Appeal and cross-appeal from the District Court of the United States for the Indianapolis Division of the Southern District of Indiana.

Action by the Ladoga Canning Company against the American Can Company. From the judgment rendered, both plaintiff and defendant appeal.

Affirmed.

Solon J. Carter, of Indianapolis, Ind., and James A. Ross, Austin V. Clifford, Harry T. Ice, Harold K. Bachelder, and William C. Bachelder, all of Indianapolis, Ind. (Matson, Carter, Ross & McCord and Bachelder & Bachelder, all of Indianapolis, Ind., of counsel), for Ladoga Canning Co.

L. A. Welles, John A. Garver, and Garrard Winston, all of New York City, and William H. Thompson, Albert L. Rabb, and [765] Thomas D. Stevenson, all of Indianapolis, Ind., for American Can Co. Before ALSCHULER, EVANS, and PAGE, Circuit Judges.

EVANS, Circuit Judge:

Ladoga Canning Company, hereinafter called plaintiff, brought this action to recover damages of American Can Company, hereinafter called defendant, for the alleged violation of section 2 of the Clayton Act (15 U. S. C. A., § 13). The cause was submitted to a jury, which found for plaintiff and assessed its damages at $30,000. Judgment was thereafter entered for $105,000, being three times the amount of the actual damage suffered by plaintiff plus $15,000 which the court found as plaintiff's reasonable attorneys' fees. Authority for the allowance of attorneys' fees and treble damages appears in section 4 of the Clayton Act (15 U. S. C. A., § 15).

Both sides appealed from the judgment thus entered. Defendant assigns numerous errors, while plaintiff, on its appeal, assigns but one, to wit, the inadequacy of the sum allowed as attorneys' fees.

Defendant's appeal No. 4318. Defendant argued, principally, the assignments of error arising out of the court's failure to direct a verdict in its favor at the close of all the testimony. To better understand the contentions, a short statement of the facts is necessary. One phase of a companion case, similar as to issues, was before this court on a previous appeal. We certified certain questions to the Supreme Court where a ruling favorable to plaintiff's contention was announced. Van Camp & Sons Co. v. American Can Company, 278 U. S. 245, 49 S. Ct. 112, 73 L. Ed. 311, 60 A. L. R. 1060. (The Van Camp Company in that appeal is not the Van Camp Packing Company hereinafter frequently mentioned.) A reference to that opinion is made for brevity's sake, as it discloses the general nature of the controversy and the character of the discrimination with which the defendant is here charged. Plaintiff's action is predicated on two sections (2 and 4) of the Clayton Act (15 U. S. C. A., §§ 13, 15), which read:

"It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly to discriminate in price between different purchasers of commodities, which commodi

ties are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, where the effect of such discrimination may be to substantially lessen competition or tend to create a monopoly in any line of commerce: Provided, That nothing herein contained shall prevent discrimination in price between purchasers of commodities on account of differences in the grade, quality, or quantity of the commodity sold, or that makes only due allowance for difference in the cost of selling or transportation, or discrimination in price in the same or different communities made in good faith to meet competition: And provided further, That nothing herein contained shall prevent persons engaged in selling goods, wares, or merchandise in commerce from selecting their own customers in bona fide transactions and not in restraint of trade.

"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."

Plaintiff, an Indiana corporation, is engaged in canning food stuffs and selling its products. Defendant, a New Jersey corporation, is a manufacturer engaged among other things in making and selling tin cans used as containers by packers of canned goods. It operates several factories, one being located at Indianapolis. The Van Camp Packing Company is a packer of canned goods, a concern much larger than plaintiff. It packs and sells goods, some of which were sold in competition with plaintiff, and some of which (different products) were not in competition with plaintiff.

In the canning business the territory between the Rockies and the Alleghenies was known as the central district. It was served by between 1,000 and 1,500 canneries, about one-half of which purchased their tin can containers from defendant. About 30 percent of defendant's $110,000,000 annual business came from this territory. Van Camp's requirement was between 3 percent and 4 percent of defendant's business in sanitary cans-the total number of sanitary cans manufactured annually being over two and a quarter billion. Plaintiff purchased sanitary cans of defendant in the amount of [766] $687,951 during the period in question. Van Camp's purchases, during the same period, amounted to $11,206,702. In addition, Van Camp purchased of defendant over $7,000,000 of other kinds of cans, principally milk cans.

