This is аn action for treble damages under Title 15, Section 15 of the United States Code Annotated, which provides as follows: “Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.”
The suit was originally brought as a class action by the Louisiana Farmers’ Protective Union, Inc., and one Ellis M. Jenkins, an alleged member of said association, as plaintiffs, against the Great Atlantic & Pacific Tea Company of America, Inc., Atlantic Commission Company, Inc., Kroger Grocery & Baking Co., Inc., Wesco' Food Co., Inc., Safeway Stores, Inc'., and TriWay Produce Co., Inc., defendants.
The plaintiffs in their original complaint alleged that the Louisiana Farmers’ Protective Union, Inc., was a non-profit cooperative corporation, organized under the laws of the State of Louisiana, and com *899 posed of each and every strawberry, grower in the State of Louisiana who ships strawberries in interstate commerce, and that the plaintiff Ellis M. Jenkins was a member, and the president, of said association and joined in the complaint “individually for himself, and representing all other members” of the association similarly situated; that the defendants were justly indebted unto “your petitioner” jointly, severally, and in solido in the sum of $8,328,-576, together with interest thereon; that the right sought to be enforced on behalf of said association was “a several right,” and that there was a common question of law or fact affecting “the several rights,” and that the persons constituting the class were so numerous (upwards of eight thousand) as to makе it impracticable to bring them all into court; that during the 1937 season “your petitioner through its members, the strawberry farmers of Louisiana,” shipped in interstate commerce 3,400 cars of strawberries, for which said members received an average of $1.57 per crate, and that during the season of 1938 2,500 cars were shipped, for which an average price of $1.97 per crate was received; and that the defendants, in the years 1937 and 1938, handled approximately 25% of “petitioner’s” strawberries at retail through their stores operated throughout the United States.
Following these allegations, an attempt was made in the original complaint to allege a violation of the Robinson-Patman Act, the charge being that in the years 1937 and 1938 “the defendants did unlawfully sell petitioner’s strawberries in interstate commerce at prices below cost for the sole purpose of destroying competitors and eliminating competition in an attempt to create a monopoly.”
It was further alleged in the original complaint that approximately 75% of the strawberries of Louisiana are sold at retail by independent or small groceries or food stores, and that the defendants through their vast holdings, ability to advertise, etc., “have sold your petitioner’s commodity for the sole purpose of stifling competition, not only in fresh fruits, such as strawberries, but are attempting to create a monopoly unto themselves for the exclusive distribution of all agricultural and food-stuff commodities at retail in the continental United States.”
It was further alleged that, whereas in 1937 the strawberry farmers of Louisiana actually received gross $3,928,768, or $1.57 per crate, for 2,502,400 crates of strawberries shipped, they would have received $6,-005,760, or an average of $2.40 per crate, had it not been for the alleged illegаl acts of the defendants, making a net loss of $2,076,992 on the 1937 crop; and that, whereas said farmers in 1938 received gross $3,624,800, or $1.97 per crate, for their berries, that had it not been for said alleged illegal acts of the defendants, they would have received $4,324,000 for their berries, making a net loss of $699,200 on the 1938 crop; and it was further alleged that the loss thus sustained “resulted from the illegal acts of the defendants herein, in selling strawberries as ‘loss leaders’ for the purpose of eliminating competition and attempting to create a monopoly.” Judgment was asked for the sum total of the alleged damages suffered in the years 1937 and 1938, trebled, plus interest and costs.
The Wesco Food Co., Inc., moved to quash service, which motion was sustained, and it passed out of the case. Motions for a bill of particulars, to strike, to sever, and to dismiss, addressed to the original complaint, were filed by the several remaining defendants, and extensive briefs were submitted by the defendants on said motions. The motions were set down for hearing on oral argument, but, on the day set for the hearing, the plaintiff, Louisiana Farmers’ Protective Union, Inc., filed an amended complaint in which its co-plaintiff, Ellis M. Jenkins, was dropped as a party plaintiff.
The amended complaint in question sets up three alleged causes of action, in separate counts, the first based upon the Sherman Anti-Trust Act, U.S.Code Annotated, Title 15, Sections 1 and 2; the second, upon the Clayton Act, Title 15, Section 13; and the third, upon the Robinson-Patman Price Discrimination Act, Title 15, Section 13a.
In the amended complaint the plaintiff, Louisiana Farmers’ Protective Union, Inc., alleges, generally, that it is a non-profit cooperative corporation, organized under the laws of the State of Louisiana, and composed of each and every strawberry grower in thе State of Louisiana who ships strawberries in interstate commerce, and functions as the marketing agent for its members in the marketing and distribution of strawberries; “that each and every member” of the plaintiff association “has duly assigned” to it “all their right, title, and interest in and to all the damages to *900 their business which they have sustained through and by the unlawful acts of the defendants” as set forth in the complaint; that the defendants are engaged in the retail grocery business as the owners and operators of retail stores located throughout the United States, certain of the defendants being buying subsidiaries of others; that the defendant, A. & P., owns, operates, and controls retail chain stores to the number of 13,300 in 35 states; that the defendant, Kroger, has a chain of 3,990 retail stores in the United States; and the defendant, Safeway, a chain of over 3,020 stores in the United States; that the defendants, “through -their retail food stores, under their proper names as shown” in the complaint, “and operating under various other names, but which are wholly controlled and dominated by the defendants, handled in the years 1937 and 1938 approximately 25% of plaintiff’s strawberries at retail through their stores operated throughout the United States.”
Following these allegations, an alleged violation of the Sherman Act is charged, in count one of the amended complaint, as follows:
“That in the years 1937 and 1938 the defendants combined and conspired with the object and intent of stifling competition and monopolizing retail distribution of food products in the United States, particularly strawberries; that in pursuance of said plan the defendants have employed the merchandising technique of using ‘loss leaders’ of certain products, and more particularly in plaintiff’s strawberries, to destroy the business of competitors and in that way control the sole outlet for strawberries and other food products; that the result of said conspiracy was to permit said defendants to dictate not only the prices to be paid by them for plaintiff’s strawberries but to create a monopoly unto themselves for the exclusive distribution of all strawberries and agricultural and foodstuff commodities at retail in the United States; that a further result of said conspiracy was to enable the defendants to control the retail distribution of food products, and more particularly strawberries, in such a manner as would vest the defendants as the owners of their various retail outlets with arbitrary power to dictate prices not only to the ultimate consumer but to the producer as well.”
