The opinion
FRANK, Circuit Judge
(dissenting in part).
I concur as to the second cause of action. I cannot agree as to the first cause of action:
The record facts plus judicial notice make it clear that the sale of used cars is indispensable to the business in new cars, the latter admittedly being in interstate commerce. An allegation that the impediment to the sales of used cars burdened the new car business is implicit in the complaint; 1 if a further allegation is necessary to make that fact explicit, plaintiff should be allowed to amend accordingly. The defendants cannot use the power (reserved in the contract), to cancel the contract in such a way as to accomplish an unlawful purpose, i. e., violation of the Sherman Act. And any important restriction on the place of sale of unused cars is, I think, prima facie so unreasonable as to violate the Sherman Act. On the other hand, a restriction of the place of sale of unused cars so as not unduly to prejudice other dealers might be reasonable; but the record facts are not sufficient to show that such is the case here. We should, I think, reverse in order to permit the plaintiff to amend if he so desires, by inserting more explicit allegations as to the burden on interstate commerce and (if it be true) that he intended to sell the used cars outside his “zone of influence” without the use of the name “Chevrolet.” The defendants then, at a trial, or by a motion accompanied by affidavits setting forth the facts more in detail, can raise 'the issue as to the reasonableness of their proposed restriction on the place of sale of used cars. If no adequate showing is made by the defendants on that issue, then I think the plaintiff should win, on the basis of the reasoning in United States v. General Motors Corp., 7 Cir., 121 F.2d 376 . Cf. Local 167 v. United States, 291 U.S. 293 , 54 S.Ct. 396 , 78 L.Ed. 804 ; Houston, E. & W. Texas Ry. v. United States, 234 U.S. 342 , 34 S.Ct. 833 , 58 L.Ed. 1341 ; Illinois Natural Gas Co. v. Central Illinois Public Service Commission, January 5, 1942, 62 S.Ct. 384 , 86 L.Ed. —.
Paragraph 34 of the complaint reads: “That by reason of the conspiracy of the defendant and each of them to restrain trade in used cars, the plaintiff has been damaged in that it was unable to liquidate its used cars; that its inability to liquidate its used cars prevented it from buying new Chevrolet automobiles and made it impossible for it to accept orders for new automobiles which it might otherwise have obtained; that its investments in buildings, alterations, leases and equipment were depreciated in value; and that it was injured in its business and property.”