed. 861, 32 Sup. Ct. Rep. 542; United States v. The Peggy, 1 Cranch, 103, 2 L. ed. 49; Gwin v. United States, 184 U. S. 675, 46 L. ed. 749, 22 Sup. Ct. Rep. 526; Dinsmore v. Southern Exp. Co. 183 U. S. 120, 46 L. ed. 113, 22 Sup. Ct. Rep. 45; Mills v. Green, 159 U. S. 651, 40 L. ed. 293, 16 Sup. Ct. Rep. 132. When the statute declares generally that no action, or no action of a certain class, shall be brought except within a certain limited time after it shall have accrued, the language of the statute would naturally make it apply to past actions as well as to those arising in the future. Sohn v. Waterson, 17 Wall. 596, 599, 21 L. ed. 737, 738. To give the Du Pont Company the right to establish prices to which all other manufacturers must conform is, in effect, to perpetuate its monopolistic control, and is in fact to confirm it as a legal monopoly. Portland Gold Min. Co. v. Stratton's Independence, 16 L.R.A. (N.S.) 677, 85 C. C. A. 393, 158 Fed. 63; Bigelow v. Old Dominion Copper Min. & Smelting Co. 225 U. S. 111, 56 L. ed. 1009, 32 Sup. Ct. Rep. 641, Ann. Cas. 1913E, 875. The offenses described in the 1st section of the Sherman Law, and those described in the 2d section of that law, are different and distinct. Buckeye Powder Co. v. E. I. Du Pont De Nemours Powder Co. 196 Fed. 514; Rice v. Standard Oil Co. 134 Fed. 464. If a declaration is subject to duplicity, it is perfectly proper for the court at the trial, upon motion, to order the pleader to elect as to which cause of action, as stated in his count, he will rely upon. Clancy v. St. Louis Transit Co. 192 Louis Transit Co. 190 Mo. 85, 88 S. W. Mo. 615, 91 S. W. 509; McHugh v. St. R. Co. 196 Mass. 192, 81 N. E. 899. 853; Giacomo v. New York, N. H. & H. The action of a trial court in a matter of this sort involves nothing but disof review in this court. cretion, and therefore is not the subject People v. Briggs, 114 N. Y. 57, 20 N. E. 820. Decrees entered in a former proceeding where the parties were different and where the issues were different are not admissible in evidence in a subsequent proceeding. Davis v. Wood, 1 Wheat. 6, 4 L. ed. 22. business are too remote, speculative, and The expected profits of a commercial uncertain to warrant a judginent for their loss. 49 C. C. A. 244, 111 Fed. 96. Central Coal & Coke Co. v. Hartman, Mr. Justice Holmes delivered the opinion of the court: This is an action brought by the plainunder the Sherman Act, July 2, 1890, tiff in error to recover triple damages chap. 647, § 7, 26 Stat. at L. 209, 210, Comp. Stat. 1916, §§ 8820, 8829. There was a trial that lasted five months, in U. S. 115, 129, 49 L. ed. 689, 694, 25 which the facts were shown at great Sup. Ct. Rep. 379. National Cotton Oil Co. v. Texas, 197 Messrs. William H. Button and Frank S. Katzenbach, Jr., argued the cause, and, with Mr. John P. Laffey, filed a brief for defendants in error: If an error was committed in directing a verdict in favor of the Eastern Dynamite Company and the International Smokeless Powder & Chemical Company, that error was harmless. length, and after a very full and fair charge by the presiding judge the jury found a verdict in favor of the principal defendant, the E. I. Dupont de Nemours Powder Company, on the merits, and for the other two by direction of the court. Elaborate exceptions were taken but they were overruled by the circuit court of appeals, 139 C. C. A. 319, 223 Fed. 881. The first one that we shall deal with |