Plaintiff charged defendant with price discrimination in selling its cans to Van Camp; that such price discrimination gave Van Camp a great advantage over its competitors, including plaintiff; that the effect of such price discrimination was substantially to lessen competition in the line of business in which Van Camp was engaged and tended to create a monopoly in Van Camp in certain lines of commerce. Plaintiff also asserted that it suffered damages because of such price discrimination in favor of its competitor.

Defendant denied that it discriminated in favor of Van Camp but admitted it sold cans to Van Camp at a price less than it sold them to plaintiff. It justified the difference in price on three grounds: (a) Because of the volume of Van Camp's business; (b) because it feared Van Camp, unless given the price demanded, would go into the business of manufacturing tin cans; (c) because one of defendant's competitors was endeavoring to secure Van Camp's business and the reduction in price was therefore made "in good faith to meet competition."

Defendant also defended on the ground that plaintiff suffered no damage. It also denied that such price discriminations, if they were discriminations, substantially lessened competition or tended to create a monopoly in any line of commerce. It also defended on the ground that most of Van Camp's business was intrastate business and the interstate business was so small as to have little or no bearing upon the line of commerce in which their purchasers were engaged, and that such interstate business was not in a line in which plaintiff was engaged.

At the close of all the testimony, defendant moved for a directed verdict in its favor. The motion was overruled, and the cause was submitted to a jury under instructions apparently satisfactory to both sides. In addition to assigning error for failure to take the case from the jury, defendant also complained because of the admission of certain evidence over its objection. These contentions will be considered separately.

[1-3] Discrimination. The evidence showed beyond dispute that defendant sold Van Camp tin cans at much less than was charged plaintiff or any other packer. The extent of the difference is a matter of some dispute. Plaintiff included certain allowances and rebates which defendant refused to admit as items properly included within the term "prices." To illustrate, appellant allowed Van Camp $65,000 for advertising purposes. It allowed a credit of $100,000 on cans purchased immediately preceding the execution of the contract complained of. It gave Van Camp an allowance of $1.25 per thousand packer's cans, payable monthly. Other allowances were made on different sized cans. Defendant rented to packers, machines for closing the cans when filled. It charged its lessees an annual substantial rental therefor, but permitted Van Camp to use its machines without rental. Defendant paid these rebates or allowances, although Van Camp was at the time indebted to it. If all of the allowances for which plaintiff argued were included in the price deductions, they aggregated about 18 percent of the selling price. If certain items objected to by defendant were excluded, they amounted to approximately 11 percent.

The jury was justified in finding, or at least there was evidence sufficient to support such findings, that the discount amounted to 18 percent of the price paid by Van Camp; that Van Camp purchased during the period covered by the suit some $18,000,000 worth of cans; that the cost of the tin can is an important item in packing costs, amounting to nearly one-third of the entire cost and in some instances equals or exceeds the cost of the food material placed in the can; that 22 cents per case was the usual profit to the packer on winterpacked goods, and the price discount granted Van Camp was a material factor in the sale of the finished product.

The jury was also justified in finding that Van Camp's growth after the execution of its 1921 contract was unusual and far exceeded the growth of the canned-goods business generally throughout the country. We think, too, the evidence would sustain a finding that such increased growth was in considerable part due to the favors Van Camp thus received from defendant in the purchase of its cans.

As to defendant's attempted justification of the difference in price charged plaintiff and that charged Van Camp, the jury might well have found that, while Van Camp purchased many more cans than did plaintiff, defendant advertised widely the fact that all its cans of like character and size were sold [767] at the same price to all customers, and that all prices were f. o. b. Indianapolis.

Defendant made two contracts with Van Camp on the same day, one a secret agreement which contained provisions for rebates and allowances not found in the simultaneously executed agreement on the same subject. Defendant told plaintiff and all other purchasers, save Van Camp, that its prices were the same to all, and it did not permit its own sales force to know of the secret agreement with Van Camp. From these findings the jury could have readily found that defendant did not in good faith cut its price to Van Camp because of the latter's volume of business.

