Evenson v. Spaulding, 150 F. 517

150 F. 517 | 9th Cir. | 1907

GILBERT, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

It is earnestly contended that the court had no jurisdiction of the cause, for the reason that it did not appear from the bill that the requisite amount in controversy was involved. As we read the allegation of the amount in controversy, it is that the value of the matter in dispute exceeds $25,000, and that, in addition thereto, the appellees have been injured by the acts of the appellants in excess of the sum of $25,000. The statement of the amount involved is made under oath. It is not denied either by plea, answer, or by any affidavit. It is true that the bill does not set up the value of the appellees’ business, or specifically allege the extent to which it will be damaged by the acts of the appellants, but it is clear from the averments of the bill that the matter in dispute, the value of which in the complaint is laid at more than $25,000, is the right of the appellees to conduct their business in the state of Washington. The bill sets forth the damages which have, been sustained by the appellees .within the few weeks prior to the commencement of the suit and presents facts, showing the extent of their business in the state of Washington, which has been interfered with, and which will be interfered with in the future unless protected by injunction. A case in point is Butchers’ & Drovers’ Stockyards Co. v. Louisville & N. R. Co., 67 Fed. 35, 14 C. C. A. 290, in which Judge Taft, speaking for the Circuit Court of Appeals, said:

“The averment of the bill is that the injury and damage done to its business by the refusal of the railroad company to afford to it such transportation and shipping facilities is irreparable, and largely exceeds the amount of the sum of $2,000. The damage done by the refusal is to be estimated by the value of the right denied, and therefore the allegation that the damage largely exceeds $2,000 is inferentially a statement that the value of the right denied is largely in excess of $2,000. Even if this averment refers, as claimed by counsel, to damages sustained by complainant before the filing of the bill, it gives rise to the necessary implication that the subsequent permanent injury, unless enjoined, will exceed in pecuniary amount that already suffered because the past damages only covered a period between the demand and the filing of the bill.”

Other cases in point are Pennsylvania Co. v. Bay et al. (C. C.) 138 Fed. 203; Board of Trade of the City of Chicago v. Cella Com. Co. (C. C. A.) 145 Fed. 28.

The affidavits sufficiently sustained the allegations of the hill and the conclusion of the court below, and showed that the appellants were pursuing a systematic course of interference with the business of the appellees in peddling buggies and wagons in the state of Washington; that as an agent of the appellees would go through the country taking in his train a number of buggies or wagons, the agents of the appellants would follow, generally in pairs in order the better to watch, harass and dog the steps of the peddler. Wherever the peddler would stop, the followers stopped; wherever he lodged, they lodged. As he started out in the morning, they were close in pursuit. Whenever he engaged in conversation with a customer, they would interrupt the conversation and advise the customer not to buy, and “to prevent trouble,” the customer would often refuse to, buy. The followers in nearly every instance had no vehicles of their own to offer. Their declared purpose was to prevent the appellees’ agents from making sales. The result was frequent personal altercations and in one instance a fist fight. The appellees’ agents were often intimidated. Some of the followers carried rifles, some of them had been made deputy .sheriffs, and, in one instance, ¡one of the appellees’ agents was arrested by such a sheriff under the provision of a law which had been declared void by the superior courts of the state of Washington. The proof showed a practical destruction of the business of the appellees in the state of Washington, and that the purpose of the appellants, and it is not by them anywhere denied, was to continue in the course of action complained of. It is contended on behalf of the appellants that their acts were but the acts of competitors in business, and that they had the legal right to go upon the highways and engage in conversation with any one; and, in general, to do the acts which are complained of. This contention cannot be sustained. The association was a combination of men engaged in various lines of business. It had no property of its own save the money that was raised for the purpose of interfering with the appellees. It had not, nor had the majority of its members, any buggies or wagons for sale. It did not, as a general thing, send out such merchandise upon the road to offer it in competition with the merchandise of the appellees. Its sole object and purpose, so far as disclosed by this record, was to break up the business of the appellees in the state of Washington.

