*1 possession acquired had interest an contract, part land an unrecorded payment being the consideration of a mortgage. Later owner of true property who no interest in the mort- had gage, money judgment obtained aban- proceed- doning an ejectment the land ing and caused an execution to be issued levied on satisfaction. person court possession decided that faith an paying mort- owner superior gage equitable had an lien execution claimant. In Weisberger Wisner, case v.
55 Mich. 21 N.W. de the court occupancy occupant cided of land when has recorded an deeds to undivided inter right est in it and a re contract
maining
interest
will
notice of
his
rights
protect
the land from lien
mortgage
later
date than the deeds
except to
extent
mortgagor.
re
of the” interest
maining
In the
case
Brady
Sloman,
156 Mich.
120 N.W.
795, 796,
possession
the court decided that
occupancy
every
constitute notice to
subsequent purchaser and .encumbrancer
rights
occupants,
and title of such
possession
though
by tenants.
possession
said: “A grantee
court
world,
of land has a title
all the
whether his deed is recorded or not.”
Compare
Smith,
Luke v.
33. S.Ct.
with cost.
GOODYEAR TIRE & RUBBER CO. v. FEDERAL TRADE COMMISSION.
No. 7369. Appeals,
Circuit Court Sixth Circuit. Feb.
621
ceiving
decision
ourselves bound
reasoning
Ham-
and
in United States v.
466,
etc.,
burg-Amerikanische,
239
36
U.S.
212,
387,
analogy
60
and
S.Ct.
L.Ed.
HAMILTON,
dissent-
Judge,
Circuit
present
those there
circumstances to
ing.
adjudicated
granted,
the relief there
anc}
moot,
controversy
held the
set aside the
order,
case,
and remanded
without
but
complaint
direction
dismiss
supple-
prejudice
filing of
without
to the
a
complaint
amended law.
mental
under the
Goodyear Tire & Rubber
Federal
Co. v.
Commission,
Cir.,
Trade
6
62S he permitted by great report too In Bill statute is Representatives, House of House so related. Judi- ciary pri- Committee made it clear that its Primary necessari- consideration must mary purpose practice of was to reach the ly given meaning of 2 of destroying sections certain Clayton Act. will be observed that lowering below and there- cost proviso, sec- nothing contained in the expense recouping after such losses at prevent public general monopoly had (1) purchasers of commodities been achieved. The Senate Committee grade, account of differences “on quality, adopted report (Cong.Record, Vol. commodity 51, p. 15857). pointed In the House it *4 sold,” only (2) due allow- or makes “that out of bill charge Mr. Webb in the selling of ance for difference in the cost (ibid, p. 9072), practice giving of that the (3) transportation,” or or “discrimination cheaper purchaser buys who rate to the price in the or communi- in same different necessity wholesale lots a business competi- good faith meet ties made not the Committee did feel warranted exception of the the tion.” With third trying object- to disturb. When it was concerned, proviso we and as are not great ed that this would allow mail order exception the of the second there buy quantities houses to enormous dispute. there no It is conceded that the great advantages they to retain had up- may based be a discrimination in had, always suggested it was a sec- quantity, Commission would but the on evil, tion be drawn but no to correct that exception as the a limitation read second incorporated such amendment was no see qualification of first. We the 1914, Clayton passed Act. The Act was the warrant for such construction and present began investigation but until the proviso as as the structure of well the Commission never it had the assumed repel history it. of the section power prohibit price discrimination on quantity account when unrelated to dif- exceptions pro The three ferences in cost. In 1928 Senate Resolu- mutually seem to exclusive. viso would be 224 first, directed the Commission to un- qualifies If second and limits the inquiry an store dertake into the chain exception “quantity” in the first word system marketing Its distribution. redundant. Mindful of appears to be 14, report final filed December 1934 in debate are rule that statements 4, (Senate Congress, Document No. 74th doubtful aid construction session). first In it the Commission indi- statute, yet agree there common very cated that lower were a leg throughout ment the consideration substantial if not the chief factor in the may be agreement properly islation such merchandising, growth of chain store purpose. determining its considered in specifically discussing Clayton 2 § Raladam Trade Federal Co., (p. 97), Act said: unless the “That 650, 587, 643, 51 75 283 S.Ct. permitted account of’ ‘on 1191; Humphrey’s L.Ed. 79 A.L.R. quantity ‘only shall make due allowance’ States, v. United Executor therefore, Clayton may 2 of Act § his L.Ed. 1611. The S.Ct. readily by making evaded small differ- Act, be