*1 877 JUICES, INC., v. AMERICAN CAN COMPANY BRUCE’S (2nd) Term, 22 So. June 461 1944 October 1944 En Banc Rehearing granted April rehearing Further denied June Cody Fowler and Shackleford, Shannon, Farrior ap- for pellant.

(cid:127) John Allison, M. Harry B. and Whitaker, Terrell Whitaker, Terrell, <& for appellee.

THOMAS, J.: a

An action on notes culminated in promissory judgment . for the arid the defendant plaintiff, appealed. question presented

Inasmuch as no here determination declaration, im- requires analysis shall proceed we mediately give condensation of which appear number, rise to have four questions, decide. must The first set out that notes were given for cans plea pur- from maker and payee chased that the transaction was unlawful because the former commerce engaged “while states, directly indirectly several discriminated among cans, different . . price purchasers between . of like . grade . sold for quality, use resale within the States . . .” United the effect substantially which “was lessen or tend to competition monopoly create . . . and to injure, destroy and prevent competition with certain custom- (a) ers defendant paragraph Code____” 13 of Title United States The second contained plea allegations the dis- cans, crimination was “in favor purchasers of certain .of defendant, against a competitor of such purchasers, *2 by in commerce bought for resale interstate cans were which closing . . . for equipment to such the purchasers furnishing rent charge cost or . . . while charging cans . . . without defendant, the in violation furnished to said equipment (e)” and the same section title of the code. paragraph In it was averred that there was discrimina- plea the third or' . . over by purchasers discounts “to . tion the allowance . and discounts . . . available at the time to . . above . similarly respect the defendant and others situated in of the cans, grade, sale of . . . like and in viola- quality quantity, tion of Section 13a” of the same of the code. This plea title is amplified the statements that two in the companies same of canning business in their juices Tampa selling throughout country the products competitors as of defendant discriminatory allowed “large were discount [5%]” not available it and were relieved of delivery charges which defendant was required companies that three other pay; in selling in products competition, evidently canning but not State, were likewise favored. In the fourth plea it that cans charged plaintiff sold 13a, in Texas for less than Florida in violation of Section supra. not, brief that we observed need appellant controversy, “any make reference

in our consideration set forth in the record inasmuch testimony to the voluminous defense of illegality took the . . . the position as the trial court “correctly gist not available” and stated the . . was unenforceability illegality as the notes defenses” they were executed the transaction in which “because [was] Act, Robinson-Patman because violated the unlawful U.S.C.A., concluded 13.” The court Title fed- could not be for the reason presented defenses remedy, available and trans- prescribe eral statutes of these laws are “Malum in se actions violation only.” Malum prohibita of the circuit challenges ruling

The initial question “the any remedy the defendant judge that secured to Clayton Act Sherman Anti-Trust Law as amended em- Act” could not be amended the Robinson-Patman notes, on the State Court a suit as a defense ployed relief for affirmative in an action asserted only but could third, second, ques- and fourth In the tribunal. in a federal consideration “Where the tions, asked: respectively, appellant illegal, a transaction which is dependent upon of notes theory that upon had recovery nevertheless be a valid con- contract based constitute distinct *3 act, of void and unenforceable?” travention the dis- apparent out here that there is pointed It should be we have pleas and the crepancy question betwen the first Acts of the Congress, for the former relates to three digested, i.e., Rob- Clayton and and the Sherman Anti-Trust Law the Acts, latter refers to Section 13a inson-Patman but the (a) (e) 15, Title and and of Section U.S.C.A. paragraphs it, As we the cited in the are of parts understand laws Act, Clayton Act as amended the Robinson-Patman the ' and not of the Sherman Anti-Trust Law. parts Bearing judge, mind observation of the trial ,of accurate, ceded nature appellant concerning to be defenses, need- the statement of the about the appellant lessness of reference and. character any testimony, to of the questions we conclude that posed, questions (1) two, i.e., actually must decide are whether remedies fur- Clayton nished Acts become Robinson-Patman defenses in a promissory purchase suit on notes to cover the price articles in the have been sold alleged pleas to (2) laws, violation of those the sale and the notes our, ,disr constituted transactions. shall confine. separate We cussion accordingly. to that expressly repeat wish

To avoid confusion we involved, 13a are thus three of the code portions (a) (e) brand as- un- They 13. of Section paragraphs re- in sales price,' differentials lawful transactions like result discrimination between and the bate, discount to create and stifle monopolies competi- and tend purchasers tion. reference with a a deci challenge their open