The amended complaint then charges, in count two, an alleged violation of the Clayton Act, as follows:
“That the defendants have resorted to the merchandising technique of using ‘loss leaders’ of certain products, and more particularly in the plaintiff’s strawberries, with the object and intent of destroying competition, and in that way control the sole outlet for strawberries and other food products; that the use of strawberries as ‘loss leaders’- by the defendants resulted in a price depreciation of the entire strawberry market and an elimination of competition in the strawberry field; that the defendant corporations having purchased from the plaintiff’s members the strawberries * * * mentioned in this complaint, and the said defendants being so engaged in commerce throughout the United States of America, and in the sale of said strawberries therein, and in the course of such commerce, discriminated in price and caused a discrimination in price between the different purchasers of said strawberries throughout the United States of America who purchased from retail stores throughоut the United States and in stores other than the retail stores so conducted, owned, operated and controlled by the defendants, which strawberries were sold for use, consumption and resale within the United States, and in places under the jurisdiction of the United States, and the effect of such discrimination was to substantially eliminate competition and tended to create a monopoly in the sale of strawberries; that after the said defendants so purchased and caused to be purchased in their behalf, the said strawberries from the plaintiff’s members, it caused the said strawberries to be sold at a price below the purchase price thereof, and discriminated against the purchasers of other and independent retail stores throughout the United States of America, which said other retail stores, independent of the control and domination of the defendants, were unable to meet the unfair, unlawful, and sacrificial prices below cost, at which the defendants caused the said strawberries to 'be so sold in their retail stores, and that the effect of this discrimination substantially lessened the competition in the sale of strawberries and tended to create a monopoly over the said strawberry industry and over the products of the plaintiff.”
An alleged violation of the RobinsonPatman Act is then charged, in count three of the amended complaint, as follows:
“That the defendants herein have resorted to the merchandising technique of using *901 'loss leaders’ as a means of price discrimination in certain products, and more particularly in the plaintiff’s strawberries, with the object and intent of destroying competition and in that way controlling the sole outlet for plaintiff’s strawberries; that the defendants thereafter sold plaintiff’s members’ strawberries and contracted to sеll plaintiff’s members’ strawberries at unreasonably low prices, and below the purchase price, for the purpose of destroying competition and eliminating competitors in the various parts of the United States, and practically throughout the United States.”
In connection with the alleged violations of the Sherman, Clayton, and RobinsonPatman Acts, it is alleged separately in each instance:
“That during the season of 1937, beginning the latter part of the month of March and ending in the latter part of the month of May, the plaintiff, through its members, the strawberry farmers of Louisiana, shipped in interstate commerce 3,400 cars of strawberries, or 2,502,400 crates of strawberries, for which the plaintiff’s members received an average of $1.57 per crate; that had it not been for the illegal acts of the defendants herein, the plaintiff through its members, the strawberry farmers of Louisiana, would have received $6,005,760.-00 for their strawberries, or an average of $2.40 per crate, making a net loss to the plaintiff, through its members, the strawberry farmers of Louisiana, of $2,076,992.-00, on the crop of 1937, due solely to the illegal acts of the defendants herein;” and
“That during the season of 1938 * * *, the plaintiff, through its members, * * * shipped in interstate commerce 2,500 cars of strawberries, or 1,840,000 crates of strawberries, for which the plaintiff’s members received an average of $1.97 per crate; that had it not been for the illegal acts of the defendants herein, the plaintiff, through its members, * * * would have received $4,324,000.00 for their strawberries, or an average of $2.35 per crate, making a total loss to the strawberry farmers of Louisiana of $699,200.00 on the crop of 1938, due solely to the illegal acts of the defendants herein.”; and
“That plaintiff’s entire loss and damage was caused solely by the defendants’ wrongful and unlawful acts as hereinbefore alleged.”
It is then alleged that, under the Act of October 15, 1914, 15 U.S.C.A. § 15, the plaintiff is entitled to recover three times the actual damage of $2,776,192; and judgment is prayed in the amount of $8,328,576, together with interest thereon, and costs, including a reasonable attorney’s fee.
Motions for a bill of particulars and a more definite statement, addressed to the amended complaint, were filed by the several defendants, and were granted in part. Our memorandum opinion in this connection is reported in 31 F.Supp. page 483.
Following the entry of the order made in accordance with the opinion on said motions, the plaintiff filed a bill of particulars herein, which bill of particulars, in response to motions made by the defendants, has been amplified by three amendments.
In its bill of particulars the plaintiff gives the names and addresses of its assignors, 8,795 in number, and sets up that the assignments were oral, and were all made at the same time and place, viz., on March 3rd, 1939, at a meeting of the plaintiff union, held in Hammond, Louisiana. It states that the assignments were effected by the adoption of a motion in the form of a resolution, made by one of the members and seconded by another, a vote being taken thereon, at which time “it was then asked if any one opposed said resolution, and upon no hands being raised it was adopted unanimously.” It further sets up that at said meeting all of its said assignors, the same being all of its members, were present and voted in favor of said resolution. In the bill of particulars the term “loss leaders” is defined as follows:
“By the term 'Loss 'Leaders’ is meant an advertising and selling method and technique used by some retail chain-stores and used by the defendants in this case, whereby they offer for sale specific commodities, in this case, strawberries, not at a normal, reasonable or usual profit, not where the reduced price is duе to deterioration or perishability of the goods, nor due to obsolescence, and at a reduced price not competitively required, but in fact at cost and even below cost, and at the same time stressing by advertising the sale thereof as an attraction and inducement to bring the customers into the store, not with the idea of making any profitable transaction out of these commodities, or in this case of the strawberries, but seeking thereby to give the impression that these stores or these defendants have a general low priced policy.”
*902 The plaintiff has also furnished a copy of its charter, from which it appears that it was incorporated on July 13th, 1937, under the laws of the State of Louisiana; that its object is to organize the farmers of that state into one group “in an effort to materially reduce the cost of production of their crops and to cooperate in securing for them the highest possible price for their crops,” and particularly with respect to the strawberry crop. The corporation was given the power to contract, to sue and be sued, and to acquire real and personal property by gift or otherwise, the same to be employed and disposed of in furtherance of the objects and purposes of the corporation. The charter further provides that every farmer who is a resident of the State of Louisiana, and who is a farmer by occupation or profession, and “who has been farming for the past year or more,” shall be eligible for membership, and by paying the sum of $1 shall become enrolled as a member for one year; and at the expiration of the first year each member is required to pay annually the sum of $1.
