Transcript of Record — AB Small Co. v. Lamborn & Co.

Supreme Court brief1925

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1923

No. 399

THE A. B. SMALL COMPANY, PLAINTIFF IN ERROR,

v8.

LAMBORN & COMPANY

IN ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR :

THE SOUTHERN DISTRICT OF GEORGIA

INDEX

Original Print

Record from U. S. district court for the southern district of

oS OPT Terr rl Sr ery Tia TT eee CERT E Thee re eee 1 1

PAO awa ne eckpinea Ceeds cd baaeaabas Oecd sasaes sa hasses 1 1

Exhibit A to Petition—Contract No. 672 between Lam-

born & Co. and A. B. Small Co., April 30, 1920...... 14 9

Exhibit B to Petition—Contract No. 1080 between Lam-

born & Co, to A. B. Small Co., May 7, 1920.. i 15 10

Exhibit C to Petition—Invoice, Lamborn & Co. ra A. B.

Small Oo., TANUATY BS, TAL oc ccvcecccsecacavesesas 16 12

Exhibit D to Petition—Statement of transportation

PCP O LE CLe CRIP ERUPT RE CEO e eT sais 17 16

EOE OCR TCR Pecuchne sence Arte cer 18 16

MT FO DCN a 6095 6's ands cake cdcbnccanecoaes 24 20

Demurrer to amendment to petition.................. ‘ica 28 23

COPGRE OVOTTUUNE GOMUPTSS 0 occas cicccrcssccccccccases 2814 23

OT See PoE rere eeee reer een en Ce Eee EP PTT ee a 29 24

IN Ti I oi 65.68 406d 64.640 45 0440 cw Oa CO ESA CORORS 50 38

PIE IEE BOG GUGINO cis ok cess is cee teecccccccaceds 55 41

NN SRT Ee ERT TO ee ere P 65 48

Jupp & DETWEILER (INC.), PRINTERS, WASHINGTON, D. C., DECEMBER 26, 1923

INDEX

Demurrer to amendment to answef......--.+++-seeserrees

Order sustaining demurrer to amendment to answer

Amended judgment on demurrers to answeI.....-----+++>

Defendant's exceptions... ......-+--e+eseeeree reser erecees

Wem oc cccccccccccccccncsccsnccncccsecscncsecaccosces

BOABMORE 2. ccccccccccccccccesccccccccecsccccsocccnssees

Petition for writ of error......--..+seee reser ee eseesteees

Assignment of errors......--++-esseeesse seer sessesetsees

Supersedeas bond.......-+++++++- (omitted in printing)...

Bill of exceptions. .......-.cceeeeeeeseeccceeescerseecces

Correspondence ......--.sseeesseeeereeterseeeseseees

Testimony of O. H. Lamborn......-+-+++-++eereesres

Exhibit to Lamborn’s Testimony—Extracts from

Lamborn’s books showing resale of sugars

BhApped ...ceceececsccccenceccersccccsecscsces 109

Testimony of John G. Ruan......---++++eeseeeeereeee 112

J. B. Wates.....ccccccccccccccccccccces 115

R. B. Small... .....ccccccescccccseccces 117

W. EB. Small........-ececcecees txaceunk ~ ae

H. R. Alexander..........-eseeeeeeeeee 120

Exhibit in Evidence—Tabulation of refined sugar

prices, July 1-November 30. ......0:0+++seeeeeeeeees 123

Order directing verdict for plaintiff........+--++++-+5 124

Order settling bill of exceptions... ....-.0-+eeseeeeeeeeres 126

Order allowing writ of error......-. 00s ee eeee ee eee reese 127

Wit Of CFTOP.... ccc cece cece cc ce sacccerecceerecesscsess 12

Preecipe for transcript of record........+++++++eeeeeeereee 130

Order extending time..........--eee cere seen eeeeeererenes 132

Clerk’s certificate... 0.0.0... cece cence eee eee nee eeeeneees 133

Writ Of EFTOF..... ccc cccceeccccece (omitted in printing).. 184

Citation and service..........++++- (omitted in printing)... 187

{ fol. 1] IN THE

DISTRICT COURT OF THE UNITED STATES FOR THE

WESTERN DIVISION OF THE SOUTHERN DISTRICT OF

GEORGIA

LaMBoRN & Company, a Copartnership, Plaintiff,

vs.

Tue A. B. SMALL Company, Defendant

Peririon—Filed Sept. 12, 1921

To the Honorable the District Court of the United States for the

Western Division of the Southern District of Georgia:

The petition of A. H. Lamborn, G. P. Tameling, H. B. Hutchins,

N. N. Keen, George H. Logan, Karl P. Lindgren, C. C. Riggs, C. G.

Troup, W. V. Wood, B. W. Dyer, and Victor R. Hess, copartners

using the firm name and style of Lamborn & Company, respectfully

shows:

First Count

{fol.2] 1. That A. H. Lamborn is a citizen and a resident of the

State of New Jersey; G. P. Tameling is a citizen and a resident of the

State of New York: H. B. Hutchins is a citizen and a resident of

the State of New Jersey; N. N. Keen is a citizen and a resident of

the State of New Jersey; George H. Logan is a citizen and a resi-

dent of the State of New Jersey; Karl P. Lindgren is a citizen and

a resident of the State of Pennsylvania; C. C. Riggs is a citizen and

a resident of the State of New Jersey; C. G. Troup is a citizen and a

resident of the State of New Jersey; W. V. Wood is a citizen and a

resident of the State of New Jersey; B. W. Dyer is a citizen and a

resident of the State of New York; and Victor R. Hess is a citizen

and a resident of the State of New York; and that petitioners are

copartners under the firm name and style of Lamborn & Company.

2. That the A. B. Small Company, hereinafter called the defend-

ant, is a corporation duly organized and existing under the laws of

the State of Georgia, having its office and place of business in the

City of Macon, County of Bibb and State of Georgia, and in the

Western Division of the Southern District of Georgia; and for the

purpose of jurisdiction is a citizen of the State of Georgia.

3. That this suit is between citizens of different States and the

amount in controversy, exclusive of interest and costs, exceeds the

sum of Three Thousand Dollars.

4. That under date of April 30, 1920, petitioners and defendant

executed in duplicate, and each delivered to the other, a certain agree-

ment, a copy of which is hereto attached, marked “Exhibit A” and

made part hereof.

1—399

= peantonnerce . rE ORE OSES

5. By the terms of said agreement your petitioners sold to defend-

ant, and defendant bought from petitioners, one hundred and fifty

(150) barrels of standard Fine Granulated sugar on the basis of

25.50 cents per pound f. o. b. Savannah Refinery, Port Wentworth,

Georgia.

[fol.3] 6. By the terms of said contract, shipment of said sugar

was to be made by petitioners between July 15th and October 1,

1920; the particular date or dates of shipment within said period to

be at seller’s option, subject to delay if any.

7. That under date of May 7, 1920, petitioners and defendant

executed in duplicate, and each delivered to the other, a second cer-

tain agreement, a copy of which is hereto attached, marked “Exhibit

B” and made part hereof.

8. By the terms of said second contract, petitioners sold to defend-

ant, and defendant bought from petitioners, three hundred (300)

barrels of standard Fine Granulated sugar on the basis of 25.50

cents per pound f. o. b. Savannah Refinery, Port Wentworth, Georgia.

9. By the terms of said second contract, shipment of said sugar

was to be made by petitioners in equal quantities monthly, beginning

the last half of July and continuing through August and September,

1920, if possible; but at seller's option of shipping to suit seller's

convenience during the period mentioned, subject to delay if any.

10. Under both of said contracts, the terms of payment for said

sugars were to be cash before delivery less two (2) per cent, or cash

in seven (7) days after delivery less two (2) per cent, according as

the seller’s credit department might approve the one or the other

mode of payment.

11. By the terms of both of said contracts, petitioners agreed to

furnish said sugars packed in barrels or bags, but reserved the option

of shipping no more than fifty per cent (50%) of contract in 100-

pound bags; and agreeing but not guaranteeing to furnish 2, 5, 10,

and 25-pound bags at the ruling differential above Fine Granulated

basis if desired by the trade, provided said packages are obtainable.

12. Under the general custom and usage prevailing in the sugar

trade under which said two above mentioned contracts were made, the

[fol. 4] sugar which petitioners contracted to sell, and defendant

contracted to buy, might be furnished either in barrels containing

approximately 350 pounds net sugar, or in 100-pound bags, and

when shipped in such bags was known and regarded as in bulk;

and according to said general custom and usage said sugar might be

packed in 2, 5, 10, or 25-pound bags or packages, which smaller

packages would be enclosed in 100-pound bags, and when so packed

the sugar would be listed and referred to so as to indicate the num-

ber and weight of the several smaller packages. At the time of the

performance of the two above mentioned contracts the ruling dif-

ferential above Fine Granulated sugar, the basis named in the con-

' . ‘ 5 poe

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rt ole sy

tract, where the sugar was furnished in 2, 5, 10, or 25-pound bags

packed as hereinbefore referred to, was as follows:

100-pound bag containing 4-25-lb. bags (4/25’s), 20/100 of a cent

er lb.

: 100-pound bag containing 10-10-bags (10/10’s), 30/100 of a cent

er lb.

F 10)-pound bag containing 20-5-lb. bags (20/5’s), 40/100 of a cent

per lb.

13. By the terms of the two contracts hereinbefore referred to, the

sugar was purchased by defendant of petitioners f. o. b. Savannah

Refinery, Port Wentworth, Georgia, the contract further providing

that if shipment is made freight prepaid, the ruling prepaid freight

basis to destination in effect on the date of shipment will govern.

During the months of July and August, 1920, the freight rate from

Port Wentworth to Macon, Georgia, on sugar packed in barrels

amounted to .269 of a cent per pound; on sugar packed in bags .255

of acent per pound. During the months of September and October,

1920, the freight rate from Port Wentworth to Macon, Georgia, on

sugar packed in barrels amounted to .337 of a cent per pound; on

sugar packed in bags .317 of a cent per pound.

14. Defendant furnished shipping instructions and assortments

as contemplated by said contracts for the first or July shipment of

sugar, to-wit: 50 barrels under the contract dated April 30, 1920,

and 100 barrels under the contract dated May 7, 1920.

15. Petitioners shipped said sugar in accordance with said ship-

ping instructions, and defendant received and accepted same and

paid therefor in accordance with the contracts.

16. During the period provided by said contracts, petitioners

requested and defendant furnished shipping instructions and assort-

ments as contemplated by said contracts for the August shipment-of

sugar under said contracts, to-wit: 150 barrels, being 50 barrels

under contract dated April 30, 1920, and 100 barrels under contract

dated May 7, 1920.

17. Petitioners duly forwarded said one hundred and fifty (150)

barrels of sugar in accordance with the said contracts and the ship-

ping instructions given by defendant.

18. But upon the arrival of the said sugar at its destination

[fol. 5] the defendant failed and refused to accept, receive or pay for

the same and notified petitioners that it would not accept the said

sugar; and at the same time also notified petitioners that it would

not give any further shipping instructions or assortments as pro-

vided in the contracts and would not accept any additional sugar

which might be shipped by petitioners under the said contracts, and

directed petitioners not to ship any additional sugar, the said de-

fendant repudiating said contracts.

19. And the said defendant continually declined to accept and pay

for the one hundred and fifty (150) barrels of sugar shipped in ac-

cordance with its said instructions, and failed and refused to give any

additional instructions or assortments for the balance of the sugar

purchased under the said two contracts, and at no time during the

period provided in said two contracts respectively for the delivery of

said sugars, furnished petitioners any shipping instructious or as-

gortments, but continually refused so to do.

20. During the period provided for in the said two agreements

for the shipment of said sugars your petitioners requested the said

defendant to furnish shipping instructions and assortments, but the

said defendant failed and refused so to do.

21. In the meantime, and since the dates of said two respective

agreements, the market value of sugar had materially declined.

