We reversed the judgment of the District Court on the previous appearance of this antitrust case. Hartley & Parker, Inc. v. Florida Beverage Corporation, 5 Cir., 1962,
We pointed оut three bases in the complaint for claims of discrimination against the distiller under the Clayton Act as amended by the Robinson-Patman *162 Act, 15 U.S.C.A. §§ 13(a), (d), (e), and 15, and against the defendant distributor under 15 U.S.C.A. §§ 13(f), and 15. The first сlaim stated was based on alleged discrimination in prices charged by the distiller as between the distributors; the second on discrimination in promotional allowances by the distiller as betwеen the distributors; and the third, also involving price discrimination, rested on the assertion that plaintiff distributor was charged more than defendant distributor by the distiller for beverages identical exceрt for label. All three claims were supported by allegations that the distributors were competing in the sale of the products in question, of the necessary effect on compеtition, and that plaintiff was damaged.
On remand, and by amendment, an additional claim of price discrimination through concealed transactions in bulk whisky was added. Also on remand, a suit on aсcount brought by the distiller against the plaintiff distributor was consolidated for trial with the antitrust case. This appeal is from judgment for the distiller on the suit on account in the stipulated amount due togеther with interest, and for the distiller and the defendant distributor in the antitrust case.
It developed on the trial that plaintiff’s case was all pleadings and no facts. See Rule 11, F.R.Civ.P. There was a cоmplete failure of proof with respect to the Robinson-Patman Act discriminations alleged from the standpoint of specific or particular evidence introduced. As much wаs conceded on argument in this court. However, plaintiff contends that it was entitled to judgment against the defendant by reason of the consequences flowing from the failure of the distiller tо swear to answers to requests for admissions filed under Rule 36, F.R.CÍV.P. And it is true that the answers were not verified as required by the rule. Only two of the requests go directly to the issue presented. 1 Request No. 8 was as follows:
“That subsequent to the appointment of Florida Beverage Corporation as a dual distributor with respect to the above products, American Distilling Company sold such products to Florida Beveragе Corporation at prices substantially lower than the prices for which the identical products had theretofore been sold to Hartley & Parker, Inc.” Request No. 14 was as follows:
“That subsequent to August 1, 1960, the advertising and promоtional material, services and facilities supplied to Florida Beverage Corporation were not offered to Hartley & Parker, Inc. on equal terms.”
These requests for admissions were denied by the distiller but, аs stated, there was no sworn denial. The same requests were served on the defendant distributor and its answers were verified. Request No. 8 was denied. No. 14 was answered on the basis that it could neithеr admit nor deny for want of sufficient information with respect to the subject matter of the request.
The requests for admissions and the answers thereto were offered by plaintiff on the trial and admitted into evidence. No mention was made of the fact that the distiller had failed to verify the answers. After the evidence was closed, and upon written summarization of the evidencе together with suggested findings and conclusions being filed at the request of the District Court, plaintiff for the first time took the position that it was relying on the default of the distiller to the end of claiming that the requests stood admitted. We hold that the District Court was correct in rejecting this position.
Request No. 8, even if deemed admitted, was otherwise explained by the evidence. There was no рroof whatever *163 that the same prices were not available to plaintiff subsequent to the appointment of Florida Beverage as a dual distributor by the distiller. Indeed, the proof was to the contrary. Plaintiff simply elected not to make further purchases from the distributor. Moreover, there was no proof of price discrimination as related to plaintiff’s stоck of goods on hand at the time it severed relations with the distiller.
An affirmative answer to request No. 14 likewise would avail plaintiff nothing. The District Court would be bound to make its decision on the truth of the case as it was presented, and the truth, according to the uncontradicted evidence introduced without objection in the face of the requests for admissions, was that the samе advertising and promotional materials, services and facilities supplied to the defendant distributor were available to plaintiff.
We decide against plaintiff for another reason. In our view the duty rested on plaintiff, if it wished to take advantage of the defect in the answers, to call the attention of the court to the absence of verification prior tо the end of the trial. One circumstance lending support to this view stems from the fact that the parties entered into a comprehensive pretrial stipulation after the requests fоr admission had been answered. They agreed that, among others, the issues of fact preserved for trial and decision by the court were as follows:
“(a) Whether American Distilling Company gave Florida Beverage Corporation price concessions, discounts or rebates off the case goods wholesale price of whiskey products produced by American Distilling Company which were not similarly available to Hartley & Parker, Inc.
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“(d) Whether American Distilling Company supplied Florida Beverage Corporation with promotional and advertising material subsequent to August 1, 1960 without according to all purchasers the same on proportionally equal terms.”
If, as plaintiff now contends, these issues are foreclosed by the defect in the аnswers to the requests for admissions, then they were foreclosed at the time of the pretrial stipulation and were not outstanding issues of fact. The only difference in the posture of thе case is that the evidence now discloses that there were no acts of discrimination as alleged.
This circumstance is buttressed by the fact that the District Court, because of plaintiff withholding its position, was deprived of exercising its discretion to determine whether the distiller should be permitted to swear to the answers out of time but prior to the close of the trial. Plaintiff rеlies on a group of authorities where the sanction was imposed of treating the requests as admitted in situations where there was no sworn denial. See Beasley v. United States, E.D.S.C., 1948,
A ruling adversely to the plaintiff on this unique contention is also indicated from the spirit of the federal practice to acсord substantial justice over mere technical contentions. The rules are not so inflexible as to prevent truth from coming to light where the variance in question is properly subject, аs is the case, to the exercise of a sound discretion by the court. Ordinarily, where the technical position of the plaintiff had not been otherwise overcome, we could rеmand for verification to prevent *164 a miscarriage of justice. See Woods v. Stewart, supra. However, such a course is unnecessary, where, as here, no objection was lоdged on the trial to the absence of verification and the clear evidence refutes the claimed admission in each instance. Accordingly, there being no merit in the positiоn of plaintiff from the standpoint of having carried the burden of proof, we conclude that the District Court committed no error with respect to the antitrust aspect of the case.
The amount of the account due by plaintiff to the distiller was stipulated. Whether interest was due was a matter of law saved for the court. The court awarded interest. This award is in keeрing with the Florida law on the subject which is that interest is allowable from the time the debt becomes due and payable. See Parker v. Brinson Construction Company, S.Ct.Fla., 1955,
Affirmed.
Notes
. Plaintiff makes much of the failure of the distiller to notice for hearing objections to some of the requests as required by Rule 36. This is a frivolous contention in view of the practice under the local court rule, the fact that the court heard the same objections, and the fact that the objections were valid.