tory of 2 of both § quantity large for the occasion ence subsequent passage, after its fore price. is to difference in If the section Act, Robinson-Patman amendment any vitality inter- have it must either be phrase dealing with differences so that the preted effect or it and enforced to that reads, nothing herein quantity “That should be amended to that effect.” prevent differentials which contained shall only report year for differences due allowance for end- make In its annual manufacture, sale, 30, 1935,' deliv Commission recom- in the cost Jitne resulting ery differing forbidding from the methods mended of a law the enactment unfairly quantities in which such commodities discriminate un- a seller “to delivered,” pur- justly sold or between different are to greater persuasive clearly usual define point than chasers” or a law “to else only original purpose but the discrimination in intended to ness to its infirmities, Quite subsequently promptly bills were con- discovered forbidden.” upon currently light of matured views the neces into the House introduced pro- Senate, regulation. of which sity of further eliminated the each viso of lan- the old and substituted the substantial evidence that § discrimina- guage already we two have recited. The tions there involved were not in faith style bills were consolidated under the made on quanti- differences in Bill, ty, Robinson-Patman and as consoli- and that the contention that were June, 1936, dated enacted into law with so made was an afterthought first con- 2 unchanged. amended reporting In ceived when the case § went to trial. There bill, Judiciary (Re- the House Committee no such factual situation here. port 2287, session), Congress, 74th second The Commission’s counsel insist that “ * * * Clay- ‘present said: § though wrong the Commission is places upon ton Act dif- no limit construction it found a fact * * * ferentials kind. This $12,000,000 the excess differential of * * * importance' great is of tires sold to Sears over the to in also limits use of dependent dealers on a similar volume of sphere cost differentials to the of actual business was not on account of * * * ex- differences. In the above this finding is based substan emption phrase ‘which due makes tial evidence and so conclusive us. present allowance’ is carried from over requires analysis. contention We coupled but with the remainder *5 say at once it not that is a sufficient an clause, quanti- the is here extended to limit say, swer petitioner, to as does the that ty differentials of to differences in cost Mr. of Goodyear Company Litchfield the manufacture, delivery provided sale and testified that such' differential was in report said 2.” of in sub-section In the faith made quantity on account of after Jbdiciary the (1502), Senate Committee it survey detailed consideration of the said, present was “The of weakness § report experts, of testimony and his stands principally lies (1) the fact it that unimpeached, frequently as wé have places upon permis- no limit differentials said, persuasiveness the of evidence quanti- sible on account of differences in upon destroyed by analysis occasion be ” * * * ty. though uncontroverted. We to defer the rule when that urged finding the that ex that meaning the Congress of an of Act is cess was on of not account plain on its face there is no occasion to re facts, quantity supported by evidentiary reports sort to the of Congressional Com vary including the fact that did not it, concerning mittees Standard Fashion according of varying the the volume Co., Magrane-Houston Co. v. business, quantity Sears that no there was 42 S.Ct. it seems contracts,- commitment in the Sears’ clear per that Act proportionally that the discrimination was mits discrimination in on of account greater than that allowed in view dealers quantity without relation savings principle of the economic that at some cost, and distinguishing phrase that point beyond saturation must be reached employed ology exceptions in the two must quantity justi which no increase in would ignored. if light not But of fy an eviden increase discount. These to, Commission’s change own of view as tiary themselves, circumstances do not of necessary we assume it to be however, finding sustain an ultimate it, to resort to extrinsic aid it ascertain was not on account of the differential is made clear the declaration sev quantity. lack definite commit Congress eral Committees of the and the contract was for Sears’ en ment history section, that the amendment requirements, checking minor or less tire incorporated in the Robinson-Patman Act ders, to rise failure change marks a law not mere concurrently with the rise and fall of fall concluding clarification. So we deem the shipments, and the lack of rela respondent order erroneous insofar the discount Sears and the tion between is necessarily as it based a construc independent of discount gradations law, which limits discrimina dealers, are all inherent nature of tions in on to cost-plus agreement of such unusual vol approximate savings in cost. expected and did result ume anything business, We do not find the case for the from the Sears evidence Ladoga American Canning Can Co. it was from thirteen to thir discloses that Cir., 44 F.2d to conflict with this volume of ty-six times the that of Good independent There largest view. was in that case year’s direct and customer. per they aside, however, seems can it be created the courts in the All this proper judicial conclu findings and exercise func- fectly clear discrimi tions.” 