22. Petitloners further, and within the time provided in the said

two contracts fespeetively for the shipment of said sugars, notified the

said defendant of their readiness to ship the said sugar and again

requested shipping instructions and assortments and notified de-

fendant that any further delay in furnishing the same would consti-

tute a breach of its contract. and that petitioners would proceed to

sell the said sugar for its account and at its risk and hold it for the,

difference between the contract price and the prices obtained on such

resale.

[fol. 6] 28. That the sad defendant persisted in its failure to

furnish shipping instructions and assortments, which it had agreed

to furnish when requested, and denied any liability wnder the said

two agreements above mentioned.

24. At no time prior to the first day of October, 1920, when the

contract time for shipment of the said sugars under said contracts

respectively expired, nor on said date, nor thereafter at any time

did the said defendant furnish to petitioners any shipping instruc-

tions or assortments for the said sugars.

25. With, reasonable promptness after October 1, 1920, your

petitioners resold the said three hundred (300) barrels of sugar for

the account of the said defendant and at its risk, and acting for this

purpose as its agent, first giving to the said defendant notice of its

intention to resell, notice of the prices at which petitioners had an

opportunity to resell, and first giving to the said defendant an oppor-

tunity to furnish a better bid.

26. Said defendant furnished no bid for said 300 barrets of sugar,

or any part thereof. in response to petitioners’ notice and continued

to refuse to accept, take and pay for the 150 barrels of sugar shipped

by petitioner in accordance with its shipping instructions.

27. Petitioners attach hereto and make a part hereof an itemized

statement, marked “Exhibit C”, showing the several purchasers at the

resale of the said sugar, the price paid therefor, the several quantities

ESRI EPI ERIE Re LIE FT ERE ER Ser te —_ . : moe

sold by peiitioners to each purchaser, the dates of resale, and the ex-

penses incident thereto, all of which said expenses were reasonable,

proper and necessary. <A copy of said statement has been duly fur-

nished by petitioners to the said defendant.

28. The difference between the contract price of said three hun-

dred (300) barrels of sugar and the price obtained therefor on the

(fol. 7] resale, together with the expenses incident thereto, was the

sum of $15,218.14, as is shown by the statement hereinbefore re-

ferred to.

Wherefore, petitioner prays judgment against the said The A. B.

Small Company, defendant, for the principal sum of Fifteen Thou-

sand, Two Hundred Eighteen and 14/100 ($15,218.14) Dollars, as

well as for lawful interest thereon at the rate of seven per cent.

(7%) per annum.

[fol. 8] Second Count

1. That A. H. Lamborn is a citizen and a resident of the State

of New Jersey; G. P. Tameling is a citizen and a resident of the

State of New York; H. B. Hutchins is a citizen and a resident of

the State of New Jersey; N. N. Keen is a citizen and a resident of

the State of New Jersey; George H. Logan is a citizen and a resi-

dent of the State of New Jersey; Karl P. Lindgren is a citizen and

a resident of the State of Pennsylvania; C. C. Riggs is a citizen and

a resident of the State of New Jersey; C. G. Troup is a citizen and

a resident of the State of New Jersey; W. V. Wood is a citizen and

a resident of the State of New Jersey; B. W. Dyer is a citizen and a

resident of the State of New York; and Victor R. Hess is a citizen

and a resident of the State of New York; and that petitioners are

copartners under the firm name and style of Lamborn & Company.

2. That The A. B. Small Company, hereinafter called the defend-

ant, is a corporation duly organized and existing under the laws of

the State of Georgia, having its office and place of business in the

City of Macon, County of Bibb and State of Georgia, and in the

Western Division of the Southern District of Georgia; and for the

purpose of jurisdiction is a citizen of the State of Georgia.

3. That this suit is between citizens of different States and the

amount in controversy, exclusive of interest and costs, exceeds the

sum of Three Thousand Dollars.

4. That under date of April 30, 1920, petitioners and defendant

executed in duplicate, and each delivered to the other, a certain

agreement, a copy of which is hereto attached, marked “Exhibit A”

and made part hereof.

5. By the terms of said agreement your petitioners sold to defend-

ant, and defendant bought from petitioners, one hundred and fifty

(150) barrels of standard Fine Granulated sugar on the basis of

25.50 cents per pound f. o. b. Savannah Refinery, Port Wentworth,

Georgia.

[fol.9] 6. By the terms of said contract, shipment of said sugar

was to be made by petitioners between July 15th and October 1,

1920; the particular date or dates of shipment within said period to

be at seller’s option, subject to delay if any.

7: That under date of May 7, 1920, petitioners and defendant exe-

cuted in duplicate, and each delivered to the other, a second certain

agreement, a copy of which is hereto attached, marked “Exhibit B”

and made part hereof.

8. By the terms of said contract, petitioners sold to defendant,

and defendant bought from petitioners, three hundred (300) bar-

rels of standard Fine Granulated sugar on the basis of 25.50 cents

per pound, f. o. b. Savannah Refinery, Port Wentworth, Georgia

9. By the terms of said second contract, shipment of said sugar

was to be made by petitioners in equal quantities monthly, begin-

ning the last half of July and continuing through August and Sep-

tember, 1920, if possible; but at seller’s option of shipping to suit

seller’s convenience during the period mentioned, subject to delay

if any.

10. Under both of said contracts, the terms of payment for said

sugars were to be cash before delivery less two (2) per cent, or cash

in seven (7) days after delivery less two (2) per cent, according

as the seller’s credit department might approve the one or the other

mode of payment.

11. By the terms of both of said contracts, petitioners agreed to

furnish said sugars packed in barrels or bags, but reserved the option

of shipping no more than fifty per cent (50%) of contract in 100-

pound bags; and agreeing but not guaranteeing to furnish 2-, 5-, 10-.

and 25-pound bags at the ruling differential above Fine Granulated

basis if desired by the trade, provided said packages are obtainable.

12. Under the general custom and usage prevailing in the sugar

trade under which said two above mentioned contracts were made,

[fol. 10] the sugar which petitioners contracted to sell, and defend-

ant contracted to buy, might be furnished either in barrels contain-

ing approximately 350 pounds net sugar, or in 100-pound bags,

and when shipped in such bags was known and regarded as in bulk;

and according to said general custom and usage said sugar might be

packed in 2-, 5-, 10-, or 25-pound bags or packages, which smaller

packages would be enclosed in 100-pound bags, and when so packed

the sugar would be listed and referred to so as to indicate the num-

ber and weight of the several smaller packages. At the time of the

performance of the two above mentioned contracts the ruling dif-

ferential above Fine Granulated sugar, the basis named in the con-

tract, where the sugar was furnished in 2-, 5-, 10-, or 25-pound bags

packed as hereinbefore referred to, was as follows:

BARE GERI OMSL EIS PO ATER It ORSINI MEAN

100-pound bag containing 4—25-lb. bags (4/25’s), 20/100 of a

cent per lb.

100-pound bag containing 10—10-lb. bags (10/10’s), 30/100 of a

cent per lb.

100-pound bag containing 20—5-lb. bags (20/5’s), 40/100 of a

cent per lb.

13. By the terms of the two contracts hereinbefore referred to,

the sugar was purchased by defendant of petitioners f. 0. b. Sa-

vannah Refinery, Port Wentworth, Georgia, the contract further

providing that if shipment is made freight prepaid, the ruling pre-

paid freight basis to destination in effect on the date of shipment

will govern. During the months of July and August, 1920, the

freight rate from Port Wentworth to Macon, Georgia, on sugar

packed in barrels amounted to .269 of a cent per pound; on sugar

packed in bags .255 of a cent per pound. During the months of

September and October, 1920, the freight rate from Port Went-

worth to Macon, Georgia, on sugar packed in barrels amounted to

337 of a cent per pound; on sugar packed in bags .317 of a cent per

pound.

14. Defendant furnished shipping instructions and assortments

as contemplated by said contracts for the first or July shipment of

sugar, to-wit: 50 barrels under the contract dated April 30, 1920,

and 100 barrels under the contract dated May 7, 1920.

15. Petitioners shipped said sugar in accordance with said ship-

ping instructions, and defendant received and accepted same and

paid therefor in accordance with the contracts.

16. During the period provided by said contracts, petitioners re-

quested and defendant furnished shipping instructions and assort-

ments as contemplated by said contracts for the August shipment of

sugar under said contracts, to-wit: 150 barrels, being 50 barrels

under contract dated April 30, 1920, and 100 barrels under contract

dated May 7, 1920.

17. Petitioners duly forwarded said one hundred and fifty (150)

barrels of sugar in accordance with the said contracts and the ship-

ping instructions given by defendant.

18. But upon the arrival of the said sugar at its destination the

[fol. 11] defendant failed and refused to accept, receive or pay for

the same and notified petitioners that it would not accept the said

sugar; and at the same time also notified petitioners that it would

not. give any further shipping instructions or assortments as pro-

vided in the contracts and would not accept any additional sugar

which might be shipped by petitioners under the said contracts, and

directed petitioners not to ship any additional sugar, the said defend-

ant repudiating said contracts.

19. And the said defendant continually declined to accept and pay

for the one hundred and fifty (150) barrels of sugar shipped in ac-

cordance with its said instructions, and failed and refused to give

any additional instructions or assortments for the balance of the

sugar purchased under the said two contracts, and at no time during

the period provided in said two contracts respectively for the delivery

of said sugars, furnished petitioners any shipping instructions or

assortments, but continually refused so to do.

20. During the period provided for in the said two agreements |

for the shipment of said sugars your petitioners requested the said

defendant to furnish shipping instructions and assortments, but the

said defendant failed and refused so to do.

21. In the meantime, and since the dates of said two respective

agreements, the market value of sugar had materially declined.

22. Petitioners further, and within the time provided in the said

two contracts respectively for the shipment of said sugars, notified

the said defendant of their readiness to ship the said sugar and again

requested shipping instructions and assortments and notified de- ,

-fendant that any further delay in furnishing the same would con-

stitute a breach of its contract.

23. That the said defendant persisted in its failure to furnish ship-

ping instructions and assortments, which it had agreed to furnish

when requested, and denied any liability under the said two agree-

ments above mentioned. :

{fol. 12] 24. At no time prior to the first day of October, 1920

when the contract time for shipment of the said sugars under sai

contract¢ respectively expired, nor on said date, nor thereafter a

any time did the said defendant furnish to petitioners any shippin

instructions or assortments for the said sugars.

25. The market price of the sugar purchased by defendant fro

petitioners under the two contracts aforesaid, at the time and plac

of the delivery thereof under the terms of the contract, was eleve

(11) cents per pound.

26. The difference between the contract price for the said thr

hundred (300) barrels of sugar, which the said defendant fail

and refused to accept, and the market price thereof at the time an

place of delivery, was the sum of $15,225.00. }

27. That on account of the failure of the defendant to accept the

one hundred and fifty (150) barrels of sugar for which it had given {

shipping instructions, and which petitioners shipped in accordance |

with such instructions, petitioners incurred certain items of ex-

pense for freight which it prepaid, switching, demurrage, storage

and unloading, aggregating the sum of $235.60, an itemized state-

ment of said expenses being hereto attached, marked “Exhibit D”

and made a part hereof.

yh een ole a ee a ; oda Cierny ‘ a Mer: a

. - . , St It ae

OE cS PMLA RO IP CO RNA CEE AARNE Petal ear

Wherefore, petitioners aver that the said defendant is indebted

to them in the said sum of Ffteen Thousand, Two Hundred and

Twenty-five ($15,225.00) Dollars, representing the loss sustained

by petitioners by reason of the failure of the said defendant to take

and pay for the said sugar, and in the further sum of Two Hundred

Thirty-five and 60/100 ($235.60) Dollars for expenses incurred as

hereinbefore recited, and petitioners pray judgment against the said

defendant for the said aggregate sum of Fifteen Thousand, Four

Hundred Sixty and 60/100 ($15,460.60) Dollars, as well as for

all lawful interest thereon at the rate of seven per cent (7%) per

annum.