The appellants contend that their combination in itself was not unlawful, that no unlawful means were used in furtherance of it and that the damage to the appellees, if any they sustained, was the natural and unavoidable result of competition, incident to. the carrying on of the appellants’ business in a lawful manner. It is to he admitted that the appellees have no right to be protected against competition, and that the appellants have the right to push any lawful' trádé by all lawful pleasures and to. keep and maintain the benefit thereof, and to exclude others.'from participation in it if they can. But, while the appellees have no right, to. protection against competition,. they have the right to protection against wanton and malicious interference and annoyance. It is true that the acts of interference complained of in the bill, and proved; by the affidavits, were, for the most part committed upon the public .highway, but the particular spot upon the highway or elsewhere where the appellees were offering their goods for sale was, for the time being, their place of business. We do not say that they had any exclusive right to be there, or that the appellants had not the right to go upon the same highway with goods and to follow the appellees’ goods with like goods of their own, if they had such, and offer the same in competition with the appellees and to the same customers. But that is not what was done. The appellants’ agents took with them no goods, and generally they offered none in competition. Their sole purpose appears to have been to interfere with and prevent sales by the appellees. This they accomplished by breaking in upon conversations, interrupting sales, and making false representations as to the nature of the appellees’ goods, and the manner in which they treated the pur-. chasers thereof and other offensive acts. Their purpose was not to sell .goods of their own, and thereby interfere with sales by the appellees, Tut it was, by pursuing a policy of molestation, to drive the appellees out of business and out of the country. The right of competition furnishes no justification for such acts. This is in accordance with the decided weight of authority. State v. Huegin (Wis.) 85 N. W. 1046, 62 L. R. A. 700; Jackson v. Stanfield (Ind. Sup.) 36 N. E. 345, 23 L. R. A. 588; Van Horn v. Van Horn (N. J. Err. & App.) 28 Atl. 669; Ferd. Heim Brewing Co. v. Belinder (Mo. App.) 71 S. W. 691; Ertz v. Exchange Co. (Minn.) 81 N. W. 737, 48 L. R. A. 90, 79 Am. St. Rep. 433; Graham v. St. Charles St. R. Co. (La.) 16 South. 806, 27 L. R. A. 416, 49 Am. St. Rep. 366; Hopkins v. Oxley Stave Co., 83 Fed. 912, 28 C. C. A. 99; Standard Oil Co. v. Doyle (Ky.) 82 S. W. 271.

It is assigned as error that the court held that the appellees were entitled to an in junción as against members of the Inland Empire Implement and Hardware Dealers’ Association, who were not served, and made no appearance in the suit, the association being a voluntary association not incorporated so that it could be made a party defendant. There is an exception to the rule that such an association may not be made a defendant by suit against or service upon its officers, and that is the exception contemplated by equity rule 48, which provides that when the parties on either side are very numerous and cannot, without manifest inconvenience and oppressive delays be all brought before it, the court in its discretion, may dispense with making all of them parties, and may proceed in the suit, having sufficient parties before.it to represent all the diverse interests. The bill brings the case within the exception by alleging that the membership of the association is very large, and -that -the appellees cannot ascertain the names of more than a few thereof. The record shows that the parties before the court were E. E. Lucas, the president of the association, and Edward W. Evenson, the secretary, treasurer, and active manager thereof, and, in addition to these facts, it appears that the association has under its name made a general appearance in the suit. Upon the filing of the appellants” affidavits, the membership of the association was disclosed, and the appellees thereupon offered during the hearing an amendment, adding the names of many other members of the association, and embodying the names of the three members who composed what was called the “Peddlers’ Committee.” The peddlers’ committee, it appears, was formed at a meeting of the association for the purpose of forming “some plan to compete with the peddlers.” Under the plan which was adopted, each resident dealer in ranges or vehicles who belonged to the association was to be asked to pay, not into the treasury of the Peddlers’ Association, but into the treasury of the Inland Empire Implement and Hardware Dealers’ Association the sum of $20, and all manufacturers and jobbers in ranges and vehicles in the territory, or who* solicited trade therein, were to be asked to contribute $100. .The money so collected was to be used to pay expenses in offering such competition to peddlers as would enable resident dealers to hold their- trade, and the adopted plan proceeded to specify the method of carrying on that competition. It appeared in the affidavit of Evenson that the branch of the defendant association known as the “Peddlers’ Association” was organized by the general association. These facts show that the Peddlers’ Association was the creature of the larger association and the instrumentality which it used to carry out its general purposes. The lower court so found, and we discover no error in that conclusion..

It is contended that there was error in permitting the appellees to make amendments to their bill. The first amendment was filed during die hearing, and in response to the objection that the bill did. not plainly allege that the appellants threatened to continue their unlawful acts. This was an amendment in matter of form, and permissible under equity rule 28. The requirements of the rule were complied with. The second amendment was also filed during the hearing, and after the appellants had attacked the bill, on the ground that the Inland’ Empire Implement and Hardware Dealers’ Association was a voluntary association, and that no sufficient number of its members had been made parties defendant to subject it to the jurisdiction of the court. To allow or reject this amendment was discretionary with the court, and its ruling is not reviewable here. Chapman v. Barney, 129 U. S. 677, 9 Sup. Ct. 426, 32 L. Ed. 800. It is contended that there is in the bill a misjoinder of causes of suit. No such objection to the bill was presented to the court below, nor is there an assignment of error based on such alleged misj-oinder. The contention therefore cannot be considered here.

Complaint is made that the injunction goes further than the court was warranted in going, in that it enjoins the appellants from approaching or speaking to any actual or supposed customer of the appellees, so long as the latter’s agents are personally present and engaged in selling or negotiating the sale of any buggy or wagon, for the purpose of defeating such sale. This part of the injunction, it may be conceded, trenches upon delicate ground. For the present we are not prepared to say that, in so ordering, the court below Was not acting within its discretion, or that substantial rights of the appellants were thereby invaded. The appellees had the right to offer their goods for sale, and to discuss the merits thereof, and the terms of sale. The appellants had no, right to prevent them from doing this. If to in terfere in conversations was tantamount to preventing the appellees’ agents from conducting their business, it was an unwarranted interference.

The order for an injunction pendente lite is affirmed.