Appellants rendered in the United States Court Supreme sion of National Harrow Company, and Sons Bement had been Ed. 1058. Action instituted 46 L. Ct. U.S. damages arising from breach Court York State New in the farm and the implements, plaintiff for the sale contract ques the sole federal The court observed that had recovered. from an of the court of involved, opinion appeal in the tion validity was the of the con judgment, affirming appeals Congress designed protect Act of in view of the tracts (Sherman Law). Anti-Trust restraint unlawful against trade Attorney only the had taken the that position plaintiff bring could an action under the States United General (7) statute, one section of it person that under except in a federal court. Reaction himself sue might aggrieved “Assuming this contention was: the court regards any brought so far as suit right Act, anyone sued we are nevertheless of originated the state contract court] [This.action is a violation of the Act of may set defense that up and, so, if found to be constitute a Congress, that fact will *4 to the action.” this decision was made good defense So when in definitely it was held that the defendant in a suit a state against on a the Anti-Trust Law offending court contract n advantage infringement by plea. could take principle again recognized by As late as 1942 this in Supreme Company Court when Sola Electric United States 173, 172, Jefferson Electric 317 U. S. 63 Ct. 87 Company, S. 165, Mr. Chief Justice STONE wrote: “This L. Ed. Court sued a anyone upon that contract set as a up declared in defense that it is violation of the Sherman Act. E. Bement & v. National He. added had Sons Harrow Co.” that been Voight decided “in Continental Wall Co. v. Louis Paper Co., 227, 486, 280, 212 L. U. S. 53 Ed. 29 S. Ct. a Sons that vendee of from an in goods purchased illegal combination pursuance illegal an both in violation of the agreement, Act, in defense to a plead illegality Sherman suit for can the purchase price.” York Supreme Court of in case of Remington New

Rand v. Machines Corporation, International Business (2nd) 515, N. Y. referred to the decision in the Bement case, and announced rule a in a supra, litigant state n rely court could upon the federal statute for affirmative relief, a but could resort to it as defense an action on a contract executed law. While contravention the de- we cisions have so far cited dealt with Sherman Anti- Law, Trust York Supreme Court New reiterated the (2nd) Jacobson, 200, rule in Stock and Sons v. 18 N.Y.S. where defense was predicated the Robinson-Patman Act.

The same general Paris principle applied in Pratt v. Gaslight Coke 42 L. Ed. Company, S.U.

when it was held that jurisdiction of a state court was not affected invalidity issue as an patent inci defense, dent ato although that could have no court exercised jurisdiction had the matter been presented support re covery.

The appellee insists there are be- vital-distinctions tween the Sherman Anti-Trust one hand Law Clayton and Robinson-Patman Acts on the other that preclude application same rule relative to defenses interposed under both. “contracts, At the outset he contends that spiracies and combinations” under the former inherently were law, illegal at common while “discriminations ser- price, vices, facilities, discounts, rebates, etc., were at not unlawful common law and . . . became so Federal laws for time by first adoption' turning the” latter. to 41 Upon C. J. page statement, as authority for the first find the contracts, combinations, “All language: or agree- ments which or create tend to create a are unlawful monopoly at common yet law. . . the words are identical underscored with the ones appearing one supra, under which *5 filed. for decision in

Among the text is our authorities 19, Stewart, al., Culver, Fla. et v. Stearns 48 So. invalidity “The or validity agree- written: where was to or to in tends restrain trade operation monopoly ment that it is determined of whether is or general is element public. injurious any not If injurious perceptible to any to degree portion public, agree- considerable contrary, public ment to policy, is will be enforced.” italics.) (again supplied we have between the phraseology difference

We do not find such as subsequent two acts Law and Anti-Trust the Sherman em- violation of the one could be ruling justify would defense,' of the others could not. a violation as ployed is this character borne laws of design real When the Culver, any Stewart, supra, differ- mind, al. Stearns et v. obscure. quite other two becomes ence the one between of the defenses availability prop- is view that It our Jacobson, supra. and Sons v. Stock erly decided in distinction, derives appellee urges, so the principal But the dissimilarity used because in the language in the from the “Every is the statement: Anti-Trust Law Sherman [such] be illegal,” . . . declared to while Section contract is 13a, any merely provides: “It shall be unlawful for supra, to, in, . or assist transaction . . party ... be a person argued .” So is the former discriminates discrimina- latter illegal; the contract itself too, Here, fail find a contrast are such tions unlawful. contrary as to rulings as would furnish sound reason for relevancy of the defenses. Connolly stresses the Union Sewer

Appellee U. 22 Ct. Ed. Pipe Company, 184 S. L. for his believe authority position, study but we careful will reveal an essential difference between factual situation case, Briefly, according there and here. to the cited pur recovery they chasers of pipe attempted *6 here is not present there obligation alleged true, notes, if the amount where purchase-price and the claimed transgression affected reason of the enlarged notes were for which Company Wallpaper See Continental discrimination. Company, supra. Sons Voight the courts will appears

From the authorities a contract which' enforcement of aid toward the lend their reason If for that of the law. the violation will further de- he and the where recovery plaintiff be denied the' will in contravention the contract parties fendant both be victim, act, but a a defendant not a why party, would us. reason occurs to same ? No advantage be refused the judging them pleas, the decision that We reach form, substance, to their criticism as irrespective their have not arriving and in at this view we appropriate, were on promissory fact that the action was based overlooked That the suit of the contract for sale itself. notes instead contract, evi- notes which upon not based upon Was not, does our denced due under the contract amounts Jamison, 131 U. Embrey v. alter the situation. opinion, Ct. 33 L. Ed. 172. 9 S. ques- for further discussion of the necessity