[fol. 13] And petitioners further pray that process may issue re-

quiring the said defendant, The A. B! Small Company, to be and

appear at the next term of this court to answer petitioners’ com-

plaint.

Jones, Park & Johnston, Petitioners’ Attorneys.

[fol. 14] Exutir A ro Perrrion

Contract No. 672

New York, N. Y., April 30, 1920.

Sold by Lamborn & Company, New York, for the Account of Whom

It May Concern

‘

Sold to A. B. Small Co., Macon, Ga., 150 Barrels Standard Fine

Granulated Sugar, on the basis of 25.50 cents per pound, f. o. b.

Savannah Refinery, Port Wentworth, Ga., for Fine Granulated

“Shipments to be made some time during the period between July

15th and October 1, 1920: but shipping is to be at sellers’ option,”

subject to delay, if any.

Terms.—Cash before delivery less 2%, or cash in seven days less

2%. Terms and withdrawals subject to the approval of the sellers’

Credit Department.

Sellers to furnish sugars packed in barrels or bags, but sellers have

option of shipping no more than 50% of contract in 100-Ib. bags.

Sellers will furnish 2-, 5-, 10- and 25-Ib. bags at the ruling dif-

ferential above Fine Granulated basis, if desired by the trade, pro-

vided these packages are obtainable, but do not guarantee to fur-

nish said packages.

Sellers will not be respohsible under this contract if shipment

18 prevented or delayed by war conditions, strikes, labor difficulties,

accidents, embargoes, regulations or restrictions imposed by any

Government or Governmental agencies, fire or any other cause be-

yond the sellers’ control, or if the supply of raw material of the

2—399

refinery manufacturing the sugar described in this agreement shall

be interrupted by any such cause.

Option of routing is reserved by sellers. Delivery will be con-

sidered complete on receipt of goods by carrier.

This purchase to be invoiced and paid for at contract price. No

allowances whatever for declines in market. If shipment is made

freight prepaid, the ruling prepaid freight basis to destination in

effect on date of shipment will govern. Assortments against con-

tract must be furnished when called for by sellers. All additional

import duties, excise or other taxes hereafter levied on the Raw or

Refined Sugar necessary to fill this contract at buyer’s expense in

addition to price specified.

Kindly sign and return one copy confirming purchase.

Lamborn & Company, Savannah, Ga., Brokers.

This contract is accepted: (buyer) ( Sgd.) A. B. Small Co.

This contract is accepted. (Seller) Lamborn & Company, New

York, N. Y., By (Sgd.) G. G. Bond

{ fol. 15] Exutsit B to Petition

Contract No. 1080

New York, N. Y., May 7, 1920.

Sold by Lamborn & Company, New York, for the Account of Whom

It May Concern

Sold to A. B. Small Company, Macon, Ga., 300 Barrels Standard

Fine Granulated Sugar on the basis of 25.50 cents per pound, f. 0. b.

Savannah Refinery, Port Wentworth, Georgia, for Fine Granulated.

Delivery of equal quantities monthly beginning the last half of

July and continuing through August and September of 1920, if pos

sible. ‘Sellers’ option of shipping to suit sellers’ convenience dur-

ing the period mentioned,” subject to delay, if any.

erms.—Cash before delivery less 2%, or cash in seven days less

2%. Terms and withdrawal subject to the approval of the sellers’

Credit Department.

Sellers to furnish sugars packed in barrels or bags, but sellers

have option of shipping no more than 50% of contract in 100-Ib. —

a. Sellers will furnish 2-, 5-, 10- and 25-Ib. bags at the ruling ©

differential above Fine Granulated basis, if desired by the trade, —

rovided these packages are obtainable, but do not guarantee to

urnish said packages. |

Sellers will not be responsible under this contract if shipment is —

prevented or delayed by war conditions, strikes, labor difficulties,

accidents, embargoes, regulations or restrictions imposed by any

LIE POR ER ty IIS BIEL Pe cE —

ere 2 ars ore <cnn ee re OT! fas

Government or Governmental agencies, fire, or any other cause be-

yond the sellers’ control, or if the supply of raw material of the

refinery manufacturing the sugar deserthad in this agreement shall

be interrupted by any such cause.

Option of routing is reserved by sellers. Delivery will be con-

sidered complete on receipt of goods by carrier.

This purchase to be invoiced and paid for at contract price. No

allowance whatever for declines in market. If shipment is made

freight prepaid, the ruling prepaid freight basis to destination in

effect on date of shipment will govern. Assortments against con-

tract must be furnished when called for by sellers. All additional

import duties, excise or other taxes hereafter levied on the Raw

or Refined Sugar necessary to fill this contract at buyer’s expense

in addition to price specified.

Kindly sign and return one copy confirming purchase.

Lamborn & Company, Savannah, Ga., Brokers.

This contract is accepted: (Buyer) by (Sgd.) The A. B. Small Co.

This contract is accepted: (Seller) Lamborn & Company, by

(Sdg.) J. G. Faril.

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[fol. 17] Exuisit |) tro PETITION

Lamborn & Company in Account with the A. B. Small Company.

Shipment Against Contracts #672 and #1080 in Compliance with

Instructions from the A. B. Small Company by Telegram Dated

August 27, 1920

Freight prepaid ............+seeeeeeeseeeeseete ress $136.81

Ne SR ree a ee ee Oe ee eS salah ed 6.70

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Unloading and delivery.......---++++eesseerr ttre: 5.00

$235.60

[File endorsement omitted. ]

[fol. 18] In THE District Court OF THE UNITED STATES FOR THE

WESTERN DIvIsiON OF THE SOUTHERN DISTRICT OF GEORGIA

[Title omitted ]

DemurreR—Filed April 30, 1921

To the Honorable the Distriet Court of the United States for the

Western Division of the Southern District of Georgia:

Comes now the above named defendant, The A. B. Small Co., and

demurs to the complaint herein, and for grounds of demurrer

specifies :

First Count

1. The said petition fails to set forth facts sufficient to constitute

a cause of action against this defendant.

2. The alleged contracts sued on and exhibited in the said plain:

tiff’s petition are unilateral, lacking in mutuality and do not con-

stitute any obligations on the part of either of the parties named

therein.

3. It appears from said petition that the said alleged contracts are

wholly lacking in consideration and are without consideration and

are nudum pactum and void.

4. It appears from plaintiff's petition and exhibits A and B at-

tached thereto “Terms and withdrawals subject to the approval of

seller’s credit department,” and it does not appear that said credit

department ever approved in writing and notified defendant of said

terms and withdrawals. Wherefore, no contract was ever made and

the seller was never bound.

1. gs gas ee a a Rea SM aA SL ol Ce ot Pe Ne

i SR Aol at ee EE ‘

5. Said alleged contracis are indefinite, uncertain and do not

(fol. 19] bind the plaintiff, for it appears therefrom that the seller

was not responsible if the “refiner manufacturing sugar” should be

interrupted because of the named conditions in the alleged contracts,

and the alleged agreements fail to state what refiner was manufactur-

ing or to manufacture the sugar, leaving it to the will, wish or desire

of the plaintiff to select any refiner as the refiner manufacturing the

sugar and seleeting a refiner who had ne sugar Uf prices had advanced.

G. Said alleged contracts sued on ‘herein and set up as Exhibits

“A” and “B” to the plaintiffs petition are null and void and of no

biding foree and effect, for that it appears therefrom, and from all

of the provisions thereof, that there were no substantial and binding

promises made by the plaintiff to the defendant, «nd it further ap-

pearing that said alleged contracts are so indetintte and so limited by

exceptions that they constitute no valid consideration for any

promises of the defendant, and the said alleged contracts imposed

no legal binding obligations on the plaintiff to sell and deliver the

said sugar nor deliver the same at any certain time, and the many

exceptions appearing therein to exeuse the seller rob the said eon-

tracts as to the seller’s obligation thereunder of any binding and

legally enfore-able obligations, and would leave the defendant with-

out remedy in the event of non-performance of the said plaintiff.

7. Defendant demurs specially to the 5th paragraph of the said

petition as containing a conclusion of the pleader as to the effeet

of the terms of said alleged contract.

8. Defendant specially demurs to the 6th paragraph of said petition

as undertaking to construe the terms of the said written instrument,

and because said paragraph misquotes the provision of said contract

therein referred to.

(fol. 20] 9. Defendant demurs specially to the 8th paragraph of

the said petition as containing a conclusion of the pleader as to the

effect of the terms of said alleged contract.

10. Defendant specially demurs to the 9th paragraph of said

petition as undertaking to construe the terms of said written instru-

ment in accordance with the language set forth in said 9th paragraph

of said petition, the provision “seller’s option of shipping to suit

seller’s convenience”, showing by its terms that the seller had the

option of shipping or not shipping said sugar.

11. Defendant demurs specially to the 10th paragraph of said

petition as an attempt on the part of the plaintiff to construe the

language of said written contracts as to the terms of payment, whereas

the said written alleged contracts provided distinetly “terms and

withdrawals subject to the approval of the seller’s credit depart-

ment”.

12. Defendant specially demurs to the 11th paragraph of said

petition as an attempt on the part of the plaintiff to construe the

3—399

terms of part of said alleged contracts and to confine the alleged

meaning of the contracts to a condition to which it does not apply.

13. Defendant demurs specially to the 12th paragraph of said |

petition as containing a conclusion of the pleader as to the effect of

the “general custom and usage” prevailing in the sugar business.

14. Defendant demurs specially to the 13th paragraph of the said

petition as containing a conclusion of the pleader as to the effects of

the terms of said alleged contract. |

15. Defendant demurs to the 16th paragraph of said petition on

the ground that the same fails to state the time when said petitioner

requested and the defendant furnished shipping instructions and

assortments for the August shipments.

{fol.21] 16. Defendant demurs to the 17th paragraph of said peti-

tion on the ground that the same fails to allege the time when the

said plaintiff forwarded 150 barrels of sugar, or the date of the ship-

ping instructions given by defendant.

17. Defendant demurs to the 18th paragraph of said petition on

the ground that the same fails to allege the time when the said

sugar arrived and the time when the defendant ref used to accept the

same, receive or pay for the same and the time when the defendant

notified the plaintiff that it would not accept the same; and the said

paragraph fails to allege the time when the defendant notified the

plaintiff that it would not give further shipping instructions or as-

sortments nor the time when the defendant directed the plaintiff not

to ship additional sugar.

18th. Defendant specially demurs to the 20th paragraph of said

petition because the same fails to set forth the date when the plain-

tiff requested shipping instructions and assortments from the de-

fendant and when the latter failed to give such information.

19. Defendant demurs to the 21st paragraph of said petition as to

the decline of the market value of sugar as being irrelevant and im-

material.

20. Defendant demurs to the allegations of the 22nd paragraph of

said petition for the same fails to allege when the plaintiff notified

the defendant of its readiness to ship and requested shipping in-

structions and assortments, and fails to allege when notice was given

of intention to sell said sugar.

21. Defendant demurs to the allegations of the 23rd par. of said

petition on the ground of its not alleging when the defendant denied

liability to the plaintiff nor when it failed to furnish shipping in-

structions and assortments.

22. Defendant demurs to the 25th par. of said petition on the

ground that the language “with reasonable promptness after Oc-

[fol. 22] tober Ist, 1920, your petitioner resold said 300 barrels of -

sugar” contains a conclusion of the pleader and fails to set forth

SRY LIE se ROR RENNER Re Rayer RC rae ebmaE Ne 8 ne! —_—— hal — -

3 : * “ a

and allege the date when said alleged resale for account of che de-

fendant was made. The said par. fails to allege when netice was

given of its intention to resell and of the price and when it gave an

opportunity to defendant to furnish a better bid.

23. Said petition in Count 1 thereof shows no cause of action

against defendant, for it appears from said Count 1 and Count 2 of

the petition that plaintiff seeks to recover both for a difference be-

iween the market price and the alleged purchase price and for the

difference between the claimed resale price and the alleged purchase

price.

Wherefore, said defendant prays that said plaintiff take nothing

by its said action, and that it be hence dismissed with its cost herein

expended.

