But superior energy, or enterprise, supply all the buyers of a particular article, and thus leave no market for similar articles manufactured by others. he may not fraudulently or by deceitful representations induce another to withhold from sale his products without being answerable for the injury occasioned by the fraud. Whether negotiations for a purchase never concluded were in fact fraudulent; whether they were commenced and continued solely with the purpose of dishonestly inducing the plaintiff to forego offering his goods until the market had been supplied, and whether such was the consequence of the defendants' fraudulent conduct, were questions of fact which should have been submitted to the jury on the evidence. If answered afiatively, the action was sustainable. In order to maintain an action for fraud it is sufficient to show that the defendant was guilty of deceit, with a design to deprive the plaintiff of some profit or advantage, and to acquire it for himself, whenever loss or damage has resulted from the deceit." Here the demurrer admits that the plaintiffs, relying upon a false representation by the defendant, were thereby induced to enter into the contract of July 30, 1901, by which they placed themselves at its mercy, and that both the representation and contract were resorted to by the defendant as means whereby the plaintiffs should be wrongfully deprived of their rights under their options. When entering into that contract, the defendant had no intention fairly to exercise the election thereby conferred upon it to effect the purchase or sale of phosphate lands and rights under the plaintiffs' options, but had a directly contrary purpose; and in order to effectuate that evil design resorted to the oral or parol undertaking involving a false representation of its then existing intention. As before stated, the plaintiffs in their amended declaration do not proceed on the contract, but for the tort, and it cannot avail the defendant that the false representation cannot be treated as part of the contract. If fraud has been alleged with sufficient particularity, we do not doubt that, whatever may be. its final outcome, the case as made by the declaration discloses justiciable and actionable fraud. On the alleged insufficiency of the declaration, in point of particularity we have but little to say. While the allegations of fraud in some respects are not as formal as may be desirable we regard them as sufficient. It is true that the mere use of adjectives importing fraud or deceit cannot be permitted to supply the place of the essential facts constituting the fraud or deceit relied on. But an impracticable standard of particularity is no more required in allegations of fraud than in an indictment. Mere matter of evidence is not required to be stated. In the amended declaration all the facts constituting the fraud are, though somewhat informally, plainly allęged, and the defendant is fully advised of the case it is called on to meet. We think there was error in sustaining the demurrer to the amended declaration. The judgment below is, therefore, reversed, with costs in this court, and with directions to the court below to enter a judgment overruling the demurrer and requiring the defendant to answer over. JAYNE et al. v. LODER. (Circuit Court of Appeals, Third Circuit. December 3, 1906.) No. 34, March Term, 1906. 1. NEW TRIAL-GROUNDS-SUBMISSION OF INCOMPETENT EVIDENCE OF Damages -REMISSION OF EXCESS OF RECOVERY. Where a plaintiff's claim for damages for a tort was submitted to the jury on incompetent evidence as to certain of the items claimed, and a verdict was returned for plaintiff for less than the total amount claimed, the error cannot be rectified by requiring a remittitur of the amount of the items so erroneously submitted, since the court cannot know whether, or to what extent, such items entered into the verdict, and the only remedy is by the granting of a new trial. [Ed. Note. For cases in point, see Cent. Dig. vol. 37, New Trial, § 328.] 2. MONOPOLIES-SHERMAN ANTI-TRUST ACT-COMBINATION IN RESTRAINT OF INTERSTATE COMMERCE-MANUFACTURERS OF PROPRIETARY MEDICINES. The manufacturer of a proprietary medicine may sell or withhold from selling as he pleases, fixing the prices, and naming the terms at and upon which alone he will do so, and refusing to sell to those who will not comply, and, so far as this is confined to his own goods, and pursued by independent and individual action, it is within his rights; but when two or more combine and agree that neither will sell to any one who cuts the prices of any of the others, this concerted policy, by which it is sought, not only to maintain by each the price of his own medicine, which alone he is interested in or has the right to control, but also the prices on those of all who are thus banded together, is a direct interference with and restraint upon the freedom of trade, and when it affects interstate commerce is clearly a combination and conspiracy in restraint of such trade, in violation of the anti-trust law of July 2, 1890 (26 Stat. 209, c. 647 [U. S. Comp. St. 1901, p. 3200]). [Ed. Note. For cases in point, see Cent. Dig. vol. 35, Monopolies, § 13.] 