In an amendment to the bill of particulars it is set up that there is a further provision of the constitution of said association providing that “The Board of Directors shall also have the power to protect and represent legally or in the courts every member of said organization in the bringing of class actions, or individual actions, or in the bringing of an action for and on behalf of all the members of said organization by said organization, either by assignment oral or written, assigning whatever right said members may have or otherwise.”
It is also set up in said bill of particulars that the plaintiff will contend at the trial that the A. & P. sold Louisiana strawberries as “loss leaders” in 20 specifically designated cities in the United States during the year 1937, and in 23 such cities during the year 1938; that Kroger sold said strawberries as “loss leaders” in 16 designated cities in 1937, and in 19 in 1938; and that Safeway sold such strawberries as “loss leaders” in 11 designated cities in 1937, and in the same cities in 1938. The names of the alleged conspirators are given in some instances, and in other instances it is stated that the officers of certain designated defendants were the conspirators.
To the amended complaint, as supplemented by the bill of particulars and amendments thereto, the remaining defendants have addressed motions to dismiss on the ground that said amended complaint, as supplemented, fails to state a claim upon which relief can be granted to the plaintiff; and this cause comes on for hearing upon said motions, and is submitted to the court on written briefs and oral argument.
The defendants contend that the amended complaint is defective in several respects : ' that in each count the plaintiff has merely charged a violation of the applicable statute in the general language of the act, and has failed to allege facts sufficient to constitute a violation of the law by the defendants, and has also failed to allege facts showing damage to the business or рroperty of its assignors proximately resulting from the alleged illegal acts of the defendants; that the plaintiff has not alleged compliance with specific requirements of Louisiana law necessary to enable it to maintain this suit as assignee; and that with particular reference to the alleged violation of Section 3 of the Robinson-Pat-man Price Discrimination Act, 15 U.S.C.A. § 13a, that said section is not an amendment to the Clayton Act, and is not one of the Anti-Trust laws within the meaning of § 1 of the Clayton Act, 15 U.S.C.A. § 12, but is a separate criminal statute, and that Section 4 of the Clayton Act, 15 U.S.C.A. § 15, providing for civil actions for treble damages for violation of the Anti-Trust laws, does not apply thereto; and, further, that said Section 3, insofar as it prohibits sales at “unreasonably low prices,” is void for uncertainty.
While a number of most interesting questions are raised by these contentions, the conclusion we have reached renders it unnecessary for us to pass upon them all.
As stated, this is an action for'treble damages under Title 15, Section 15 of the United States Code Annotated, providing that “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor * * * and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.”
This statute, providing as it does for treble damages, should be strictly construed. American Banana Co. v. United Fruit Co., C.C.,
*903 The courts in applying this statute have laid down a rule which had been variously stated as follows:
In Glenn Coal Co. v. Dickinson Fuel Co. et al., 4 Cir.,
“To'recover, the plaintiff must establish two things: (1) A violation of the AntiTrust Act and (2) damages to the plaintiff proximately resulting from the acts of the defendant which constitute a violation of the Act. In a civil suit under this section, the gist of the action is not merely the unlawful conspiracy or monopolization or attempt to monopolize interstate commerce in the particular subj ect matter, but is damage to the individual plaintiff resulting proximately from the acts of the defendant which constitute a violation of the law. A mere conspiracy with intent to violate the law while it may be the basis of a valid indictment under the criminal sanction of the Anti-Trust Act, does not give rise to a personal civil suit for damages.
“Thus it has been held in numerous federal decisions that in a civil suit under this special Act the declaration must allege facts from which the court can determine that there has been a violation of the Act with resultant damage proximately caused thereby to the plaintiff. In Alexander Milburn Co. v. Union Carbide & Carbon Corp. [4 Cir.]
“ ‘For it is not sufficient that the declaration be framed in the words of the statute, or that it allege mere conclusions of the pleader. It must describe with definiteness and certainty the combination or conspiracy relied on, as well as the acts done which resulted in damage to plaintiff,’ ” etc.;
In Foster & Kleiser Co. v. Special Site Sign Co., 9 Cir.,
And on page 754 of 85 F.2d: “In the absence of an allegation of the causal connection between the damage, and the conspiracy to restrict interstate commerce in posters, no cause of action is stated under the Sherman Anti-Trust Act.”;
In Hart v. B. F. Keith Vaudeville Exchange et al., 2 Cir.,
In Rice v. Standard Oil Co., C.C.,
In Twin Ports Oil Co. v. Pure Oil Co., 8 Cir.,
In Noyes v. Parsons et al., 9 Cir.,
And on pages 696, 697 of 245 F.: “The argument that the injuries suffered by the Washington Company grew out of the unlawful combination of the defendants in restraint of trade and commerce is not convincing, and the jurisdiction of a federal court, limited as it is by law, cannot be made to depend upon argument. The jurisdiction must not be a matter of mere inference, but must appear by distinct averments according to the rules of good pleading. Minnesota v. Northern Securities Co.,
In Gerli v. Silk Ass’n of America et al., D.C.,
In Keogh v. Chicago & Northwestern Railway Company et al.,
In Ebeling v. Foster & Kleiser Co. et al., D.C.,
In American Sea Green Slate Co. et al. v. O’Halloran et al., 2 Cir.,
In H. E. Miller Oil Co. v. Socony-Vacuum Oil Co., Inc., et al., D.C.,
*905
In Jack v. Armour & Co. et al., 8 Cir.,
While it is contended that one or more of the expressions just quoted, with particular reference to the necessity of alleging the amount of damage sustained by the plaintiff in cases of the nature under consideration, have been weakened by certain language of the United States Supreme Court in Story Parchment Co. v. Paterson Parchment Paper Company et al.,
It will be noted from the foregoing that allegations of fact showing a violation of the law, should they be found m the complaint under consideration, are not in themselves sufficient; facts showing damages that can be measured in dollars, proximately resulting therefrom, must also appear; and, in this connection, it should be borne in mind that this is not an action to enjoin the alleged unlawful practices, or a criminal prosecution for violation of the Anti-Trust laws. As stated in Jack v. Armour & Co. et al., supra, “The question whether the United States could sue upon such a showing as here made is not involved and is neither important nor decisive,” and in Glenn Coal Co. v. Dickinson Fuel Co. et al., supra, “A mere conspiracy with intent to violate the law while it may be the basis of a valid indictment under the criminal sanction of the AntiTrust Act, does not give rise to a personal civil suit for damages.” This is an action for damages alleged to have been heretofore suffered by plaintiff’s assignors; and we have concluded that the determinative question in the entire case is whether the amended complaint contains legally sufficient allegations with particular reference to damages. With this thought in mind, we will attempt to analyze the said complaint as supplemented by the bills of particulars:
It is alleged that the plaintiff is a nonprofit, cooperative corporation “composed of each and every strawberry grower in the State of Louisiana who ships strawberries in interstate commerce and functions as the marketing agency for its members in the marketing and distribution of strawberries;” that each and every member of its association, of which there are 8,795, has orally assigned to the plaintiff all of his right, title, and interest in and to all the damages to his business whiсh he has sustained, as set out in the complaint; that the defendants were, prior to the times mentioned in the complaint, and are now, engaged in the retail grocery business as the owners and operators of retail stores located throughout the United States; that at the times mentioned in the complaint the A. & P. owned, operated, and controlled a chain of over 13,300 stores in at least thirty-five states of the Union; that Kroger had a chain of over 3,990 retail stores in the United States; and Safeway a chain of over 3,020 retail stores in the United States; that the defendants handled in the years 1937 and 1938 approximately 25% of plaintiff’s strawberries at retail *906 through their stores operated throughout the United States.