Second Count

(Paragraphs 1 thru 19 identical with corresponding paragraphs of

first count.)

20. Defendant demurs to the allegations of the 22nd paragraph

of said petition for the same fails to allege when the plaintiff notified

the defendant of its readiness to ship and requested shipping in-

structions and assortments.

21. Defendant demurs to the allegations of the 23rd par. of said

petition on the ground of its not alleging when the defendant denied

liability to the plaintiff nor when it failed to furnish shipping in-

structions and assortments.

22. Defendant demurs specifically to the 25th par. of said pe-

tition as containing a conclusion of the pleader as to the market price

of the sugar at the time and place of delivery called for under the

terms of the alleged contracts.

23. Defendant demurs to the 26th par. of said petition because the

same fails to state when defendant failed and poh ee to accept said

[fol. 23] sugar, and because said par. contains a conclusion of the

pleader as to the difference between the alleged contract price and the

market price of said sugar at an alleged unstated time and place of

delivery.

24. Defendant demurs to the 27th par. because same fails to set

forth the date when the defendant furnished shipping instructions

or the date when plaintiff shipped in accordance with such in-

structions or the date when defendant failed to accept said sugar.

25. Said petition in Count 2 thereof shows no cause of action

against defendant for that it appears from said Court 2 and Count 1

of the petition that the plaintiff seeks to recover both for a difference

: between the market price and the alleged purchase price and for

the difference between the claimed resale and the alleged purchase

price.

_ Wherefore, said defendant prays that ened ag take nothing by '

its said action and that it he hence dismissed with its cost herein ex-

pended. |

(Signed) Saussy & Saussy, Savannah, Ga., Watkins, Russell )

& Asbill, Atlanta, Ga., Attorneys for Defendant, :

Jurat showing the foregoing was duly sworn to by Edgar Watkins,

omitted in printing.

[File endorsement omitted. ]

[fol. 24] In THE District CourT OF THE Unitep STATES FOR THE

Western Division oF THE SouTnHERN DIstTRICT OF

GEORGIA

[ Title omitted ]

AMENDMENT TO PeTITION—Filed May 14, 1921

Now come the plaintiffs and move to amend their petition hereto-

fore filed in the above case, by adding thereto the following

allegations:

First Count

1. At the end of paragraph 10 of the First Count of said pe-

tition the following words:

“Under both of said contracts, withdrawals of sugar were subject

to the approval of the seller's department. The word ‘withdrawals’

when used in contracts for future delivery of sugar, as used in the

sugar trade at the time said contracts were made, had a definite and

specific trade meaning, indieating the amounts or quantities of sugar

that might be ordered out hy the buyer at any one time and removal

from the entire lot contracted for. The contracts were for the sale of a

large quantity of sugar for future delivery, the buyer having the right

from time to time to withdraw or order out specific quantities within

the contract period for delivery. Such withdrawals were to be sub-

ject to the approval of the credit department of the seller.”

Second Count

1. At the end of paragraph 10 of the Second Count of said petition,

the following words:

[fol.25] “Under both of said contracts, withdrawals of sugar were

subject to the approval of the seller's credit department. The wor

‘withdrawals’ when used in contracts for future delivery of sugar, as

used in the sugar trade at the time said contracts were made, had a

definite and specific trade meaning, indicating the amounts or

uantities of sugar that might be ordered out by the buyer at any one

time and removed from the entire lot contracted for. The contracts

RF LEMSE BE OE TEES EIRENE TSS IEE III LE LONI SERIE 2 TIO TAM SBN PINE MEH OCR NITE _

were for the sale of a large quantity of sugar for future delivery, the

buyer having the right from time to time to withdraw or order out

specific quantities within the contract period for delivery. Such with-

iy were to be subject to the approval of the credit department of

the seller.

Wherefore, plaintiffs pray that this amendment be allowed as a

part of their said petition.

Jones, Park & Johnston, Plaintiffs’ Attorneys.

[File endorsement omitted. ]

[fol. 26] Ix tue Districr CourT OF THE UnitEp STATES FOR

THE WESTERN Division OF THE SOUTHERN DIsTRICT

OF GEORGIA

[Title omitted ]

AMENDMENT TO Petit10oN—Filed May 20, 1921

Now comes Lamborn & Company, the plaintiffs in the above stated

ease, and, by leave of the court first had, amend their petition in the

following particulars :

First Count

1. By adding to the 16th paragraph of the first count of said pe-

tition the following:

“Sueh request was made in writing on August 25, 1920; shipping

instructions and assortments were furnished on August 27, 1920.”

2. By inserting between the word “sugar” and the word “in” in

the second line of the 17th paragraph of the first count of said pe-

tition the following:

“On August 30, 1920.”

3. By adding to the 18th paragraph of the first count of plaintiffs’

petition the following:

“Said sugar arrived and said defendant refused to accept the same

on September 6, 1920. The notices given by defendant to plaintiffs

were on September 7, 1920.”

4. By adding to the 20th paragraph of the first count of plaintiffs’

petition the following:

“Such requests were made in writing on September 18th and —

September 27th, 1920.”

5. By adding to the 22nd paragraph of the first count of plaintiffs’

petition the following:

“Such requests were made in writing on September 18th and

September 27th, 1920.”

—

6. By a to the 23rd paragraph of the first count of plaintiff's

petition the following:

“Such denials of liability and refusal to furnish shipping in-

structions and assortments were made on September 9th, September

13th and October 15th, 1920.”

[fol. 27] Second Count

1. By adding to the 16th paragraph of the second count of said

petition the following:

“Such request was made in writing on August 25, 1920; shipping

instructions and assortments were furnished on August 27, 1920.”

2. By inserting between the word “sugar” and the word “in”

in the second line of the 17th paragraph of the second count of said

petition the following:

“On August 30, 1920.”

3. By adding to the 18th paragraph of the second count of plain-

tiffs’ petition the following:

“Said sugar arrived and said defendant refused to accept the same

on September 6, 1920. The notices given by defendant to plaintiffs

were on September 7, 1920.”

4. By adding to the 20th paragraph of the second count of plain-

tiffs’ petition the following:

“Such requests were made in writing on September 18th and

September 27th, 1920.”

5. By adding to the 22nd paragraph of the second count of plain-

tiffs’ petition the following:

“Such requests were made in writing on September 18th and

September 27th, 1920.”

6. By adding to the 23rd paragraph of the second count of plain-

tiffs’ petition the following:

“Such denials of liability and refusal to furnish shipping in-

structions and assortments were made on September Mh, September

13th and October 15th, 1920.”

Jones, Park & Johnston, Hitch, Denmark & Lovett, Attorneys

for Plaintiffs.

The foregoing amendment is hereby allowed, this May 1%, 1921.

Beverly D. Evans, United States Judge.

[File endorsement omitted. ]

REITER ILS AL ABLE TEE TE EIN ON Tene PSNR Tet tail eae — — _ - tl

4 : the operant en ene remeonts

¥ v .

[fol. 28] In Tue Unitep States District Court ror THE WESTERN

Division OF THE SOUTHERN District OF GEORGIA

[ Title omitted |

DemcrReR TO AMENDED Petit1ion—Filed May 16, 1921

The plaintiff having submitted an amendment to its petition and

defendant now comes and renews the grounds of demurrer originally

tiled by it in this case, and also for additional grounds of demurrer,

says:

First Count

1. That the said amendment seeks to vary the written terms of

the said original contracts sued on, in so far as it seeks to attach to the

words “withdrawals subject to the approval of seller’s credit depart-

ment,” a different meaning from their plain, ordinary meaning, and

to make the said words mean something different from their plain

and ordinary meaning.

2. Because the said petition as amended fails to set forth facts suffi-

cient to constitute a cause of action against this defendant.

Second Count

1. The said amendment seeks to vary the written terms of the

said alleged contracts sued on, in so far as it seeks to attach to the

words “withdrawals subject to the approval of seller’s credit de-

partment,” a different meaning from their plain, ordinary meaning,

and to make the said words mean something different from their

plain and ordinary meaning.”

2. Because the said petition as amended fails to set forth facts

suflicient to constitute a cause of action against this defendant.

Wherefore it prays that the said demurrer be sustained.

Watkins, Russell & Asbill, Saussy & Saussy, Counsel for De-

fendant.

| File endorsement omitted. }

[fol. 2814] Ly tHe Districr Court or THE UNITED STATES FOR THE

WESTERN DiviIsION OF THE SOUTHERN DisTRICT OF GEORGIA

[Title omitted }

OrpDER OVERRULING DeMuRRER—Filed May 20, 1921

The demurrer filed by the defendant to the plaintiff's petition in

the above stated case having come on regularly for hearing, and

TT ee a ee

having been fully argued by counsel for plaintiffs and defendant, and

the plaintiffs having amended their petition to meet the special de-

murrer filed.

It is considered, ordered and adjudged that said demurrer be, and

the same is, hereby overruled.

This the 19th day of May, 121.

Beverly D. Evans, United States Judge.

{ File endorsement omitted. |

[fol. 29] Ix rue District Court oF THE Uxrrep STATES FOR THE

WESTERN DIVISION OF THE SOUTHERN Disreict OF GEORGIA

| Title omitted |

Answer—Filed April 30, 1921

Now comes the A. B, Small Company, in the above entitled cause,

and answering the complaint of the plaintiff! in said action respect-

fully shows:

First Count

1. For want of sufficient information defendant can neither admit

nor deny the allegations of the Ist paragraph of said petition.

2. Defendant admits the allegations of the 2nd paragraph of said

petition.

3. Answering paragraph 3 of said petition, defendant admits that

it is a citizen of the State of Georgia; for want of suflicient informe.

tion defendant can neither admit nor deny the citizenship of the

plaintiff; defendant denies that it is indebted to the plaintiff in any

amount.

4. Answering paragraph 4, defendant admits the signing of a

writing, Exhibit A pe wal to said petition, but denies that such

writing constituted an enforceable contract or gave rise to any cause

of action as claimed by the plaintiff.

5. Defendant denies the allegation contained in the oth para

graph of said petition. No sule or purchase was made as therein

alleged. The alleged contract is not a mutually binding contract,

and for the reasons hereinafter pleaded, is not caleeochis against the

defendant.

6. The defendant denies the allegation of the 6th paragraph of

said petition. There never was any inding obligation on the plain-

tiff to ship any sugar to defendant nor was there ever any binding

[fol. 30] obligation on defendant to accept shipments of any suger

from the said plaintiff.

7. Answering paragra sh 7 defendant admits the signing of the

writing, Exhibit B attached to said petition, but demies that such

FER APNE 6 SEI, 64: a : &

hie iad

writing ever constituted an cnfore-able contract or gave rise to any

cause of action as claimed by the plaintiff.

8. Defendant denies the allegations contained in the Sth_para-

graph of said petition. No sale or purchase was made as therein

alleged. The said alleged contract is net a mutually binding con-

tract, and for the reasons hereinafter pleaded is not enforeible

against the defendant.

%. Defendant denies the allegations of the 9th paragraph of said

petition. There was never any binding obligation on the plaintiff

to ship any sugar to defendant, ner was there ever any binding ob-

ligation on defendant to accept shipments of any sugar from the said

plaintilf,

10, Defendant denies the allegations of the 10th paragraph of said

| petition, the terms of said alleged contracts distinetly providing that

“Terms and withdrawals subject to the approval of the seller's credit

department,” and defendant shows that the plaintiff has never as-

sented to any approval of any such terms and withdrawals.

Nor has plaintiff, so far as this defendant knows, ever accepted

the el contract by approving the terms and withdrawals and

plaintiff has never at any tine notified this defendant of its ac-

ceptance of said contract by such approval. The failure so to accept

in writing and to notify the defendant ther-of, prevents said writing

from becoming a contract and leaves the plaintiff unbound there-

under, said alleged contract being lacking in mutuality, without con-

sideration, and violative of the statute of frauds. Defendant further

shows that assent was necessary on the part of plaintiff and should

have bees in writing signed by the plaintiff and the defendant or

some one lawfully authorized by each of them, and that no approval

was signed by plaintiff or by any one authorized by it, nor was any

{fol. 81] writing accepting any such terms ever signed by defendant

or any one by it authorized.