51 S.Ct. We [283 the Commission 590.] sions of of conclude pow- on account that the Commission had no not nation discontinuance, er Commis to command all quantity, were based per reasonably This differentials on interpretation of the law. based sion’s finding properly controlled and is no there which all of its discussion meated ultimate construed findings and its determines that here in- evidentiary those based, Commis volved are not since no standard Section conclusions. present making for the finding recog- with the of such findings dealing sion’s evidentiary composite of nized. question is a facts, Without reasoning and conclusion. respondent order of the set economic advan are denying that there aside. large customer dealing with a tages in pro hazard, stabilizing basis of HAMILTON, Judge (dissent- factors profit and other duction and ing). advantage, dollar and cents into translated I majority am unable concur ap pretense without is determined opinion. to, regard With all due and re- they too advantages that praising such for, spect legal ability my associ- justi remote to speculative, intangible and ates, I believe have included in the is further de fy discrimination. proviso of the statute a case lies be- was not a that the discrimination termined expression yond its direct and not within customarily under quantity discount as spirit. its letter or trade, the Commis because stood sion, This statute should be construed testimony expert weighing the *6 light of attendant conditions and the state con, that concluded pro and economists law the time of its and at enactment approxi justified on quantity discounts not applied carry to out the intention and field considered savings are mate meaning legislature gleaned from con price cutting, and so form of as a language. proviso operates A its to which conclusion is in by law. The demned application general pro- limit the any escapable discrimination strictly visions of a statute should con- be negligible by than a exceeding more strued include no to case not within its let- for differences in allowance a due amount cost must especially applicable ter. rule is The last brought same re have about the found no standard to the case here under consideration. Commission sult. The may proviso guide used as on A be a by which law a of one or the other of savings in selection two to unrelated phrases possible of words or constructions judged. be There is therefore cost is to scope, differential, doubtful in but to petitioner’s found a statute finding no comprehended per into not greater read it a be or a whether it 6.96% contrary by and to quantity be the enactment itself its account of centage, is not on terms, makes an instrument of discrimi- permitted it such discrimination not cause clarifies, defeats, than judged by non-existent nation and rather not be a and legislative intent. Once discrimination is found standard. cost, ipso savings in it is facto unrelated to Usually provisos way find their into be, condemned. So there not persons statutes at the behest unreasonably who are law, a refusal misconstruction of the but apprehensive as their ef- recognize judgment a standard to based on such misconstruction by those who wish to im- and obtain fect and so im munity They from their terms. of facts, if application possibility of lobbyists and favorite instrument those rightly construed. escape general effect of who desire to applicable Applicable provisions lan- of a in this connection statute put proviso Having in a which guage large Raladam Com- class. of the court in the needless, case, supra: powers many cannot instances is in order to^ pany “Official in satisfy class, persistent allay particular beyond neces- and be the terms and extended implications grant. If are sometimes led to sary broader courts construe desirable, liability plainly confer- as relieve of those powers be must scope impose by They merely statute Cohgress. red cannot be within liability officers; apprehensive by nor on those not so administrative assumed possible, protect at diligent up effect rate to the limit of experience which terests. has