Then, in what is designated as count one of the amended complaint, follow the alleged violations of Sections 1 and 2 of the Sherman Anti-Trust Act, in which it is charged that the defendants combined and conspired with the object and intent of stifling competition and monopolizing the retail distribution of foodstuff products, particularly strawberries; that they employed the merchandising technique of using “loss leaders” of certain products, and particularly plaintiff’s strawberries, to destroy the business of competitors, and in that way control the sole outlet for strawberries and other food products, and that the result of said conspiracy was to enable them to dictate the price to be paid for plaintiff’s strawberries and to create a monopoly unto themselves for the exclusive distribution of all strawberries and agricultural and foodstuff commodities at retail in the United States.
Following this are the allegations of damages, with which we are particularly concerned, the allegations being that during the 1937 season plaintiff’s assignors shipped in interstate commerce 3,400 cars of strawberries, or 2,502,400 crates of strawberries, for which they receivеd an average of $1.57 per crate; that “had it not been for the illegal acts of the defendants herein, the plaintiff through its members, the strawberry farmers of Louisiana, would have received * * * $6,005,760. for their strawberries, or an average of * * * $2.40 per crate, making a net loss to the plaintiff, through its members, the strawberry farmers of Louisiana, of I* * * $2,076,992.;" that during the 1938 season the plaintiff, through its members, shipped in interstate commerce 2,500 cars of strawberries, or 1,840,000 crates, for which its members received an average of $1.97 per crate; that had it not been for the alleged illegal acts of the defendants, the plaintiff, through its members, would have received $4,324,000 for their berries, or an average of $2.35 per crate; making a total loss to the strawberry farmers of Louisiana of $699,200.
It is then alleged that the entire loss and damage was caused solely by the defendants’ wrongful acts.
The plaintiff’s definition of “loss leaders,” as given in the bill of particulars, has heretofore been quoted in full.
In count two, many of the allegations of the first count are adopted, and the remainder are practically identical with those of count one, except for the charge of an alleged violation of the Clayton Act. It is alleged that the use of strawberries as “loss leaders” by the defendants resulted in a price depreciation of the entire strawberry market and an elimination of competition in the strawberry field, and it is further charged that the defendants “in the course of such commerce, discriminated in price and caused a discrimination in price between different purchasers of the said strawberries * * * who purchased from retail stores throughout the United States * * * and the effect of such discrimination was to substantially eliminate competition and tended to create a monopoly in the sale of strаwberries.” The allegations of damages are identical with those in the first count.
In count three, many of the allegations of the first count are likewise adopted, and it is charged, in effect, that the defendants resorted to the merchandising technique of using “loss leaders” as a means of price discrimination in said products, and more particularly in plaintiff’s strawberries, with the object of destroying competition and in that way controlling the sole outlet for plaintiff’s strawberries, and thereafter sold and contracted to sell plaintiff’s strawberries at unreasonably low prices and below the purchase price, for the purpose of destroying competition and eliminating competitors, practically throughout the United States. As in count two, so in count three, damages are set forth and calculated on the same basis as in count one.
The prayer of the complaint is for judgment for the sum total of the damages claimed, trebled, plus interest and costs, including a reasonable attorney’s fee.
Now, conceding, without deciding, that the plaintiff has in each count of the complaint alleged facts showing a violation of the Anti-Trust laws, it has, in our opinion, failed to state a cause of action under the treble damage statute because it has not alleged facts showing damage to the business or property of its assignors in an amount susceptible of expression in figures, proximately resulting from the alleged illegal acts.
This suit was originally brought as a class action by the Louisiana Farmers’
*907
Protective Union, Inc., and one Ellis M. Jenkins, one of the members of said association, who sued “individually for himself, and representing all other members,” but when the amended complaint was filed, Jenkins was dropped as a party plaintiff, and the remaining plaintiff, Louisiana Farmers’ Protective Union, Inc., sued as the alleged assignee of its 8,795 members. It did not, however, attempt to allege separate damages to its several assignors, but alleged damages in a lump sum to the group, which group it is alleged is composed of each and every strawberry grower in Louisiana who shipped strawberries in interstate commerce in the years 1937 and 1938. This sum was arrived at by alleging that during the year 1937 the plaintiff’s members shipped in interstate commerce 3,400 cars of strawberries, for which they received an average price of $1.57 per crate; that during the season of 1938 they shipped 2,500 cars of strawberries, for which they received an average price of $1.97 per crate; and that had it not been for the alleged illegal acts of the defendants herein, they would have received an average of $2.40 per crate during the 1937 season, and $2.35 per crate during the 1938 season; and they claim the difference between these alleged averages as damages. It will be noted that the plaintiff sues for no damage to itself, and bases its right to maintain the suit solely upon the 8,795 assignments. Therefore, the plaintiff is suing as assignee on 8,795 separate, individual claims. Now, had any one of the assignors brought suit against the defendants in his own name and upon his own claim, it would, of course, have been necessary that he allege damage to his business or property proximately resulting from the alleged unlawful acts of the defendants and in some amount susceptible of expression in figures; and the fact that he assigns his claim to another party cannot change this rule in the least. The plaintiff, as assignee, can have no better right than that of its assignor; it steps into his shoes; and the same principle applies whether the plaintiff sues as the assignee of one or of 8,795 assignors. This, it seems to us, is elementary. It is, therefore, necessary that the plaintiff allege facts from which damage to each and every one of its assignors in his individual business can be legally and logically inferred. Prior to the filing of the amended complaint herein, the situation was somewhat analogous to that in the case of Alabama Independent Service Station Ass’n, Inc., et al. v. Shell Petroleum Corporation et al., D.C.,
“The Alabama Independent Service Station Association, Inc., will be stricken as a plaintiff. We may add that the remaining plaintiffs, as operators of gasoline service stations, may properly remain as plaintiffs, and may sue on behalf of all of the similarly situated parties described in the complaint. See Rule 23(a) (3), Rules of Civil Procedure [28 U.S.C.A. following section 723c]; Moore’s Federal Practice, Vol. 2, pp. 2241 et seq. However, for the recovery of damages, each member of the class must intervene to assert and prove such damages to himself.”