3. SAME COMBINATION OF ASSOCIATIONS IN DRUG Trade. Three national associations of persons interested in the drug tradethe Proprietors' Association of America, composed of manufacturers of proprietary medicines, the National Wholesale Druggists' Association, and the National Association of Retail Druggists-joined in the adoption of a so-called "tripartite agreement," the purpose of which was to maintain the retail prices of patent or proprietary medicines, and which provided that wholesalers should refrain from selling such medicines at any price to "aggressive cutters" of prices or brokers; an aggressive cutter being defined as a dealer who was so designated by 75 per cent. of the local trade at any given place. Pursuant to such concerted plan, to which all were bound and to carry it into effect, proprietors thereafter sold only at fixed and uniform prices to those wholesalers who agreed to maintain prices, and not to sell to aggressive cutters or brokers, in accordance with a list furnished by a committee of the wholesalers' association, while the list of aggressive cutters was furnished by the secretary of the retailers' association. If a wholesaler violated such agreement, and sold to an aggressive cutter, he was at once reported, and his name added to that list, and notice of the fact sent to all retailers who were members, with a suggestion that they act for the protection of their interest. If he was reinstated, a second notice of that fact was sent. Held, that such concerted plan and action constituted a combination and conspiracy in restraint of interstate commerce, in violation of the anti-trust law of July 2, 1890 (26 Stat. 209. c. 647 [U. S. Comp. St. 1901, p. 3200]). [Ed. Note. For cases in point, see Cent. Dig. vol. 35, Monopolies, § 13.] 4. SAME-ACTION FOR DAMAGES-JOINDER OF MEMBERS OF SEPARATE COMBINATIONS. National associations of manufacturers of proprietary medicines, wholesale druggists and retail druggists, respectively, entered into a tripartite agreement for the purpose of maintaining prices of proprietary medicines, which constituted a combination and conspiracy in restraint of interstate commerce, in violation of the anti-trust law of July 2, 1890 (26 Stat. 209, c. 647 [U. St Comp. St. 1901, p. 3200]), and adopted definite plans and methods for carrying it into effect by preventing retailers who cut prices from obtaining such medicines. Subsequently, to forward the same general purpose, the retailers' association proposed further plans and methods far more drastic, under which such price cutters were prevented from obtaining any druggists' supplies. These plans were not adopted by the other associations, but were assented to by some of their members individually upon direct appeal but not by others. Held, that the two combinations were separate and distinct, and that a party to the first, who did not become a party to the second, was not bound thereby, and could not be joined as a defendant in an action for damages under the statute with other defendants, who were parties only to the second agreement, nor was the latter admissible in evidence against him. In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania. For opinion below, see 142 Fed. 1010. W. Horace Hepburn, Irving P. Wanger, and John G. Johnson, for plaintiffs in error. Henry J. Scott, for defendant in error. Before DALLAS and GRAY, Circuit Judges, and ARCHBALD. District Judge. ARCHBALD, District Judge. This case was an involved and tedious one, and the reluctance of counsel to retry it is not to be wondered at. The suggestion at bar, however, that there should be no reversal unless it could be without a venire, was not put in shape to be acted upon; and as material error has been assigned which cannot be passed by, nothwithstanding the painstaking care with which the case was considered and the correctness with which, in the main, it was disposed of, it must nevertheless go back and be tried over. The error which lies on the surface is the attempt of the court, by a reduction of the verdict, to eliminate items of damage with regard to which there was admittedly no sufficient evidence. The damages claimed by the plaintiff were $34,416.72, made up as follows: Compensation for extra time and labor, covering a period of 4 years, $20,000; 8 per cent. increased cost on $96,000 worth of proprietary medicines purchased, $7,680; extra clerk hire for 4 years, $4,000; interest for 4 years on $10,000 increased capital required, $2,700; loss of profits on sales in June and July, 1904, $36.72. The jury gave a verdict somewhat less than this, for $20,738, which the court, on a rule for a new trial, still further reduced to $10,880.52, to which extent alone it was figured there was evidence to sustain it. Loder v. Jayne (C. C.) 142 Fed. 1010. It is not necessary to follow the steps by which this result was reached, or the reasoning by which it was sought to be justified. It is sufficient to note that the evidence with regard to the first and fourth items of claim was held to be insufficient, and that the item of clerk hire was found to be substantiated to the amount of but $3,164. Putting this and the remaining two items together, the verdict was allowed to stand for the aggregate; all above that being required to be released. The error which was so committed is manifest. The admission of incompetent evidence could not be cured in any such way. The verdict rendered is based on the whole of it, good and bad, and there is no means of knowing by what items the jury were influenced, or how far the items which are now allowed were accepted by them, or entered into their calculations. As it stands, the verdict is judge made; the only virtue in it being that it is within the amount assessed by the jury. But that coincidence does no help it, the amount so found being the result of evidence improperly submitted for their consideration, the only remedy for which was to grant a new trial. Jacoby v. Johnson, 120 Fed. 487, 56 C. C. A. 637. See, also, Watt v. Watt, L. R. App. Cases (1905) 115. 