11. Defendant denies the allegations of the 11th paragraph of said

petition. The “Terms and withdrawals” were both subject to the

seller's credit department's approval, and defendant was for the rea-

sons hereinbefore and hereinafter pleaded, never bound to designate

any number of packages, barrels or bags, and never assented to any

obligation to accept any sugar under the terms of said alleged agree-

ment, nor have plaintiffs, so far as the defendant knows, ever ac-

cepted the proposed contract by approving the terms and withdrawals

and plaintiffs have never at any time notified the defendant of the

plaintiffs’ acceptance of said coutract by such approval, The failure

so to accept in writing and to notify defendant thereunder, prevents

the said alleged contract from becoming a contract and leaves the

plaintiff unbound thereunder, said alleged contract being lacking in

—7. without consideration, and in violation of the statute of

rauds,

12. Answering paragraph 12 of said petition defendant denies that

said alleged contracts are mutually binding contracts, and says that

for the reasons hereinafter pleaded said contracts are not enfore-able

against the defendant. Defendant denies that plaintiff contracted

to sell or that defendant contracted to buy any sugar under the al-

leged contract. For want of sufficient information defendant can

neither admit nor deny the general customs in the sugar Iusiness

alleged in said paragraph, but denies that any such customs, if, any

ever existed is binding on it.

13. Answering paragraph 13 of said petition, defendant denies

that the two alleged contracts are mutually binding contracts and

says said contracts are for the reasons hereinbefore and hereinafter

pleaded not enfore-able against the defendant.

Defendant denies that any sales were made or that any purchases

were made as herein alleged, For want of sutlicient information de-

fendant can neither admit nor deny the allegations of the petition

relating to the freight rates from Port Wentworth to Macon, Ga.

14. Defendant denies the allegations contained in the [ith para

[fol. 32] graph of said petition. The alleged contract is not a

mutually binding contract and for the reasons hereinbefore and

hereinafter pleaded is not enfore-able against the defendant.

15. Defendant denies the allegations contained in the loth para-

graph of said petition. No shipping instructions under any valid

contract were given by defendant, nor did defendant receive any

sugar under any valid contract with the plaintiff. Said alleged con-

tract did not create binding obligations on the plaintiff or defendant

for the reasons already and hereinafter stated, which reasons were

unknown to defendant when said sugar was taken and paid for.

16. Defendant denies the allegations contained in the 16th para-

graph of said petition. No shipping instructions under any valid

contract were requested by plaintiffs nor any furnished by defend-

ant, but shipment was made over the protest of defendant, Said

alleged contracts are not mutually binding contracts, and for the rea-

sons herein pleaded, not enfore-able against the defendant, as fully

appears from facts in this answer fully pleaded, and then unknown

to defendant.

17. Defendant denies the allegations contained in the 17th para:

graph of said petition.

Defendant denies that there were any legal mutually binding con-

tracts which obligated plaintiff to ship any sugar to defendant or

which obligated defendant to furnish any shipping instructions to

plaintiff.

18. Defendant admits that it refused to accept the sugar as stated

in paragraph 18 of said petition, but denies that there was any bind-

ing agreement on defendant to accept, receive or pay for any sugar,

or any binding agreement on plaintiff to deliver any sugar. Said

alleged contracts referred to herein are not mutually binding con-

tracts for the reasons hereinafter pleaded, and not enfore-able against

the defendant.

19. Answering paragraph 19 of said petition, defendant denies

that it was under any binding agreement to accept and pay for any

sugar under the alleged contracts and denies that it was under any

[fol. 83] duty to give instructions or assortment for any sugar cov-

ered by said alleged contracts, and denies that said alleged contracts

are mutually binding, but says for the reasons herein pleaded said

contracts are not enfore-able against the defendant.

20. Defendant denies the allegations of the 20th paragraph of

said petition to the effect that the plaintiff requested shipping in-

structions from the defendant during the period provided in the

agreement, as the defendant denies that there ever was a contract be-

tween the plaintiff and the defendant. The defendant states that

the alleged agreements bear dates April 30th and May 7th, 1920,

and that on or about August 25th, 1920 after sugar had declined in

price below the price specitied in the said alleged agreements of April

30th and May 7th, the said plaintiff asked for assortments from de-

fendant, but never informed the defendant that the seller’s credit

department had ever approved of any terms or withdrawels, and that

the delay from April 30th and May 7th to August 26th, 1920 was

an unreasonable time for the said plaintiff to have waited before re-

questing any instructions, and the said defendant was never under

any obligation to furnish any instructions to the plaintiff in the

premises,

21. Answering paragraph 21 of said petition defendant admits

that sugar declined in price between the dates of April 30th and

May 7th and September and October Ist, 1920, but deny that there

was any binding agreement of defendant to aceept any sugar or any

binding agreement on plaintiff to deliver any sugar,

22. Answering paragraph 22 of said petition, defendant denies

“Notice within the contract time” being given to it, as defendant

denies there ever was any binding contract. Defendant admits that

on August 26th, 1920 the plaintiff wired asking for shipping instrue-

tions and admits that the defendant did not give any instructions be-

cause it Was not obligated to do so. The defendant on August 27,

1920 and on later dates notified plaintiff that the defendant was not

under any obligation to purchase any sugar from the plaintiff,

fol. 34] 238. Answering paragraph 23 of the petition defendant

denies that they ever were bound to furnish any shipping instructions

and admits that it failed to do so, Defendant denies that there

Were any contracts or any liability thereunder by defendant. to

plaintiff.

24. Answering paragraph 24 of said petition, defendant admits

that it never furnished any shipping instructions and denies the alle-

gations that there were contracts which required it to do so. On the

contrary, there never were any mutually binding contracts between

the plaintiff and the defendant for the reasons herein set forth.

25, Answering paragraph 25 of said petition, defendant denies

the allegation “with reasonable promptness after October Ist, 1920,

(aE eae SEERA

your petitioner re-sold the said 300 barrels of sugar for the account —

of the said defendant”. Defendant admits receiving from plaintiff

a letter on or about October 16th, 11/20 to the effect that plaintiff had

wired on October 15th, 1920 that they would sell certain sugars un-

less they received a better offer before 9 A. M., October 16th, 1920.

Defendant for want of suflicient information ean neither admit nor

deny that the plaintiff re-sold 300 barrels of sugar for the account

of <utendent in the manner and form as alleged and denies plain-

tiff’s authority to make any such sale for the account of defendant.

96. Answering paragraph 26 of said petition, defendant admits

that it never made any bid for any sugar.

97. For want of sufficient information defendant denies the alle-

gations of the 27th paragraph of said petition ; denies any indebted-

ness of any kind to the plaintiff on any kind of account or otherwise,

and demands strict proof of any of said obligations. Defendant ad-

mits that it received a copy of said statement but immediately denied

and now denies any liability thereunder.

98. Defendant denies the allegations of the 28th paragraph of

said petition ; denies that there were any legal binding contracts be-

[fol. 35] tween plaintiff and defendant.

99. And the defendant further shows that prior to the requiring

of any contracts of the like form to that sued on in the ease at bar,

and for a long term of years prior to the date of the said alleged

contracts, it had heen the practice of the plaintiff to sell to jobbers

and others in Georgia and elsewhere, without requiring more than

a simple order and acceptance, and it was not until about the time

of the signing of the said alleged contract sued on. that the plaintiff

demanded that the said form of contract be signed by any and all

customers or persons ordering sugar from or throngh it. And the

laintiff at and about the time the said alleged contracts were signed

in 1920, commenced to speculate with sugar, and it had prepared

and had signed many of the said forms of alleged contract, the said

plaintiff purposely and intentionlly and for its own purposes and

protection inserted the said clause “Terms and withdrawals subject

to the approval of the seller's credit department” in order to safe-

guard itself as against any rise in prices of sugar before and at times

for delivery, and it was the purpose and object of the said plaintiff

to provide, as appears from the terms of the said alleged contracts.

that such writings would not bind it legally to any engagement in the

event sugar prices went bevond the prices fixed in the said alleged

contract, and so that the plaintiff could exercise its own arbitrary

wish and will in deciding whether or not it would perform its part

of the said alleged contract. At and before the time for delivery of

sugar under the said alleged contract, and in all other contracts en-

tered into by the plaintiff with many jobbers and others in Georgia

and elsewhere, sugar prices fell decidedly below that specified in the

said alleged contracts, and the plaintiff, for its own advantage, has

undertaken to hold not only the defendant but all others who have

refused to accept sugar, to the said alleged contracts.

GLE ALL ES EIN I ae SS

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PEND EAN ah tN he RAL Se RANT

| fol. 36] 30. For further special answer herein defendant says that

heretofore, and for a long period of years, plaintiff has been engaged

as a broker, representing principals in the sale of sugar, and just

prior to the making of the alleged contracts sued on herein, plain-

tiff conspired, combined and confederated with Savannah Sugar

tefining Company, and other refiners of sugar, whose names de-

fendant does not know, for the purpose of restricting interstate trade

and competition in the sale of sugar throughout the states of Florida,

Alalama, Georgia, South Carolina and North Carolina and other

states. In pursuance of such conspiracy, and in order unduly to in-

crease the prices of sugar in interstate commerce, plaintiff and said

Savannah Sugar Refining Corporation and other sugar refineries

aereed among themselves that the method of conducting the re-

fining and selling of sugar in interstate commerce in said states and

other states of the Union, theretofore employed by said plaintiff

end said refiners should be changed and that in leu of making

needed allotments of sugar to wholesale grocers in said states, in pro-

portion to the needs of said grocers and in proportion that the supply

of sugar bore to such needs, to adopt the plan of partially discon-

tinuing allotments and of requiring contracts for future delivery of

sugar. In further pursuance of such conspiracy, combination and

confederation, plaintiff and its confederates. all the names of whom

being known to plaintiff but unknown to this defendant, aforesaid

agreed among themselves that the refineries should notify wholesale

grocers, defendant and others that they were unable to make full

allotments, and that plaintiff, theretofore brokers, should become

sellers and should buy raw sugars, or pretent to buy raw sugars to

the end that the refiners would be without sugar, or pretend to be

without sugar, leaving the sale of the principal amounts of sugar

to plaintiff and other brokers confederated with it. Carrying out

this conspiracy, the Savannah Refining Corporation, a New York

corporation, with its place of business in Savannah, Ga., declined

to sell sugar to this defendant and other wholesale grocers in Georgia,

(fol. 37] or to make allotments of sugar as theretofore, and plain-

tiff and said refinery and other refineries, in order to make effectual

their conspiracy to restrain trade, adopted the plan of writing, tele-

graphing and orally stating to this defendant and to other wholesale

grocers throughout the Southeast that there was a shortage of sugar,

and that if defendant and other like wholesale grocers expected to

obtain sugars, they should immediately make contracts therefor.

Farther carrying out said conspiracy and combination in restraint

of trade, plaintiff and its confederates falsely stated that there was

a shortage of sugar, when in truth and in fact there was an ample

supply of sugar to meet the demands of all consumers and wholesale

grocers and others using sugar. The plan was adopted in pursuance

of said conspiracy of plaintiff buying or pretending to buy raw sugars

in Cuba and elsewhere, which sugars were refined by the refiners con-

federated with plaintiff, and it was pretended that the sugar belonged

to plaintiff. Whether plaintiff actually owned the sugar or only

pretended to own it, i# unknown to this defendant, but on informa-

tion and belief. defendant says that the purpose of owning or pre-

Cie tes NINE dice Ot ie. Rete ME IEE AD NI Cae PAE

tending to own the sugars on the part of plaintiff was to enable it

and others to increase the prices of sugars beyond their fair value.