In the Alabama case, the court held that each member of the association who intervened must assert and prove his damages; and the plaintiff, in the instant case, by obtaining assignments from its members, cannot thereby disregard the requirement that the damage to each of its assignors be asserted.
Relative to the lumping of the damages, the plaintiff has this to say in its brief: “The strawberry growers originally had each a separate cause of action, and each separate cause of action, if proved, constituted a fractional portion of the damage done the entire group, or whole, of the strawberry growers of Louisiana. The petition of the plaintiff, after all the causes of action of the individuals were assigned to it, now petitions the relief of the Federal District Court for the entire damage done to the growers of the strawberry crop in Louisiana by the defendants for the respective years complained of. This is the premise of the plaintiff. Repeating, the plaintiff has the right, and has elected to pursue the right, as assignee of all of the *908 fractional interests of the strawberry growers (or individual causes of action, as they may be termed) to file suit in a single claim for damages against the defendants for the total sum of the compensating entire damage done its respective assignors.”
In other words, it takes the position that, having alleged in a lump sum damage to all of the strawberry growers in Louisiana who in 1937 and 1938 shipped strawberries in interstate commerce, and having alleged that each and every one of said strawberry growers has orally assigned his claim to it, therefore, since it owns all the claims of all the parties who raised strawberries in Louisiana in 1937 and 1938, for shipment in interstate commerce, and has alleged damage to the entire group, it has sufficiently alleged damage to each one of the growers, and has a right to recover therefor.
We do not deem it necessary to pass upon the validity of the alleged oral assignments, but, conceding, for the sake of argument, that oral assignments of claims of this nature are valid in Louisiana, and conceding that plaintiff’s alleged assignors, by reason of their failure to raise their hands at the meeting of the union at Hammond, thereby assigned their claims to the plaintiff, the court would still have to go a long way to accept, even for the purpose of a motion to dismiss, the allegations that all of the strawberry growers in Louisiana who shipped strawberries in interstate commerce during the years 1937 and 1938 are members of its association, that all of said parties were present at the meeting of the union at Hammond, and that all of them assigned their claims to it. A motion to dismiss of the nature under consideration is equivalent to the general demurrer; Federal Life Ins. Co. v. Ettman, 8 Cir.,
Moreover, the necessary causal relationship between the alleged violations Of the statutes and the alleged damage to plaintiff’s assignors, does not appear:
In count one, it is first alleged that the defendants combined and conspired with the object and intent of stifling competition and monopolizing the retail distribution of food products in the United States, particularly strawberries. As stated in the Glenn Coal Co. case, supra, a mere conspiracy to violate the Anti-Trust laws does not give rise to a personal civil suit for damage. It is then alleged that in pursuance of the plan the defendants employed the merchandising technique of using “loss leaders” of said products, and more particularly of plaintiff’s strawberries, to destroy the business of competitors and in that way control the sole outlet for strawberries and other food products. It is not alleged, however, that the business of defendants’ competitors was destroyed. The plaintiff then alleges that the result of said conspiracy was to permit the defendants to dictate, not only the price to be paid for plaintiff’s strawberries, but to create a monopoly unto themselves for the exclusive distribution of all strawberries and agricultural and foodstuff commodities at retail in the United States. And preceding, and in connection with, these allegations, it is alleged that in 1937 and 1938 the defendants handled approximately 25% of plaintiff’s members’ strawberries at retail. It is then stated that had it not been for these acts on the part of the defendants, the plaintiff’s assignors would have received a higher average price than the average price that was received for their 1937 and 1938 crops. Just why or how they would have received a larger price is not stated. It is stated in count two that the use of strawberries as “loss leaders” by the defendants resulted in price depreciation of the entire strawberry market and an elimination of competition in the strawberry field, and for the purpose of this opinion we will tаke it that a similar allegation has been made in count one. The sum total of these allegations is that the defendants entered into a conspiracy to monopolize the retail distribution of food products in the United States, particularly strawberries; that they handled 25% of the Louisiana strawberry crops for 1937 and 1938, and employed the merchandising technique of using “loss leaders” to destroy the business of competitors, and in that way control the sole outlet for strawberries, and that the result was the creation of a monopoly unto themselves for the exclusive distribution of all strawberries and agricultural and foodstuff commodities at retail in the United States, which resulted in a price depreciation of the entire strawberry market and an elimination of competition in the strawberry field, and that had it not been for this, the plaintiff’s assignors would have received higher average prices for their crops for said years than they did.
We do not think that the plaintiff has here stated facts which logically lead to the conclusion that the damage claimed proximately resulted from the alleged unlawful acts on the part of the defendants. We do not think that the plaintiff has alleged facts showing an effective monopoly, that is, a monopoly sufficiently effective to bring about the alleged damage to plaintiff’s assignors. If the defendants *910 purchased only 25% of the Louisiana strawberries shipped in interstate commerce, other parties, evidently their competitors, purchased the remaining 75%. There is no allegation to the effect that the defendants purchased strawberries from any other state whatever, and it is a well known fact that strawberries are grown rather generally throughout the United States. The 75% of the Louisiana crop purchased by others and strawberries grown elsewhere necessarily entered into competition with the 25% of the Louisiana crop purchased by the defendants, and naturally influenced the price received by the Louisiana growers for their berries. We have commented on this heretofore. It may be argued that strawberries are a seasonal crop and on that account the competition from other states is limited, but, on the other hand, a large part of the strawberry crop is canned and preserved and sold and distributed throughout the entire twelve months of the year. Furthermore, strawberries that are canned and used locally throughout the United States enter, to a certain extent, into competition with Louisiana strawberries.