disclosed. These practices, being disclosed, abundantly now has en- problem monopolies The can. explicitly and item item forbid- society gaged organized the attention den prac- statute in such terms will as statute regulatory centuries. first tically uncertainty, eliminate the law itself passed making all was in'England and the penalty being equally plain.” made illegal .except might such as be authorized Such respect to new manu- was the background Parliament historic in. - enterprises by cor- motives facturing which carried moved framers of legislation porations companies. passed which was as The Federal Trade for sub- 15 U.S.C. this statute was used an excuse seq., A. 41 et Clayton and the sequent so it Anti-Trust transgressions of the act and ofAct 38 Stat. provisos which concerns have since been an avenue us here. v. Southern Pacific evasion. Johnson 1, 22, 25 S.Ct. private monopoly A is indefensible A study of the debates these meas- principle agree. intolerable. To this all Congress ures in clearly shows the intent subject was first Federal law on the illegal practices to declare regarded all passed (26 209), in 1890 Stat. U.S.C.A. likely promote monopolies thus forestall- 1-7, designated 15 note. An Act §§ ing an development. evil before its Against to Protect Trade and Commerce Monopolies and Unlawful Restraints and During the debates, course of the Sen- passed widespread as the result of Walsh, Montana, ator in referring to popular something vehement insistence that Clayton Act, purpose said: “The growing tendency be done curb the to- legislation pending which bill industry ward concentration of to the dis- part preserve forms a is to advantage ot both the consumer small exists, where it to restore it where it is con- producer. illegal “eyery declared destroyed permit up spring it to tract, combination in the form of trust new Congressional Record, fields.” Oct. otherwise, conspiracy, restraint of p. 16. —Vol. among trade or commerce the several While the Federal Trade Commission States, nations,” foreign or with and that passed Act and the sep- Act were *7 “every person monopolize, who shall or at- arately they by were considered Congress tempt monopolize, or combine or con- concurrently, reference to being the other spire any person persons, with other or to frequently made in the course de- of the any part monopolize of the trade or com- each, they bates should be under- among merce the several States” violates complementary attempts stood as pro- the act. Sections government’s concept mote our basic equality. economic Efforts to restraints or- at- eliminate n tempted In the Act, Federal restraints were Trade Commission by Congress attempted the up perma- carried on United States under this the to set n act twenty-four years. body personnel for Its nent of trained duty success whose interpretation safeguard promote fluctuated with the competi- courts’ it was phrases the words and in companion Clayton what of the act tion The industry. difficulty There meant. in' law was entitled “An applying supplement Act To vague existing terms as “contracts in restraint laws unlawful restraints “attempts monopolize” monopolies, of trade” and purposes.” and for other question applica- arose as to the Section U.S.C.A. bility these terms to provides: concrete situations. “Sec. 2. That it shall [§ 13.] tendency toward industrial person concentra- be unlawful for engaged in commerce, unabated commerce, tion continued which resulted in the in course of such disappearance produc- of small units of directly indirectly either or to discriminate brought paradoxical purchasers tion and forth two between different types restraint; one, commodities, of economic which no com- commodities are sold * * * petition; other, use, competition. consumption, ruinous for or resale : ' Wilson, Provided, message nothing in his That President herein contained Sixty-third Congress, prevent said: “We shall discrimination in are suffi- be- ciently processes familiar with the actual tween commodities on ac- monopoly methods grade, and of many quality, count of differences commodity hurtful restraints of sold, trade make defini- or or The Congress difference intended to maintain makes due allowance competitive prices, or transportation, which means those re- selling or cost of in the sulting dif- many buyers or from price in the same the activities of sellers, to and good faith each made in of whom can affect the communities ferent further, only by outcome buying provided selling large And or or competition: meet quantities small pre- according as the is at shall contained nothing herein That point one pro- or another. intended to goods, engaged persons vent monopoly prices scribe which are those from in commerce wares, merchandise or fixed with a advantage view to the fide in bona customers selecting own