Further carrying out the conspiracy aforesaid, plaintiff and its con-

federates witheld sugar from the market, stored it in the refineries

and in Cuba and elsewhere, thus falsely convincing defendant and

other wholesale grocers that there was a shortage of sugar, when in

truth and in fact there was no such shortage. In pursuance of said

conspiracy, plaintiff owning or controlling sugar which had cost it

or those for whom they held the sugar, prices at or below 15¢ per lb.

agreed with their confederates to make sales of sugar for July,

August and September delivery during the year 1920 at the price

of 2514¢ per Ib., or other excessive prices, when a price of 15¢ or

16¢ would have been fully compensatory to the owners of said sugar.

[fol. 38] By means of said conspiracy, the refiners sought to obtain

and did contract to obtain for refining sugar, amounts three or four

times as high as had ever been charged theretofore, and likewise

higher than was just and reasonable, and plaintiff and others acting

as brokers and refiners and confederated with plaintiff, obtained for

itself by contract and otherwise, actual or prospective profits greatly

in excess of any-ever theretofore charged, and greater than were rea-

sonable.

Further to give the appearance of a shortage and to make effective

this conspiracy, plaintiff and its confederated conspirators made sales

of sugar to speculators and others than those usually engaged in

handling and dealing in sugar, thus enabling plaintiff and its con-

federates to make an unjust and unreasonable charge in handling

and dealing in sugar, a necessary of life. By the means aforesaid,

and by other means to defendant unknown, plaintiff succeeded in

convineing the public and this defendant that there existed a short-

age of sugar, and succeeded in restricting competition and inereas-

ing prices and in making contracts for unjust and unreasonable

charges for selling and handling sugar, all in violation of the laws of

the United States and especially of the anti-trust laws of the United

States; and said contracts directly affected interstate commerce and

were conspiracies in violation of the laws of the United Staets, the

enforcement of which contracts in this case would be to make effec:

tual such conspiracies.

The purpose, intent and direct effect of the acts of plaintiff afore-

said were to increase the prices of sugar, to restrain and restrict trade

in interstate commerce, and falsely and fraudulently to convince de-

fendant and other wholesale grocers and consumers throughout the

United States that a shortage existed in the supply of sugar; thus

inducing defendant and others to believe that contracts must be en-

tered into at once at prices demanded by plaintiff. Defendant not

knowing, nor having opportunity to know, the conditions which

[fol. 39] plaintiff well knew, and relying on the acts, conduct and

representations of plaintiff, signed the writings here sued on, which

it would not have done had it known the true facts.

31. That the facts pleaded in paragraphs 29 and 30 hereof show

false and fraudulent representations, which made voidable the al-

leged contracts sued on herein, and because thereof defendant here

as heretofore disavows said. so-called contracts.

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Wherefore, defendant says that the alleged contracts sued on in

this case are each and all unlawful, in violation of the statute and

unenfore-able.

Wherefore, defendant prays that said action may be dismissed, and

that it may have judgment for its costs.

Dated, April 30, 1921.

Saussy & Saussy, Savannah, Georgia; Watkins, Russell &

Asbill, Atlanta, Georgia, Attorneys for Defendant.

Second Count

1. For want of suflicient information defendant can neither ad-

mit nor deny the allegations of the Ist paragraph of said petition.

2. Defendant admits the allegitions of the 2nd paragraph of said

petition,

3. Answering paragraph 3 of said petition, defendant admits that

it isa citizen of the State of Georgian; for want of sufficient informa-

tion defendant can neither admit nor deny the citizenship of the

plaintiff; defendant denies that it is indebted to the plaintiff in any

amount.

4. Answering paragraph 4, défendant admits the signing of a

writing, Exhibit “A” attached to said petition, but denies that such

[fol. 40] writing constituted an enfore-able contract or gave rise to

any cause of action as claimed by the plaintiff.

». Defendant denies the allegations contained in the 5th para-

graph of said petition. No sale or purchase was made as therein

alleged. The alleged contract is not a mutually binding contract,

and for the reasons hereinafter pleaded, is not enfore-able against

the defendant.

6. The defendant denies the allegation of the 6th paragraph of

said petition. There never was any binding obligation on the plain-

tiff to ship any sugar to defendant nor was there ever any binding

obligation on defendant to accept shipments of any sugar from the

said plaintiff.

7. Answering paragraph 7 defendant admits the signing of the

writing, Exhibit “‘B” attached to said petition, but denies that such

Writing ever constituted an enfore-able contract or gave rise to any

cause of action as claimed by the plaintiff.

8. Defendant denies the allegations contained in the 8th para-

graph of said petition. No sale or purchase was made as therein

alleged. The said alleged contract is not a mutually binding con-

tract, and for the reasons hereinafter pleaded is not enfore-able

against the defendant.

9. Defendant denies the allegations of the 9th paragraph of said

petition. There was never any binding obligation on the plaintiff

to ship any sugar to defendant, nor was there ever any binding ob-

a ei

™

TS AEN TONAL AUMEERICA we sr

ligation on defendant to accept shipments of any sugar from the said

plaintiff.

10. Defendant denies the allegations of the 10th paragraph of said

petition, the terms of said alleged contracts distinetly providing that

“Terms and withdrawals subject to the approval of the seller's credit

department,” and defendant shows that the plaintiff has never as-

sented to any approval of any such terms and withdrawals.

Nor has plaintiff, so far as this defendant knows, ever aecepted the

[fol. 41] proposed contract by approving the terms and withdrawals,

and plaintiff has never at any time notified this defendant of its ac-

ceptance of said contract by such approval. The failure so to ac-

cept in writing and to notify the defendant thereof, prevents said

writing from becoming a contract and leaves the plaintiff unbound

thereunder, said alleged contract being lacking in mutuality, with-

out consideration, and violative of the statute of frauds. Defendant

further shows that assent was necessary on the part of plaintiff and

should have been in writing signed by the plaintiff and the defend-

ant, or some one lawfully authorized by each of them, and that no

approval was signed by plaintiff or by any one authorized by it, nor

was any writing accepting any such terms ever signed by defendant

or any one by it authorized.

11. Defendant denies the allegations of the llth paragraph of

said petition. The “Terms and withdrawals” were both subject to

the seller's credit department’s approval, and defendant was for the

reasons hereinbefore and hereinafter pleaded, never bound to desig-

nate any number of packages, barrels or bags, and never assented to

any obligation to accept any sugar under the terms of said alleged

agreement, nor has plaintiff, so far as the defendant knows, ever

accepted the proposed contract by approving the terms and with-

drawals, and plaintiff has never at any time notified the defendant

of the plaintiff’s acceptance of said contract by such approval. The

failure so to accept in writing and to notify defendant thereunder,

prevents the said alleged contract from becoming a contract and

leaves the plaintiff unbound thereunder, said alleged contract being

lacking in mutuality, without consideration, and in violation of the

statute of frauds.

12. Answering paragraph 12 of said petition, defendant denies

that said alleged contracts are mutually binding contracts, and says

that for the reasons hereinafter pleaded said contracts are not en-

fore-able against the defendant. Defendant denies that plaintiff

contracted to sell or that defendant contracted to buy any sugar

under the alleged contract. For want of sufficient information de

(fol. 42] fendant can neither admit nor deny the general customs in

the sugar business alleged in said paragraph, but denies that any

such customs, if any ever existed, are binding on it.

13. Answering paragraph 13 of said petition, defendant denies

that the two alleged contracts are mutually binding contracts, a0

says said contracts are, for the reasons hereinbefore and hereinafter

pleaded, not enforc-able against the defendant.

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Defendant denies that any sales were made or that any purchases

were made as herein alleged. For want of suflicient information de-

fendant can neither admit nor deny the allegations of the petition

relating to the freight rates from Port Wentworth to Macon, Georgia.

14. Defendant denies the allegations contained in the 14th para-

graph of said petition. The alleged contract is not a mutually bind-

ing contract, and for the reasons hereinbefore and hereinafter pleaded

is not cnfore-able against the defendant,

15. Defendant denies the allegations contained in the 15th para-

graph of said petition. No shipping instructions under any valid

contract were given by defendant, nor did defendant receive any

sugar under any valid contract with the plaintiff. Said alleged con-

tract did not create binding obligations on the plaintiff or defendant

for the reasons already and hereinafter stated, which reasons were

unknown to defendant when said sugar was taken and paid for.

16. Defendant denies the allegations contained in the 16th para-

graph of said petition. No shipping instruetions under any valid

contract were requested by plaintiff nor any furnished by defend-

ant, but shipment was made over the protest of defendant, Said al-

leged contracts are not mutually binding contracts, and for the rea-

sons herein pleaded not enfore-able against the defendant, as fully

appears from facts in this answer fully pleaded, and then unknown

to defendant.

17. Defendant denies the allegations contained in the 17th para-

graph of said petition.

[fol. 43] Defendant denies that there were any legal mutually bind-

ing contracts which obligated plaintiff to ship any sugar to defend-

ant or which obligated defendant to furnish any shipping instrue-

tions to plaintiff.

IS. Defendant admits that it refused to accept the sugar as stated

in paragraph 18 of said petition, but denies that there was any

binding agreement on defendant to accept, receive or pay for any

sugar, or any binding agreement on plaintiff to deliver any sugar.

Said alleged contracts referred to herein are not mutually binding

contracts for the reasons hereinafter pleaded, and not enfore-able

against the defendant.

19. Answering paragraph 19 of said petition, defendant denies

that it was under any binding agreement to accept and pay for any

‘ugar under the alleged contracts, and denies that it was under any

duty to give instructions or assortments for any sugar covered by said

alleged contracts, and denies that said alleged contracts are mutually

binding, but says, for the reasons herein pleaded, said contracts are

hot enfore-able against the defendant.

20. Defendant denies the allegations of the 20th paragraph of

said petition to the effect that the plaintiff requested shipping in-

structions from the defendant during the period provided in the

5—399

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agreement, as the defendant denies that there ever was a contract

between the plaintiff and the defendant. The defendant states that

the alleged agreements bear dates April 30th and May 7th, 1920, and

that on or about August 26th, 1920, after sugar had declined in

price below the price specified in the said alleged agreements of

April 30th and May 7th, the said plaintiff asked for assortments

from defendant, but never informed the defendant that the seller's

credit department had ever approved of any terms or withdrawals,

and that the delay from April 30th and May Tth to August 26th,

1920, was an unreasonable time for the said plaintiff to have waited

[fol. 44] before requesting any instructions, and the said defendant

was never under any obligation to furnish any instructions to the

plaintiff in the premises.

21. Answering paragraph 21 of said petition, defendant admits

that sugar declined in price between the dates of April 30th and

May 7th and September and October Ist, 1920, but denies that that

there was any binding agreement of defendant to aecept any sugar

or any binding agreement on plaintiff to deliver any sugar.

22. Answering paragraph 22 of said petition, defendant denies

“Notice within the contract time” being given to it, as defendant

denies there ever was any binding contract. Defendant admits that

on August 26th, 1928, the plaintiff wired asking for shipping in

structions, and admits that the defendant did not give any instrue-

tions because it was not obligated to do so. The defendant on Au

gust 27, 1920, and on later dates, notified plaintiff that the defend-

ant was not under any obligation to purchase any sugar from the

plaintiff.

23. Answering paragraph 23 of the petition, defendant denies

that it ever was bound to furnish any shipping instructions and ad-

mits that it failed to do so, Defendant denies that there were any

contracts or any liability thereunder by defendant to plaintiff.

24. Answering paragraph 24 of said petition, defendant admits

that it never furnished any shipping instructions, and denies the

allegations that there were contracts which required it to do so. On

the contrary, there never were any mutually binding contracts be-

tween the plaintiff and the defendant for the reasons set forth.

25. Answering paragraph 25 of said petition, defendant denies

that any sugar was bought by it or sold to it by plaintiff! under the

said alleged contracts, and says that there never were any mutually

[fol. 45] binding contracts between plaintiff and defendant; for

want of any sufficient information defendant ean neither admit nor

deny the market price of sugar at the unstated time and place of

delivery under the terms of the alleged contracts, but requires strict

proof thereof by plaintiff.