1 More important, however, is the question which is raised, whether the defendants are in any respect liable. The action is for damages, under the act of Congress of July 2, 1890 (26 Stat. 209, c. 647 [U. S. Comp. St. 1901, p. 3200]), commonly known as the "Sherman AntiTrust Law," the defendants being charged with having entered into an unlawful combination injurious to the plaintiff, within its terms. The sections which obtain are given in the margin. The drug trade is the one affected; the plaintiff being a retail dealer doing business in Philadelphia, and the defendants variously engaged as wholesale or retail druggists or manufacturers of patent medicines and pharmaceutical supplies. The plaintiff is the subject of trade animosity because he does not maintain the price of medicines, as the defendants think he ought to, and as they have agreed among themselves that they shall be. He is what is known as an "aggressive cutter," against whom and others similarly actuated the acts complained of are directed. That which is charged to be a combination in violation of the act consists primarily in what is known as the "Tripartite Plan," so called "1. Section 1. Every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade, or commerce among the several states or with foreign nation's, is hereby declared to be illegal. Every person who shall make any such contract or engage in such combination or conspiracy shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding five thousand dollars or by imprisonment not exceeding one year or by both said punishments, in the discretion of the court. "Sec. 2. Every person who shall monopolize or attempt to monopolize or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several states or with foreign nations, shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments in the discretion of the court." "Sec. 7. Any person who shall be Injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by this act may sue therefor in any Circuit Court of the United States in the district in which the defendant resides, or is found, without respect to the amount in controversy and shall recover threefold the damages by him sustained, and the costs of suit, including a reasonable attorney's fee." 149 FEDERAL REPORTER. because of its being entered into by the three affiliated associations in the drug trade-the Proprietary Association of America, the National Wholesale Druggists' Association, and the National Association of Retail Druggists of one or the other of which the defendants are members. The purpose was to maintain the retail prices of patent or proprietary medicines by combined action, which was recognized as necessary to accomplish it. These medicines, being compounded according to secret formulas by those who originate them, are made popular by extensive advertising, and are supposed to be retailed to the consumer at uniform prices, fixed by the proprietors and named on the package. In some parts of the country this is carried out, but in others, and particularly in the large cities, where competition is keen, there has for a long time been a cutting of prices by the retailer, which has reacted on the jobber or wholesaler, as well as the proprietary, demoralizing all branches of the trade. This condition was the subject of extended discussion and animadversion for a number of years. at various meetings of the several associations involved; different means for remedying it being proposed. The plan finally formulated was adopted upon an overture from the retailers at the annual meeting of the wholesalers at Chicago in September, 1900, in which the proprietors as associate members participated. It seems to have had its inception in a resolution passed at the preceding annual meeting of the wholesalers, in conformity to which the chairman of the proprietary committee and the chairman of the executive committee of the retailers sent out in March, 1900, a confidential circular, in the joint names of the two associations, to various patent medicine proprietors, urging them for the future to confine their best price sales to a uniform list of jobbers to be selected as wholesale agents. A number of prominent proprietors, who had already agreed to the proposed policy, was given, and in order to make it effective it was urged that each should send out to his wholesale distributing agents a printed price list, giving the regular rebates on goods when ordered in certain quantities, to be restricted, however, to those who did not divide quantities with others, or quote or sell these preparations, either directly or indirectly, or permit them to be disposed of in any way, at less than the prices stated. Favorable responses were received to these circulars, but at the suggestion of members of the retail trade, as well as in pursuance of views expressed by a large percentage of the jobbers, it was decided that the selection of the list of wholesale agents, to whom alone best price sales should be made, should be subject to certain conditions: (1) That jobbers through their salesmen should refrain from running down proprietary goods, and should sell whatever was called for by the customer without reference to any particular article happening to pay a higher profit; (2) that they ask no further discounts than already 'allowed; (3) that each jobber discontinue his so-called nonsecret department (referring to substitute preparations offered in place of proprietary medicines called for); and (4) that they refrain from selling proprietary preparations at any price, either directly or indirectly, to aggressive cutters or brokers; an aggressive cutter being defined as a dealer who was so designated by 75 per cent. of the local trade at any given place. The plan so recommended was adopted, not only, as already |