No appears must, however, We analyzed beginning. tions we judge be followed the trial procedure decide what should appellants our We have said that judgment. to effectuate transcript. to the referring remarked the uselessness of between counsel on There is sharp difference controversy on the matter the court determined whether ap- contention of the facts as well as the law. this Despite testimony. alluded to the repeatedly pellant, appellee heard being recited that the matter was judge He entry judgment.” adjudged final “application recover, due on the in detail the amounts stating plaintiff fees attorney’s notes for and interest and also for principal had entered his “order A beforehand he days costs. few conference,” with concluding trial pleadings pre It is prepare judgment. counsel for direction to from the recitals this order largely glean that we the extent his consideration. *7 no about the dispute plaintiff’s having proved There is case, need judge thought its so we decide whether the recov- testimony of the ery justified despite support pleas, if they or was warranted even the testi- being inappropriate, account, mony being were taken into it insufficient. delivery, the defense of conditional from which Aside abandoned, “As the defense of illegality been he observed: to of consideration or of the notes the unlawfulness under Fed- eral ... I opinion Statutes am of the that under decisions of Supreme Court the United States such defense can- not be in a suit to collect the mer- purchase price offered chandise sold and delivered by and affected provisions that act. The act itself remedies avail- prescribes only able to persons affected its and no other method continued, of relief is to be had.” He already have quoted, “The contract of sale not under these decisions Malum in se only.” but Malum prohibita Then he concluded: am, “I therefore, that all questions fact law which the rights of the are settled in parties depend Sutton, favor of the Hillsborough County 2nd, 8 Southern Fla. this Court should enter [150 601] judgment in its behalf on the pleadings and disclosed facts (Italics record this cause.” supplied.) In the cited case was posed the whether final question judgment could be entered at the conclusion of a pre-trial conference, the procedure here. followed It to have appears been the ruling such method was material proper where facts were not controverted. court said: “If the con- ference progresses to the point all eliminating questions fact then the may give court judgment according to law on the facts rule, before him.” In then, light this must judge have felt that he a judgment should enter because of a where questions situation of fact had been eliminated question of law remained for his determination. Such a condition obtained so far as the plaintiff’s case was concerned, but there is much in the record to indicate that issues of fact were not if testimony absent relative to Words, considered. In pleas were to be other the moment the raised are issues facts contemplated disputed readily We is appear. apparent appellee’s this from think brief,' much space where devoted to evidence. For illustration, we find it statement that it was “within the Parks, province of Judge testimony who heard the witness, and saw the of this his demeanor testi- apply mony uno, etc., rule: ‘Falsus in falsus omnibus/” referring to a means testi- judged the of a mony witness whose statements are alternately true and untrue.

It is evident to us that the trial court thought proper judgment enter the pursuant to pre-trial conference on theory the facts supporting the declaration were not *8 disputed that conflicting testimony the pleas would preclude not a such course inasmuch as the im- pleas being proper, the evidence relevant to them could be ignored. As we have a contrary reached about pertinence view defenses, it seems fitting the cause to be reversed that the issues raised stand; pleas now they or are eventu- settled, ally may be tried. is, therefore, judgment reversed with directions for

further proceedings conformable to- this opinion.

Reversed.

BROWN, CHAPMAN, SEBRING, JJ., ADAMS and con- cur.

BUFORD, J., TERRELL, J., C. dissent.

BUFORD, J., dissenting: C.

I I disent because think the sales contract consti- plea free of discrimination therefore part tuted were of no pleas avail. PER CURIAM: rehearing arguments

On after and briefs sub- granted mitted, we are attempted defense be facts interposed was available submitted and, therefore, evidence to judgment the court below should affirmed.

886 ordered.

It so SEBRING, JJ., TERRELL, BROWN, BUFORD cur. ADAMS, JJ.,

CHAPMAN, J., dissent. THOMAS and C. J., SEBRING, concurring:

(cid:127) I have come to the Upon reconsideration matter subject legally matter of the is not conclusion that in the state courts a common law available as defense I on the notes involved. therefore concur promissory suit should judgment the conclusion that the Court below be affirmed. OPINION:

DISSENTING opinion. original adhere to the Upon rehearing granted ADAMS, JJ., CHAPMAN, J., concur. THOMAS and C. A. DAINO v. O. DAINO J. GLORIA (2nd) Term, January 1945 22 So. Bn Banc March Rehearing granted April *9 Ferrell, for appellant. Redfearn Pruitt, and Foster, William J. Parker & appellee. PER CURIAM: Russ, authority

Affirmed upon of Russ v. 150 Fla. 2nd So. 279.

TERRELL, BROWN, SEBRING, JJ., THOMAS .and cur.

CHAPMAN, ADAMS, J., JJ., C. dissent. BUFORD notes is founded on a which and “Is a contract sideration?” declared it is not though expressly void even penal of a statute n void the evil necessary and “Was by the statute?” malum statute be by the anti-trust prohibited to be intended contract, in direct con- render the in se in order to

Notes

defeat notes had to evidence the seller signed purchase price, because had combined other dealers in restraint trade. The with court found that the defendants had no “purchases necessary or alleged illegal direct connection with the com bination,” and that the defenses were not reason tenable. We think the criticism of disconnection between the