26. Defendant denics the allegations of the 26th paragraph of

said petition, and denies that there were any legal and binding cot

tracts or any liability thereunder by defendant to plaintiff.

27. Defendant denies the allegations of the 27th paragraph of

said petition; denies that it was under any legal duty to accept the

sugar therein mentioned, or that it ever furnished any shipping in-

structions covering the same, or that plaintiff did, or legally could,

ship said sugar for defendant’s account; for want of sufficient in-

formation defendant can neither admit nor deny the contents of the

itemized statement referred to as Exhibit “D,” but requires strict

proof thereof by plaintiff. Defendant denies, as it has heretofore

and before this suit was filed, that plaintiff could in any manner

hold defendant responsible for any of the expenses enumerated in

suid paragraph, there being no mutually binding contract between

plaintiff and defendant relating to the sugar in question.

28. And the defendant further shows that prior to the requiring

of any contracts of the like form to that sued on in the ease at bar,

and for a long term of years prior to the date of the said alleged

contracts, it had been the practice of the plaintiff to sell to jobbers

and others in Georgia and elsewhere, without requiring more than

a simple order and acceptance, and it was not until after the time

of the signing of the said alleged contract sued on that the plaintiff

demanded that the said form of contract be signed by any and all

customers or persons ordering sugar from or through it. And the

plaintiff at and about the time the said alleged contracts were signed

in 1920, commenced to speculate with sugar, and it had prepared and

ifol. fo] had signed many of the said forms of alleged contract, the

said plaintiff purposely and intentionally and for its own purposes

and protection inserted the said clause “Terms and withdrawals sub-

ject to the approval of the seller's credit department” in order to

safeguard itself as against any rise in prices of sugar before and at

times of delivery, and it was the purpose and object of the said plain-

tiff to provide, as appears from the terms of the said alleged contracts,

that such writings would not bind it legally to any engagement in the

event sugar prices went bevond the prices fixed in the said alleged

contract, and so that the plaintiff could exercise its own arbitrary

wish and will in deciding whether or not it would perform its part

of the said alleged contract. At and before the time for delivery of

sugar under the said alleged contract, and in all other econtraets en-

tered into by the plaintiff with many jobbers and others in Georgia

and elsewhere, sugar prices fell decidedly below that specified in the

said alleged contracts, and the plaintiff, for its own advantage, has

undertaken to hold not only the defendant but all others who have

refused to aecept sugar, to the said alleged contracts,

29. Por further special answer herein, defendant says that hereto-

fore, and for a long period of years, plaintiff has been engaged as a

broker, representing principals in the sale of sugar, and just prior

fo the making of the alleged contracts sued on herein, plaintiff con-

spired, combined and confederated with Savannah Sugar Refining

Company, and other refiners of sugar, whose names defendant does

hot know, for the purpose of restricting interstate trade and com-

Petition in the sale of sugar throughout the States of Florida, Ala-

bama, Georgia, South Carolina, North Carolina, and other States.

In pursuance of such conspiracy, and in order unduly to increase

bid

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the prices of sugar in interstate commerce, plaintiff and said Sa-

vannah Sugar Refining Corporation, and other sugar refineries,

agreed among themselves that the method of conducting the refining

and selling of sugar in interstate commerce in said States and other

[fol. 47] States of the Union, theretofore employed by said plaintiff

and said refiners should be changed, and that in heu of making

needed allotments of sugar to wholesale grocers in said States, in

proportion to the needs of said grocers and in proportion that the

supply of sugar bore to such needs, to adopt the plan of partially

discontinuing allotments and of requiring contracts for future de-

livery of sugar. In further pursuance of such conspiracy, combina-

tion and confederation, plaintiff and its confederates, all the names

of whom being known to plaintiff but unknown to this defendant,

aforesaid agreed among themselves that the refineries should notify

wholesale grocers, defendant and others, that they were unable to

make full allotments, and that plaintiff, theretofore brokers, should

become sellers and should buy raw sugars, or pretend to buy raw

sugars, to ine end that the refiners should be without sugar, or pre-

tend to be without sugar, leaving the sale of the principal amounts

of sugar to plaintiff and other brokers confederated with it. Carry-

ing out this conspiracy, the Savannah Sugar Refining Corporation,

a New York Corporation, with its place of business in Savannah,

Georgia, declined to sell sugar to this defendant and other wholesale

grocers in Georgia, or to make allotments of sugar as theretofore,

and plaintiff and said refinery and other refineries, in order to make

effectual their conspiracy to restrain trade, adopted the plan of

writing, telegraphing and orally stating to this defendant and to

other wholesale grocers throughout the Southeast that there was a

shortage of sugar, and that if defendant and other like wholesale

grocers expected to obtain sugars they should immediately make con-

tracts therefor, Further carrying out said conspiracy and combina-

tion in restraint of trade, plaintiff and its confederates falsely stated

that there was a shortage of sugar, when in truth and in faet there

was an ample supply of sugar to meet the demands of all consumers

and wholesale grocers, and others using sugar. The plan was

[fol. 48] adopted in pursuance of said conspiracy of plaintiff buying

or pretending to buy raw sugars in Cuba and elsewhere, which sugars

were refined by the refiners confederated with plaintiff, and it was

pretended that the sugar belong to plaintiff, Whether plaintiff

actually owned the sugar or only pretended to own it, is unknown

to this defendant, but on information and belief, defendant says that

the purpose of owning or pretending to own the sugars on the part

of plaintiff was to enable it and others to increase the prices of sugars

bevond their fair value. Further carrving out the conspiracy afore-

said, plaintiff and its confederates withheld sugar from the market,

stored it in the refineries and in Cuba and elsewhere, thus falsely

convincing defendant and other wholesale grocers that there was a

shortage of sugar, when in truth and in fact there was no such short-

age. In pursuance of said conspiracy, plaintiff owning or controlling

sugar which had cost it. or those for whom it held the sugar, prices

at or below fifteen cents per pound, agreed with its confederates to

make sules of sugar for July, August and September delivery during

ST Oe is PRA TORE NIUE ON Ley MM MCRAE MRR INS Beta ETD

- ® 37

the year 1920, at the price of 2515¢ per lb., or other excessive prices,

when a price of 15¢ or 16¢ would have been fully compensatory to

the owners of said sugar, By means of said conspiracy, the refiners

sought to obtain and did contract to obtain for refining sugar,

amounts three or four times as high as had ever been charged

theretofore, and likewise higher than was just and reasonable, and

plaintiff and others acting as brokers and refiners and confederated

with plaintiff. obtained for itself by contract and otherwise, actual

or prospective profits greatly in excess of any ever theretofore

charged, and greater than were reasonable,

Further to give the appearance of a shortage and to make effective

this conspiracy, plaintiff and its confederated conspirators made sales

of sugar to speculators and others than those usually engaged in

handling and dealing in sugar, thus enabling plaintiff and its con-

federates to make an unjust and unreasonable charge in handling

and dealing in sugar, a necessary of life. By the means aforesaid,

[fol. 49] and by other means to defendant unknown, plaintiff sue-

ceeded in convineing the publie and this defendant that there existed

a shortage of sugar, and succeeded in restricting competition and

increasing prices and in making contracts for unjust and unreason-

able charges for selling and handling sugar, all in violation of the

laws of the United States and especially of the anti-trust laws of the

United States; and said contracts directly affected interstate com-

meree and were conspiracies in violation of the laws of the United

States, the enforcement of which contracts in this case would be to

make effectual such conspiracies,

The purpose, intent and direct effect of the acts of plaintiff afore-

said were to increase the prices of sugar, to restrain and restrict trade

in interstate commerce, and falsely and fraudulently to convince de-

fendant and other wholesale grogers and consumers throughout the

United States that a shortage existed in the supply of sugar; thus

inducing defendant and others to believe that contracts must be

entered into at once at prices demanded by plaintiff. Defendant

not knowing, nor having opportunity to know, the conditions which

plaintiff well knew, and relying on the acts, conduct and representa-

tions of plaintiff, signed the writings here sued on, which it would

not have done had it known the true facts,

30. That the facts pleaded in paragraphs 28 and 29 hereof show

false and fraudulent representations, which made voidable the

alleged contracts sued on herein, and because thereof defendant here,

as heretofore, disavows said so-called contracts.

Wherefore, defendant says that the alleged contracts sued on in

this case are each and all unlawful, in violation of the statute and

unenfore-able.

Wherefore, defendant prays that said action may be dismissed,

and that it may have judgment for its costs.

Dated, April 30, 1921.

Saussy & Saussy, Savannah, Ga.; Watkins, Russell & Asbill,

Atlanta, Ga., Attorneys for Defendant.

[File endorsement omitted. ]

PRMD MY PETE. TORT ME PON OA ET Be LUE VY Fe OE ATER RI HENGE IRI, oft Noe SOL) Ni

an eae nae a —

[fol. 50] Ix tHe District Cover or tie Unrrep States For THE

Wesrerx Division or THe Sournersn Disreicr oF Georets

| Title omitted |

Demvurrer To Answer or Derexpant—Filed May 14, 1921

Come now the plaintiffs and demur to the answer filed by the de-

fendant, and for grounds of demurrer say:

First Count

1. Plaintiffs demur to the answer to the First Count as a whole,

because the same sets up no matter of defense to the petition,

2. Plaintiffs specially demur to so much of paragraphs 4,5, 6,7, 5,

and 9 as sets up that the contract upon which suit is entered is

unilateral, is not mutually binding and is not an enforceable contract

and that there was no sale or purchase made, upon the ground that

said several allegations are conclusions of the pleader: that they seek

to alter the terms of the written contract sued on; and that they raise

uestions of law rather than questions of fact, which can only be

determined upon demurrer.

3. Plaintiffs specially demur to so much of paragraph= 10 and 1

as seeks to construe the clause of the contract making “terms and

withdrawals subject to the approval of the seller's Credit Department,”

upon the ground that said paragraphs are argumentative, contain

conclusions of the pleader only, raise questions of law rather than

questions of fact, undertake to construe words and phrases of the

contract which are proper matters for consideration by the court

upon demurrer, and are not the subject matter of an answer

{fol. 51] 4. Plaintiffs specially demur to so much of paragraphs

12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, and 24, as allege that

the contract upon which suit is entered did net ereate binding obli-

gations on the plaintiffs or defendant, and that -aid contracts are not

matually binding contracts, and that there was ne agreement on the

part of defendant to accept, receive or pay for any sugar, or any duty

to give shipping instructions, or any duty to accept the sugar; upoo

the pil that said allegations are conclusions of the pleader; that

they seek to modify, change or alter the plain terms of the written

contract; that the questions raised are not matters of fact, but ques

tions of law for the construction and determination of the court, and

are not proper subject matter for an answer.

5. Plaintiffs demur to defendant's first special plea, marked para-

graph 29, upon the ground that said special plea sets up no matter

of defense to plaintiffs’ petition ; that the same is argumentative and

sets up mere conclusions of the pleader; that it contradicts and seeks

to alter, change and modify the terms of the written contract upon

—_ S Ce 2S AP A AP oe PE rt ee ret -

a7 6.5 7

which suit is brought; that it raises questions of law and does not

raise any issue of fact.

6. Plaintiffs demur to the special plea of defendant, marked para-

graph 30, on the ground that the same sets up no defense to plaintiffs’

petition: that the same is vague. indefinite and uneertain: that the

sume is argumentative: that it does not set up sufficient facts to con-

stitute an issue: that it does net set up who participated in the alleged

conspiracy, hor any facts done pursuant to said alleged conspiracy.

nor when said conspiracy was formed. nor how the same was carried

on, nor what acts were done by plaintiffs in furtherance of said

alleged conspiracy, nor what law of the United States was violated,

nor how interstate commerce was interfered with, nor how interstate

trade was restrained or restricted, nor what acts were done caleulated

| fol. 52] to deceive, or which did deceive or mislead defendant, nor

what facts were misrepresented by plaintiffs or any other conspir-

ators, nor what unlawful or improper acts of any character were done

by plaintiff< or any other persons alleged to be members of an un-

lawful conspiracy.