The allegation that the result of the conspiracy was to create a monopoly unto the defendants for the exclusive distribution of all strawberries and agricultural and foodstuff commodities at retail in the United States cannot be accepted as true even on motion to dismiss. It is well known that there is no monopoly in the retail food business. The court will take judicial notice of the fact that other chain stores and “independent” grocery stores are quite numerous throughout the United States. State v. Miksicek,
The allegation with reference to price depreciation in the entire strawberry field having been brought about by the sale of 25% of the Louisiana crop as “loss leaders,” fails to take into consideration other factors which cause a price depreciation in agricultural and food products, such as overproduction, labor conditions, weather conditions, manner of cultivation and fertilization of the crop, quality, etc. No facts are alleged in the complaint relative to the amount of strawberries raised either in Louisiana or in the entire United States during the years 1937 and 1938. The facts alleged with reference to the Louisiana crop deal solely with berries shipped in interstate ' commerce during those years. Neither does the complaint contain any allegation with reference to the quality of the Louisiana berries during the two years in question as compared to the quality of berries raised elsewhere. According to the complaint, the strawberry farmers of Louisiana shipped 3,400 cars of strawberries during the 1937 season, for which they received an average price of $1.57 per crate, and 2,500 cars during the 1938 season, for which they received an average of $1.97 per crate. It is not stated why the average price received was higher in 1938 than it was in 1937. It is noted, however, that the plaintiff contends that its assignors suffered nearly three times as much damage on account of the alleged illegal acts of the defendants in 1937 as they did in 1938, it being contended that the damage in 1937 was $2,076,992, whereas, in 1938 it was $699,200. There are no direct allegations in the complaint to explain this difference. This state of affairs, however, does not indicate that the sale of strawberries as “loss leaders” in 1937 had a deleterious effect on the 1938 market. It is not alleged directly that there was a smaller production in 1938 than in 1937, but it is alleged that 900 less cars were shipped, which would indicate a smaller production, and which tends also to illustrate the effect of a large production on the average market price. Here we see exemplified the observation we have heretofore made to the effect that, insofar as the allegations of the complaint are concerned, the difference in average market prices may have been due to overproduction or othеr factors rather than the sale of strawberries at retail as “loss leaders.”
It is to be kept in mind that the plaintiff’s assignors are not competitors of the defendants. Had this action been brought by the proprietors of retail stores, competing with the defendants, it might be logically assumed that damages to them would proximately flow from the alleged illegal acts of the defendants, but no such assumption can be indulged in where the complaining parties are not competitors of the defendants; and here, in our opinion, is the main difficulty that confronts the plaintiff. Moreover, where there is competition between the plaintiff and the defendant, the damages are more readily measured because the plaintiff’s business experience before and after the consummation of the alleged illegal acts provides a basis for
*911
determination of the damages. The independent and other chain grocery stores which compete with the defendants may have been injured by the sale of strawberries as “loss leaders” by the defendants, but they are not complaining here, and, as stated in Carbonic Gas Co. of America, Inc., v. Pure Carbonic Co. of America et al., D.C.,
“A plaintiff may not, therefore, assume the role of a deus ex machina for other parties and found a cause of action in its own favor on discrimination in violation of the Clayton Act as to such other parties.”
It is true that we might speculate that the growers suffered to some extent from the repercussion, due to the effect upon the independent and other chain grocery stores of the sale of Louisiana berries as “loss leaders,” but such damages, insofar as the allegations of the amended complaint show, would be speculative and remote, rather than direct. It does not neсessarily follow, however, that even if the defendants had sold the strawberries at higher prices, the growers would have received a higher price for their crop. The plaintiff so concludes in its complaint, but there are no allegations of fact therein upon which to base such a conclusion. It is well known that ordinarily consumption increases as the price of a commodity declines, and that consumption decreases as the price is raised. The sale of strawberries as “loss leaders” by the defendants did not necessarily damage the growers, and there are no allegations of fact in the complaint showing that they were proximately injured thereby.
The cases cited by the plaintiff, on the question of the sufficiency of the allegations of the amended complaint with particular reference to damages, are not in point. With a few exceptions, they fall into two groups: one, cases dealing with the manner of stating a cause of action, mainly decisions construing ■ the Federal Rules of Civil Procedure, it being contended in connection with these citations that many of the older theories of pleading are no longer applicable, and that plaintiff’s amended complaint is good under the plan for simplification of pleadings provided for under the new rules and discussed in these decisions; and, two, cases where the plaintiff and defendant were competitors and the allegations of the respective complaints were such that it could be “logically and legally” inferred that measurable damages proximately resulted from the alleged illegal acts.
In the first group plaintiff has cited United States v. Schine Chain Theatres, Inc. et al., D.C.,
The plaintiff also cites Swift & Company v. United States,
In connection with the foregoing group of citations, the plaintiff contends that its complaint is sufficient in that it has pleaded the ultimate facts. We do not agree with the plaintiff. We think that it has pleaded legal conclusions rather than ultimate facts. The motion to dismiss concedes the truth of all well pleaded facts but does not concede the truth of the legal conclusions pleaded. Federal Life Ins. Co. v. Ettman, supra.
In the second group of cases cited by plaintiff, on the question of damages, those mainly relied upon are: Story Parchment Company v. Paterson Parchment Paper Company et al., supra; Wheeler-Stenzel Co. v. National Window Glass Jobbers’ Ass’n, 3 Cir.,
The plaintiff has cited Story Parchment Company v. Paterson Parchment Paper Company et al., supra, in connection with the rule that requires a plaintiff in an action under the treble damage statute to allege facts showing damages to his business or property susceptible of expression in figures, and we have heretofore alluded to the fact that it is its contention that certain expressions of the courts, quoted by us in connection with our statement of the rule have been weakened by certain language of the United States Supreme Court in the Story case. The language in question is to the effect that the rule which precludes the recovery of uncertain damages applies to such as are not the certain result of the wrong, not to those damages which are definitely attributable to the wrong and only uncertain in respect of their amount; and it is plaintiff’s contention that by the use of this expression the supreme court has, to say the least, weakened the lаnguage of the Eighth Circuit Court of Appeals in Jack v. Armour & Co. et al., supra, wherein the court said that before recovery can be had by a private person under the treble damage statute “there must at least be an allegation of the manner, nature, extent, or amount of the injury sustained by such private person,” and the holding of the Second Circuit Court of Appeals in American Sea Green Slate Co. et al. v. O’Halloran et al., supra, that: “To recover under the seventh section plaintiffs must show that, as a result of defendants’ acts, actual damages were sustained — damages in some amount which is susceptible of expression in figures. These damages must be proved by facts from which their existence is logically and legally inferable- — not by conjectures, or estimates. They must not be speculative, remote, or uncertain. As we understand the law, a jury may not merely guess that plaintiff lost $1,000 or $10,000 which they *913 might have made, even if they feel reasonably sure that some loss was sustained. They cannot award damage as they do for pain or suffering in an action for personal injuries, or for reputation as they do in a libel suit.”