their purchaser by or seller single (exclusive) of trade.” in restraint and not transactions buyer by seller or or a combination of sell- con- found, facts and the Respondent buyers ers or acting Monopolis- as a unit. violated show, petitioner has clusively always tic possible seller when a exempt under unless section the above differently able to deal with the same mind the rule Bearing ill proviso. buyers classes product of the same announced heretofore terpretation to manage in way some other to sell his controlling, legislature intention goods virtually separate Rec- markets. is what is question in the case single ognizing practice sup- this and in order to expression “discrimination by the meant press monopolies inception, at commodities purchasers of price between Congress penalized sales of the same arti- quality grade, difference on account cle to different customers at different quantity.” prices. finds, undis- and the If the contract between the shows, no differ- there was puted evidence and Sears-Roebuck falls within the defini- quality the tires grade ence “monopolistic prices” tion the term generally and dealers to its petitioner sold outlined, above there is a violation of the Company, & sold Sears-Roebuck those regardless act of difference in be- construction is the true single issue cause the transaction what is common- difference phrase “on account ly ordinary known in business affairs as ap- of universal rule is a quantity.” fixing discriminatory price a de- in a statute phrases words or plication that having monopolistic tendency vice de- carry mani- out the construed to must be nounced Act. in all cases Congress and intent of the fest be followed the construc- rule to sense be construed should relating statutes to commercial tion of context harmonizes best which descriptive terms transactions the de- fullest extent promotes to applied of commerce shall be articles objective. sired acceptation according to understood construc- rule as to the Every technical doing men busi- commercial given them yield particular terms must force of *8 pas- country at the time of the in our ness paramount expression of the clear are found. sage of the act which and the words legislature will of the expression “dis- this rule Under be construed statute will of a phrases purchasers of between crimination sense, the mean- ordinary and with of difference on account commodities them the or- commonly attributed commod- of the quality or grade, Sproles v. life. affairs of dinary business light in the construed must be ity sold” 374, 397, 52 S.Ct. Binford, 286 U.S. regard at the time practices in this business 1167. 76 L.Ed. testimony act. The passage proviso in the statute Excluding familiar with the of those record between here, every discrimination discounts dustry shows that prohibited. relatively purchases It was tire different n notintended prohibition should be definite and certain based small and proviso. inter- purchases Such an none of which by the cancelled volumes known absurdity to the transaction lead to an any resemblance would pretation have liberality and Sears-Roebuck & applied petitioner in the ma- rule of if the acts of the being true proviso, This applicable Company. opinion is jority general pro- it within bring of evasion not up method intended sets and exclude laws anti-trust reasons Congress. For the hereto- visions by the there-, protection out, proviso must be it from strict- pointed fore in. ly construed. 628 question here in do statutes not re quire subsequent aid adventitious legislation kindred purpose for the of eluci words, congress dation. “In other where expressly legislated respect has giv ato matter, en express legislation must control, subsequent legis in the absence of equally express, lation not over and is by any implica thrown mere inferences subsequent tions legis to be found States, lation.” Rosecrans v. United 257, 264, 302, 304, S.Ct. primary duty It is the courts to
interpret meaning and a re statutes /Contemporaneous sort to or executive con unnecessary improper struction is both language where the used is clear can be ascertained the use of
intrinsic aids alone. Bates & Guild Co. Payne, 106, 112, 194 U.S. 24 S.Ct. 894; Pa L.Ed. United States v. Missouri cific Railroad S. 133, L.Ed. 322. Ct. public The mere failure of officers public charged duty to enforce monopolies statutes odious or their permit acquiescence in the conditions them to flourish should be allowed to way of the administration of stand estop such laws or be construed more public efficient diligent and officials when monopolistic they attempt to terminate
practices tendencies. opinion I am order upheld. should HOLMES, Judge, dissenting KOPALD-QUINN & CO. et al. v. UNITED part. STATES.* *9 No. 8590. Appeals, Court Fifth Circuit.
Feb.
* Rehearing 10, 1939. March denied