Defendant's argument that it feared a rival might take away the Van Camp business and, therefore, the discrimination was justifiable because made in good faith to meet competition, is not supported by persuasive testimony. Likewise, its asserted fear that Van Camp might go into the tin can producing business could well have been rejected by the jury as its reason for the favoritism shown Van Camp. While a jury might perhaps have found for defendant on both of these issues, the evidence was such as to call for their submission to a jury.

We fully agree with defendant's counsel when they say that the executive officers of the manufacturing company and not a jury must decide whether the producer shall or shall not make price concessions to large consumers whose large demands make output more constant and thus lessen costs.

But the right of defendant's officers to determine the necessity of granting price reductions to a large customer is one thing. The right (and the duty under the statute) to inquire whether a price reduction was in fact made because of volume of business or to meet competition presents an entirely different issue. To determine this last issue, the jury was required to weigh the evidence offered by defendant, which sustained its protestations that the prices were reduced to Van Camp because of the size of its business or to meet competition, against the evidence tending to show no necessity for such reductions. An issue was presented where defendant's protestations of good faith must be weighed against the facts which tended to controvert such protestations.

Van Camp's business was large. Yet it was only about 3 percent of defendant's total business. In the central section defendant served between 1,000 and 1,500 canners. The requirements of no two of them were the same. They all bought f. o. b. Indianapolis and they were all assured by defendant that no competitor was getting a different or a better price than they were.

Perhaps the most persuasive bit of evidence in the record disputing defendant's asserted justification for the discrimination allowed Van Camp came from its own acts. It loudly advertised and stoutly maintained that prices were the same to all. If so, wherein lies its justification for the secrecy surrounding its price rebate contract with Van Camp? We have found none. It is unusual, to say the least, for a company of defendant's size to deal with a customer like Van Camp, engaged in a competitive business, to make two contracts on the same day, one binding and the other not, the contract not binding being similar to the one entered into with all of Van Camp's competitors. Why should defendant conduct its business with Van Camp other than in the usual ordinary way? It billed its goods to Van Camp as though Van Camp was purchasing as any other packer. It made rebate payments at the end of each month to Van Camp, although Van Camp was at the same time largely indebted to it for merchandise sold. Was this secrecy and this widespread misstatement as to uniformity of price consistent with its now asserted justification that prices to its customers were based on volume of business? That defendant's price discrimination was due to its desire to retain Van Camp's business may be conceded. Such an object was perfectly justifiable, but under the statute it could not be attained through price discriminations save as the volume of the latter's business justified it, or unless the discounts were granted to meet competition. Setting to one side the last-named justification for the discrimination, as we must, in view of the jury's rejection of it, defendant's course, if approved, must find support solely in the volume of Van Camp's business. But if the volume of Van Camp's business was the basis of reduced prices, should not such prices have been available to all customers who bought cans of like amount? Were not all canners entitled to know the amount of purchases necessary to obtain the saving in cost of cans? Without such information Van Camp's competitors were not in the same position to plan for future business, and it was this concealment of fact, coupled with defendant's assurance that no price reductions were made because of the size or volume of business, that cast discredit on defendant's after-the-act protestation that the discriminations were made because of volume of business. [768] Defendant's efforts to secure or obtain business were limited by the statute. It could not rebate or discriminate in price save as a purchaser gave an order, the size of which justified the price reduction. Ordinarily a manufacturer, in fixing prices based on volume of business, would publish a price list from which all customers would learn the amount of purchases necessary to secure the best prices. Defendant published a price list, but it was a false one. Defendant showed favoritism to Van Camp, and the jury, upon the evidence before it, was justified in finding that such favoritism was not dependent on the volume of the latter's business.

Concealment and misrepresentation alone and in themselves did not constitute plaintiff's cause of action. They did, however, discredit defendant's justification to such an extent that such issue became one of fact for the jury. At the close of all the testimony a situation was presented where defendant's statement, made before litigation was commenced, to the effect that it sold its cans to all at the same price, f. o. b., Indianapolis, disputed its later statement made after suit was begun that the prices to Van Camp were different