Plaintiff sued to recover damages alleged to have been incurred by reason of defendants’ violation of the Sherman Anti-Trust Law, 15 U.S.C.A. § 1, claiming injury to its business and property under Section 4 of the Clayton Act, 15 U.S.C.A. § 15. At the conclusion of plaintiff’s evidence, defendants moved for a directed verdict upon two grounds, — (1), that plaintiff had failed to prove damage, and, (2), that plaintiff had participated in the alleged illegal conspiracy and its execution and was, therefore, in pari delicto with defendants. The court allowed the motion upon the first ground and found it unnecessary to pass upon the second.
Plaintiff is a jobber, reselling gasoline to other jobbers and to retailers and consumers. It purchased from the W. H. Bаrber Company, who in turn bought from the Tidewater . Oil Company. Barber bought at % cent per gallon below the published tank car market and resold to plaintiff at the low of the same market. Plaintiff was assured a margin of 5% cents per gallon betwеen the tank car price, plus freight, and the normal service station price established from time to time by the Standard Oil Company of Indiana. In January, 1936, this margin was raised to 5% cents.
Plaintiff resold gasoline in cars to other jobbers at the average of the high and low quotations of the tank car spot market published daily. It resold to dealers at tank wagon rates, which, until August, 1936, were determined by deducting a fixed quantity discount, (Q.D.A.) from established retail station prices. Subsequent to adoption of the so-called Iowa plan, August 29, 1936, a dealer’s tank wagon price was posted and plaintiff sold at this figure. It resold to consumers at service station quotations or at the consumers’ tank wagon price. The rate at which it sold to consumers and dealers was fixed at all times by the posted prices of the market leader, Standard Oil Company of Indiana, which sells more gasoline than any other company in the middle west, having widespread marketing facilities and reaching almost every community. United States v. Socony-Vac-uum Oil Co. et al., 7 Cir.,
The inсreases in tank car prices com-, plained of came in March, 1935, and by June 14 of that year had reached 1% cents per gallon; during this period, plaintiff’s price to dealers and consumers had correspondingly increased l-3/10ths сents. This situation abided until January, 1936, when plaintiff’s cost increased % cent and its selling price a like amount. During 1936, plaintiff’s buying price was reduced .625 of a cent and its selling price .6 of a cent. In November, 1936, its cost increased % of a cent and in Dеcember its selling price increased 3/10ths of a cent.
Plaintiff introduced evidence of the total cost of all gasoline purchased under the alleged illegally increased prices and rested without proof of realization upon sales. It apparently believed that proof of increased cost, due to an illegal fixing of prices on the part of defendants, was sufficient to justify recovery of damages under the Clayton Act without showing whether it had in faсt escaped damage by fixing equivalently larger selling prices, thus passing on the increased cost to its purchasers.
Its proof further disclosed that, in the meetings and conferences as a result of which stabilization of prices cаme about, resulting in increased cost of gasoline, plaintiff’s officers participated and cooperated; that they were well advised that the program was intended to establish an increased tank car quotation in ordеr to maintain retail, prices in its territory and that plaintiff’s officers requested its employees to cooperate with the participants in pro *970 moting the plan. The letters written by its officers and the testimony clearly establish that plaintiff was an active agency in working out with defendants and others the scheme of which it now complains and in raising and maintaining prices from which it now claims damage has accrued to it.
Defendants were among those indicted and conviсted, in the District Court of the Western District of Wisconsin, of violation of Section 1 of the Sherman Act, 15 U.S. C.A. § 1, affirmed in United States v. Soco-ny-Vacuum Oil Co., Inc.,
The Act, 15 U.S.C.A. § 15, provides that one injured in his business or property by reason of anything forbidden in the anti-trust laws may sue and recover threefold the damages sustained. The statutes were intended to advance the public welfare by promoting free competition and preventing undue restriction of trade and commerсe. But by the provision which gives to one damages for his personal benefit, no action is created because of the conspiracy alone; the right of recovery by a private party is limited to the damages actually incurred by him. He must plead and p'rove a pecuniary loss of or injury to his business or property. Sidney Morris & Co. v. National Ass’n of Stationers, Office Outfitters & Manufacturers, 7 Cir.,
The cases cited in support of plaintiff’s view that it might recover upon showing merely wrongful increase of prices to purchasing jobbers, irrespective of whether the latter correspondingly raised their retail prices or passed on the additional cost to the consumer, are largely those having tо do with recovery of improper freight charges under the Commerce Act. But, in Pennsylvania Railroad Company v. International Coal Mining Company,
That the action here is more nearly within those brought under the Commerce Act to recover damages because of illegal discrimination is evident from the language óf Pennsylvania Railroad Com
pany
v. International Coal Mining Company, supra, and Davis v. Portland Seed Company,
In other words the Clayton Act does not permit recovery by plаintiff in causes such as this for unlawful prices as such but authorizes recovery only of pecuniary loss to property or business. The one complaining need not sue the person to whom he has paid the illegal prices. He may reсover from any member of the conspiracy, if he shows that the direct effect is to injure him in his business or property and produces facts from which such injury may be ascertained. Inasmuch as plaintiff has wholly failed to prove any loss to its рroperty or business but rather has shown, by all reasonable inferences, that the increased cost of which it complained was passed on to the ultimate consumer, the court rightfully directed a verdict for defendant. Weeks v. Bareco Oil Co., 7 Cir.,
It was not necessary for the District Court to pass upon the further question raised, nor is it essential here, but we think it not amiss to say that the court would have been justified in directing a verdict upon the second ground, namely, that plaintiff participated in the illegal conspiracy. This combination was stamped with disapproval by the Supreme Court in United States v. Socony-Vacuum Oil Co., supra,
Having participated in this illegal undertaking, plaintiff may not recover; where parties stand in pari delicto, the law leaves them where it finds them. Maltz v. Sax et al., 7 Cir.,
We find no error in the exclusion of evidence. That offered and refused tended to impeach the integrity of the conviction upon which plaintiff relied or was clearly irrelevant or immaterial.
The judgment is affirmed.