323 Mass. 48 | Mass. | 1948
This suit is here on appeal of the plaintiff from a final decree dismissing the bill after the sustaining of separate demurrers of the four defendants. The plaintiff also appealed from only one of the interlocutory decrees sustaining the demurrers, but the others are "open to revision” upon the appeal from the final decree. G. L. (Ter. Ed.) c. 214, § 27. Bressler v. Averbuck, 322 Mass. 139, 140. The several demurrers are rested upon various grounds, but a ground common to all is that the bill states no cause of action.
The allegations of the bill are in substance these: The plaintiff conducts a retail liquor business. The plaintiff was obliged to purchase from the defendant United Liquors, Ltd., large quantities of a certain brand of rum at an average wholesale price of $3.01 per four fifths of a quart in order to procure from that defendant other brands of liquors. The plaintiff has been able to sell only a small part of this rum and cannot sell it at a price based on the wholesale cost plus a reasonable mark up. In order to recoup part of its loss, the plaintiff submitted to the defendants Boston Herald-Traveler Corporation and Post Publishing Company copy advertising the rum for sale at $1.89 per four fifths of a quart. Both newspapers refused to advertise that brand of rum at that price. Failure of these defendants to accept the plaintiff’s advertising copy "would substantially affect” the plaintiff’s plan to dispose of its rum. The plaintiff “was advised by an officer” of the defendant United Liquors, Ltd., that "an agreement had been entered into” among that defendant, the three other defendants, National Distillers Corporation of New England, Boston Herald-Traveler Corporation, and Post Publishing Company, and “other widely circulated newspapers doing business in Boston” whereby "the newspapers,” including the two
The prayers are that the defendants United Liquors, Ltd., and National Distillers Corporation of New England be ordered to instruct the newspaper defendants “to the effect that they have no objection to the advertising” by said newspapers of the rum at the prices submitted by the plaintiff; that the newspaper defendants be ordered to accept the plaintiff’s advertising at prices for the rum to be stipulated by the plaintiff; and for damages and further relief.
The plaintiff argues that this refusal was in consequence of an unlawful “agreement” or combination among all the defendants and including newspapers not defendants, and that damage will result to the plaintiff. We agree that even if a newspaper, acting alone, is commonly at liberty to reject such advertising as it sees fit (see Commonwealth v. Boston Transcript Co. 249 Mass. 477), it and its associates may be amenable to suit, as any other parties would be, if they have joined in an unlawful combination causing harm to the plaintiff through the peculiar force of numbers. See Des-Lauries v. Shea, 300 Mass. 30, 33; Comerford v. Meier, 302 Mass. 398, 401; Fleming v. Dane, 304 Mass. 46, 49-51; Weiner v. Lowenstein, 314 Mass. 642, 646-647; Restatement: Torts, § 765. But, to begin with, we find in the present bill no sufficient allegation of combination. Averments of crucial .facts in a pleading should be clear, direct, and unequivocal. An allegation merely that the party pleading has been informed or,as here " advised" of such a fact, followed in the remainder of the pleading by references assuming the truth of the fact but without any express allegation that it is true, is not enough as againts ademurrer. Dealtry v. Selectmen of Watertown, 279 Mass. 22, 27. I. T. S. Rubber Co. v. Essex Rubber Co. 281 Fed. 5, 10. See Fuller v. Lovell, 304 Mass. 542, 546; Mairs v. Madden, 307 Mass. 378, 380-381; Carson v. Gikas, 321 Mass. 468. In the second place, even if the fact of combination were sufficiently alleged, we think there are no such allegations of the charac- ter, purpose, and effect of the combination as to make out a prima facie case against any of the defendants and to call for an answer. The only harm alleged is that the two news- papers carried out their agreement not to advertise the particular brand of rum at less than $3.81 per four fifths of a fifths of a
The bill does not allege that any or all of the defendants have created a monopoly at common law. There is nothing to show that they have acquired or will acquire in the rum trade a dominating influence tending to suppress competition. Commonwealth v. Dyer, 243 Mass. 472, 486. Foster
Finally, we do not agree with the plaintiff that the bill can stand on the theory that the several defendants, or some of them, have induced the newspapers not to enter into a business relation with the plaintiff. See Restatement: Torts, § 766. It is plain that the bill was not drawn on any such theory. It does not allege that any defendant induced or caused any other defendant not to do what it would otherwise have done. So far as appears each defendant was as much an originator and as much an active moving party in bringing about the “agreement” as any other defendant.
Interlocutory decree affirmed.
Final decree affirmed with costs.
See G. L. (Ter. Ed.) c. 93, §§ 14A-14D, as inserted by St. 1937, c. 398 as amended.