In the Story case, supra, suit was brought by a manufacturer of parchment paper against two of its competitors for damages for violation of Section 2 of the Sherman Anti-Trust Act. The proof showed that at the time the plaintiff entered the field the two defendants and another company (which was not joined in the suit for lack of jurisdiction) enjoyed a monopoly in the manufacture of parchment paper; that the plaintiff began to cut prices; that the other three companies combined and not only met the plaintiff’s prices, but sold below its prices.; and that a price war resulted; and the defendants, through mutual agreement and concerted action, cut the prices to such an extent as to totally destroy the business of the plaintiff. The plaintiff sued for two items of damage: one, what was termed by the district court “loss of profits,” and, two, depreciation in value of its plant. The case was tried to a jury, which resulted in a verdict for the plaintiff in the sum of $65,000. On appeal to the circuit court of appeals, 1 Cir.,
On item one, that is, “loss of profits,” the plaintiff introduced proof of the prices which were maintained by the defendants for their products at the time it entered the field, which prices the plaintiff claimed were fair and reasonable, and of the prices at which it was forced to sell its products by reason of the unlawful combination; and it was the contention of the plaintiff that in these figures it had a yardstick by which the loss it sustained by reason of the sale of its products at sacrificial prices could be measured with a reasonable degree of certainty. The circuit court of appeals held, in effect, that the yardstick in question did not furnish a proper basis for the measurement of the damages, and that the damages in question were speculative. In this connection, the supreme court [
On the second item of damages, the depreciation in value of the plaintiff’s plant, the court pointed out that there was evidence to the effect that the plant had cost $235,000, of which $90,000 had been used to purchase and install a parchmentizing machine, and that there was an estimate made on the witness stand placing the value of the plant after it had closed down at $75,-000, which evidence, if accepted, would show a depreciation of more than the entire amount of the verdict, which included both items of damage; and, in this regard, the court said: “That there was actual damage due to depreciation in value was not a matter of speculation, but of fact which could not be gainsaid. The amount alone was in doubt.”
It will be noted that while the suрreme court used the expression stressed by counsel for plaintiff, the court at the same time indicated that damages in a case of the nature under consideration may not be determined by mere speculation or guess, and that the approximate extent of the damages as a matter of just and reasonable inference should be shown. We do not feel that the decision in the Story case has materially changed the rule that the burden *914 is upon the plaintiff in cases of this nature to show that he has suffered damages to his business or property “in some amount susceptible of expression in figures” (words used by the supreme court itself in Keogh v. Chicago & Northwestern Ry. Co. et al., supra), that is, as we take it, in an amount that can be measured in dollars.
The Story case is not in point with the case at bar. In the Story case the question involved was the sufficiency of proof to go to the jury; in the instant case, the sufficiency of the allegations of the complaint with particular reference to damages. In the Story case the plaintiff furnished the jury a yardstick by which to measure its damages, and there were facts in evidence upon which “the extent of the damages as a matter of just and reasonable inference” could be approximated; in the instant case no basis for measurement is furnished the court. In the Story case the plaintiff and the defendants were competitors and the plaintiff occupied a position in relation to the defendants whereby it would naturally suffer damages as a result of violations by them of Section 2 of the Sherman Anti-Trust Act, and there was ample evidence from which the “fact of damage” could be logically and legally inferred. In the instant case the suit is not brought by competitors of the defendants and the plaintiff has alleged no facts from which the “fact of damage,” proximately resulting from the alleged illegal acts of the defendants, can be logically and legally inferred.
In citing C. E. Stevens Company et al. v. Foster & Kleiser Co. et al., supra, the plaintiff lays stress on certain language of the court to the effect that, while the allegations in that case with reference to damages were general, it could not be said that they were inadequate, and contends that there is an analogy between the allegations in the Stevens and those in the instant case. The facts in the Stevens case were as follows: The plaintiffs were engaged in the business of outdoor advertising, of procuring locations and erecting bill boards thereon for the purpose of the posting of bills and the painting of signs. The defendants were in the same line of business and were members of an association controlling 90% of the outdoor advertising in the Pacific Coast area. The action was for treble damages under the Sherman Anti-Trust Act, and the complaint alleged a conspiracy by the defendants to monopolize the business of bill posting by restraining interstate commerce in the transportation of posters, and alleged, as a part of the general conspiracy, local acts by the defendants done in an effort to prevent the plaintiffs from obtaining sites for bill posting. The case was heard on a motion to dismiss for failure to state a .cause of action. The motion was sustained by the district court, and also on appeal by the circuit court of appeals, 9 Cir.,
Upon appeal to the supreme court, the action of the lower courts was reversed and the motion to dismiss was overruled. The court did not set out all the allegations of the complaint in its opinion, and stated that it was contenting itself with sufficient allegations to indicate the question on which the case turned. It held, however, that the complaint sufficiently alleged a conspiracy in violation of Sections 1 and 2 of the Sherman Act and sufficiently alleged that the monopoly and restraint inflicted damage upon the business of the plaintiffs. The court said [
The Stevens case and the case at bar are not, with relation to damages, analogous. In the Stevens case the plaintiffs and defendants were competitors, and the causal connection, as shown by the complaint, between the alleged unlawful acts and the damage to the plaintiffs was apparent. Such is not true in the instant case.
Nothing would be gained by discussing Wheeler-Stenzel Co. v. National Window Glass Jobbers’ Ass’n, supra, Cilley v. United Shoe Machinery Co., supra, and Hale v. O’Connor Coal & Supply Co., Inc., et al., supra, cited in plaintiff’s second group of cases above referred to. In each of these cases the interested parties were competitors, and the respective complaints disclosed the fact that there was a definite causal relationship between the acts complained of and the alleged damages sustained. We have heretofore commented on the fact that where, in suits for damages under the Anti-Trust laws, the plaintiff and defendant are competitors, the causal relationship between violation and injury is frequently more plainly discernible than in actions where such is not the case.
The plaintiff has also cited Eastman Kodak Company оf New York v. Southern Photo Materials Company,
One of the questions in the case was whether there was any competent and legal proof upon which to base the measurement of the plaintiff’s damages. On this point, the supreme court quoted with approval the following language from the opinion of the circuit court of appeals: “The plaintiff had an established business, and the future profits could be shown by past experience. It •was permissible to arrive at net profits by deducting from the gross profits of an earlier period an estimated expense of doing business. Damages are not rendered uncertain becаuse they cannot be calculated with absolute exactness. It is sufficient if a reasonable basis of computation is afforded, although the result be only approximate.” [
This case is of no value to the plaintiff. Here the parties had been doing business previously, and the “future profits could be shown by past experience.” In the case at bar no “reasonable basis of computation is afforded.”
In count two, an attempt to charge a violation of the Clayton Act and of the Clayton Act, as amended by the Robinson-Patman Price Discrimination Act, 15 U.S.C.A. § 13, is made. It is alleged that the defendants have resorted to the merchandising technique of using “loss leaders” of *916 certain products, and more particularly plaintiff’s members’ strawberries, with the object and intent of destroying competition, and in that way controlling the sole outlet for strawberries and other food products; that the use of strawberries as "loss leaders” resulted in a price depreciation of the entire strawberry market, and an elimination of competition in the strawberry field; that the defendants having purchased the strawberries mentioned in the complaint from the plaintiff’s members, discriminated in price and caused a discrimination in price “between the different purchasers of the said strawberries throughout the United States of America who purchased from retail stores throughout the United States and in stores other than the retail stores” owned, operated, and controlled by the defendants, and that the effect of such discrimination was to substantially eliminate competition and tended to create a monopoly in the sale of strawberries; that after the defendants purchased the strawberries from the plaintiff’s members they caused them to be sold at a price below the purchase price, and discriminated against the purchasers of other and independent retail stores throughout the United States, which said independent retail stores were unable to meet the sacrificial prices at which the defendants sold the strawberries, and that the effect of this discrimination substantially lessened competition and tended to create a monopoly over the strawberry industry.
In connection with the foregoing allegations, numerous allegations contained in count one, including the one to the effect that the defendants handled 25% of plaintiff’s members’ strawberries in the years 1937 and 1938, are reiterated; and the damages are alleged and computed in the same manner as in count one.
The defendants contend in regard to count two, among other things, that the plaintiff has failed to state facts showing a violation of either the Clayton Act, or of the Clayton Act as amended by the Robinson-Patman Price Discrimination Act, and, with particular reference to the Clayton Act as amended, that the plaintiff’s assignors, being neither competitors of, nor purchasers from, the defendants, are not within the class of persons, in relation to the situation described in the complaint, who are entitled to relief undеr the Clayton Act as amended by the Robinson-Patman Price Discrimination Act. But we do not find it necessary to pass upon these questions, because, in our opinion, the allegations of the second count of the amended complaint are legally insufficient with particular reference to damages. Most of what we have said with regard to count one is equally applicable to count two. As in count one, so in count two, the plaintiff has failed to allege facts showing that its assignors were damaged in amounts susceptible of expression in figures as a proximate result of the alleged unlawful acts of the defendants. The plaintiff alleges that the defendants discriminated in price between the different purchasers of strawberries who purchased from retail stores other than those of the defendants. If plaintiff has here charged a violation of the law, insofar as the complaint shows, the persons proximately damaged by the illegal act would be those who were discriminated against, and not the plaintiff’s assignors.
Count three is based upon Section 3 of the Robinson-Patman Price Discrimination Act, 15 U.S.C.A. § 13a, in which count it is charged that the defendants resorted to the use of “loss leaders” as a means of price discrimination in certain products, and more particularly in plaintiff’s members’ strawberries, with the object and intent of destroying competition, and in that way controlling the sole outlet for plaintiff’s members’ strawberries, and that thereafter the defendants sold plaintiff’s members’ strawberries at unreasonably low prices and below the purchase price, for the purpose of destroying competition and eliminating competitors throughout the United States.
The allegation that the defendants handled 25% of the plaintiff’s members’ strawberries in the years 1937 and 1938 is reiterated, and also the allegations of counts one and two with reference to damages to plaintiff’s assignors.
The defendants contend, with particular reference to count three, that Section 3 of the Robinson-Patman Price Discrimination Act, 15 U.S.C.A. § 13a, upon which this count is based, is not an amendment of the Clayton Act and is not one of the AntiTrust laws within the meaning of Section 1 thereof, 15 U.S.C.A. § 12, but is a separate criminal statute, and that Section 4 of the Clayton Act, 15 U.S.C.A. § 15, providing for civil actions for treble damages for violation of the Anti-Trust laws, does not apply; and, also, that Section 3 of the Robinson-Patman Price Discrimination *917 Act, insofar as it prohibits sales at unreasonably low prices, is void for uncertainty. These are interesting questions, which, so far as we have been able to determine, have not been decided by the courts. However, we find it unnecessary to pass upon them here. As heretofore stated, we have concluded that the determinative question in the entire case, and on each count of the complaint, is whether or not it contains legally sufficient allegations with particular reference to damages to the business or property of the plaintiff’s assignors. What we have said in this connection with reference to count one is also applicable to count three; and, so far as the allegations of the complaint are concerned, if injury has proximately resulted to anyone by reason of the alleged unlawful acts of the defendants as charged in count three, it is not to plaintiff’s ass’gnors, but to the competitors of the defendants.
The point upon which we have decided this case, that is, the insufficiency of the complaint with particular reference to the allegations of damages to plaintiff’s assignors, was raised and argued in connection with the motions of the defendants for a bill of particulars and more definite statement, addressed to the amended complaint, but we declined to pass upon the point at the time, stating in our written opinion on said motions that all such arguments were addressed to the sufficiency of the complaint in regard to stating a cause of action, and that we would defer passing upon them until they were raised directly in a motion to dismiss, which motion counsel for defendants stated would be filed later. Louisiana Farmers’ Protective Union, Inc. v. Great Atlantic & Pacific Tea Company of America, Inc., et al., D.C.,
The motions to dismiss are sustained.