7. Plaintiffs demur to defendant's special plea, marked paragraph

31, upon the ground that said paragraph is vague, indefinite and un-

certain: that the same ix argumentative: that it sets up no issuable

facts: that it ix a mere conclusion of the pleader; that no definite,

specific facts are alleged which constitute false or fraudulent repre-

sentations: and because it is not alleged that the defendant relied on

any false or fraudulent representations or was deceived thereby, nor

can it be told with definiteness what false or fraudulent representa-

tions it is contended plaintiffs made, or when they were made, or to

whom they were made.

Wherefore, plaintiffs pray that said answer and said special pleas

may be stricken.

Second Count

1. Plaintiffs demur to the answer to the Second Count as a whole,

because the same sets up no mtatter of defense to the petition.

2. Plaintiffs specially demur to so much of paragraphs 4, 5, 6, 7,

8, and 9 as sets up that the contract upon which suit is entered is

unilateral, is not mutually binding and is not an enforceable con-

tract and that there was no sale or purchase made: upon the ground

that said several allegations are conclusions of the pleader: that they

seck to alter the terms of the written contract sued on; and that they

raise questions of law rather than questions of fact, which ean only

be determined upon demurrer.

3. Plaintiffs specially demur te so much of paragraphs 10 and 11

as seeks to construe the clause of the contract making “terms and

|fol. 53] withdrawals subject to the approval of the seller’s Credit

Department,” upon the ground that said paragraphs are argumenta-

tive, contain conclusions of the pleader only, raise questions of law

rather than questions of fact, undertake to construe words and

TO ET OE gee ER Be ee Eee “Eee

phrases of the contract which are proper matters for consideration by

the court upon demurrer, and are not the subject matter of an

answer.

4. Plaintiffs specially demur to so much of paragraphs 12, 13, 14,

15, 16, 17, 18, 19, 20, 21, 22, 25, and 24, as allege that the contract

upon which suit is entered did not create binding obligations on the

plaintiffs or defendant, and that said contracts are not mutually

binding contracts, and that there was no agreement on the part of

defendant to accept, receive or pay for any sugar, or any duty to

give shipping instructions, or any duty to accept the sugar: upon

the ground that said allegations are conclusions of the pleader; that

they seek to modify, change or alter the plain terms of the written

contract ; that the questions raised are not matters of fact, but ques-

tions of Jaw for the construction and determination of the court, and

are not proper subject matter for an answer,

5. Plaintiffs demur to so much of paragraphs 25, 26 and 27 as

allege that there was no mutually binding contracts between plain-

tiffs and defendant, and that defendant was under no legal duty to

accept the sugar or to furnish shipping instructions: upon the

ground that the same is argumentative and sets up mere conclusions

of the pleader; that it secks to modify, change or alter the plain

terms of the written contract; and that the questions raised are not

matters of fact, but questions of law for the construction and deter-

mination of the court, and are not proper subject matter for an an-

swer.

6. Plaintiffs demur to defendant's first special plea, marked para-

graph 28, upon the ground that said special plea sets up no matter

of defense to plaintiffs’ petition; that the same is argumentative and

[fol. 54] sets up mere conclusions of the pleader; that it contradicts

and secks to alter, change and modify the terms of the written con-

tract upon which suit is brought; that it raises questions of law and

does not raise any issue of fact.

7. Plaintiffs demur to the special plea of defendant, marked para-

graph 29, on the ground that the same sets up no defense to plain-

tiffs’ petition ; that the same is vague, indefinite and uncertain; that

the same is argumentative; that it does not set up sufficient facts to

constitute an issue; that it does not set up who participated in the

alleged conspiracy, nor any acts done pursuant to said alleged con-

spiracy, nor when said conspiracy was formed, nor how the same was

carried on, nor what acts were done by plaintiffs in furtherance of

said alleged conspiracy, nor what law of the United States was vi0-

lated, nor how interstate commerce was interfered with, nor how in-

terstate trade was restrained or restricted, nor what acts were done

calculated to deceive, or which did deceive or mislead defendant, not

what facts were misrepresented by plaintiffs or any other conspire:

tors, nor what unlawful or improper acts of any character were done

by plaintiffs or any other persons alleged to be members of an un-

lawful conspiracy.

CT det Tat et = ae

ey eee Sore PEDO EEL FOS IEEE PR CRON HD BEN INA POPS EEE

8. Plaintiffs demur to defendant's special plea, marked paragraph

30, upon the ground that said paragraph is vague, indefinite and

uncertain: that the same is argumentative; that it sets up no issuable

facts; that it is a mere conclusion of the pleader; that no definite,

specifie facts are alleged which constitute false or fraudulent re re-

sentations; and because it is not alleged that the defendant relied

on any false or fraudulent representations or was deceived thereby,

nor can it be told with definitencss what false or fraudulent repre-

sentations it is contended plaintiffs made, or when they were made,

or to whom they were made,

Wherefore, plaintiffs pray that said answer and said special pleas

may be stricken,

Jones, Park & Johnston, Attorneys for Plaintiffs.

[File endorsement omitted. }

[fol.565) U.S. Disrricr Courr, Sournern District oF GEORGIA,

May Term, A. D. 1921

| Title omitted ]

AMENDED PLEA AND Answer—Filed July 22, 1921

And now comes the defendant, and with the leave of the Court

lirst obtained, amends the answer and plea heretofore filed in this

cause, by adding at the end of the original answer and plea the fol-

lowing additional paragraphs numbered as follows:

A. At the time when the said alleged contract sued on was exe-

cuted there was in effect, the certain rules of the United States Food

Administration, known as Rules Numbers 6, 7, 8, and 10, which

are hereinafter more fully set forth, whieh rules were binding upon

the said plaintifl, and the said plaintiff was a licensee under the said

United States Food Administration at the time the said alleged con-

tract was executed. And the said rules were violated by the plain-

liff, and the violation of the said rules was the direct | immediate

cause of the price provided for in the alleged contract sued on, and

the said alleged contract is void and against publie policy for the

reasons hereinafter more fully shown.

B. Rule 6, provided, “The licensee in selling food commodities

shall keep such commodities moving to the consumer in as direct a

ine as practicable and without unreasonable justification, especially

if tending to result in a higher market price to the retailer or con-

sumer will he dealt with as an unfair practice.” The said rules all

remained effective until November 15th, 1920.

The Savannah Sugar Refining Corporation for many years prior

to the date of the execution of the said alleged contracts, imported

6—399

. — ae ne ee Te eri oe, Bt

BEBE SATIS PII, OSE a bedi ‘ * - ©

ee ee

raw sugars, refined the same at its refinery at Port Wentworth,

[fol. 56) Georgia, and sold the same to the jobbers and wholesalers

in Georgia and other Southern States. The said plaintiff in 1920,

and at the time prior to the time of the signing of the said alleged

contract sued on, in order to unduly and unreasonably raise the

price of sugar, and inflict upon the consuming public a price of

sugar that would have been otherwise much lower, combined, con-

spired and confederated with said Savannah Sugar Relining Cor-

poration, of New York, and with other persons unknown to your

defendants so that the said plaintiff would buy and contract to buy

a large portion of its refined sugars from the said Relining Corpora-

tion, and Lamborn & Company, a firm and a corporation thereupon

became sellers at wholesale to the sugar trade, adding to the prices

which they had paid or had agreed to pay to the Savannali Retin-

ing Corporation an additional margin of profit plus a brokerage. im

order to increase the profits not only of the said Lamborn & Com

pany, a firm and a corporation, but likewise in order to increase the

profits of the said Sugar Refining Corporation. Under this plan

which was thus put into operation by the said plaintifi and said

Refining Corporation the said plaintiff disposed of a large part of

its supply of refined sugar to former customers of said Refining Cor-

poration, and thereby resales were made within the same trade with-

out any reasonable justification, and the same resulted in a higher

market price to the retailer and consumer. And thereby sugar which

would otherwise, at the date of the said contract and during the time

covered thereby, have sold for fifteen (15¢) cents per pound, was

sold and contracted for sale at a price from eight (8) to ten (10)

cents pound higher which was then and there an unreasonable

price for refined sugar.

The said acts and conduct of the plaintiff were unknown to this

defendant at the time of the signing of the said alleged contract.

C. Rule Seven of the United States Food Administration provided

as follows:

“Speculation Prohibited —No broker or other licensee shall buy

[fol. 57] or sell any food commodity for his own account unless he

is also engaged in and holds himself out to the trade as conducting

the business of distributing such commodity otherwise than on 4

commission or brokerage basis, or unless he uses such commoditie

in manufacturing, provided that this rule shall not apply to sales

on an exchange, board of trade, or similar institution.”

Prior to the time of the signing of the said alleged contract, the

said Lamborn & Company both as a firm and a corporation had been

engaged in the business of selling sugar as sugar brokers and

held themselves out to the trade as brokers de/aing in sugar.

said Lamborn & Company both as a corporation and as a firm, co®

federated, conspired and agreed together and with the Savannab

Sugar Refining Corporation and with other persons unknown to this

defendant, to so conduct their business in dealing with sugar,

in order to increase the price of sugar to the corgumer unreasonably.

SEES TES F

RyiiipR ene Aeron aaeba Ae Act RAY BAK OE EROS NI Ratt Fe Ne Lot Se i an AES ERA aR NA RS BEE A TERA NN ANTE DED

so that the said Savannah Sugar Refining Corporation, would sell a

large part of its sugar and contract to sell the same to the said Lam-

born & Company a corporation, and Lamborn & Company a partner-

ship, in order to diminish and deerease the supply of refined sugar

of the said Refining Corporation, otherwise available for the retail

and wholesale trade so that the said Lamborn & Company, both as a

corporation and as a firm could go among former customers of the

said Savannah Sugar Refining Corporation, and quote higher prices

for sugar than would otherwise have been quoted, due to the fact

that the Savannah Sugar Refining Corporation had largely con-

tracted to, sell its supply of refined sugar to said Lamborn & Com-

pany a firm and a corporation: and the said plaintiff and the said

Lamborn & Company a firm and a corporation and said Refining

Corporation thereby all violated said Rule Seven (7) aforesaid, as

thereby the said Refining Corporation made available to said Lam-

born & Company a firm and a corporation, most of its supply of re-

fined sugar, in order that Lamborn & Company could sell and eon-

tract to sell the same sugar to the wholesale trade in Georgia and

wher Southern States, thereby increasing the profits of the said Re-

[fol. oS] fining Corporation and of the said Lamborn & Company,

a firm and a corporation, and unduly enhancing the price of sugar

to the wholesaler and eventually to the consuming public. And

the said Lamborn & Company a firm and a corporation at and about

the time when said contracts were signed held themselves out to the

trade in Georgia and other States, only as brokers dealing in sugar.

And the said plaintiff so conducted itself as hereinabove set forth

for the purpose of enhancing prices of sugar, and the immediate and

direct effect of the same, was to unreasonably advance that price

of sugar as set ferth in the alleged contract.

D. This defendant further shows that Rule Eight (8) of the

United States Food Administration provides as follows:

“Sales to Speculators Forbidden.—No licensee shall knowingly

sell any food commodity to a broker or other licensee who is not

baying for personal consumption or engaged in using such com-

modity in manufacturing, or who is not regularly engaged in and

holding himself out to the trade as conducting the business of dis-

tributing such commodity otherwise than on a commission or brok-

erage basis, provided that this rule shall not apply to sales on an

exchange, board of trade or similar institution.”

The said plaintiff at the time of the execution of the alleged con-

tract sued on and prior thereto knowingly violated the last named

tule, for the said plaintiff knowingly bought and contracted to bu

refined sugar from the Savannah Sugar Refining Corporation, whic

was then and there a licensee of the United States Food Adminis-

tration, and said Lamborn & Company was then and there a broker

and a licensee who was not then and there buying sugar for per-

sonal consumption and was not engaged in using said commodity in

manufacturing and was not then and there regularly engaged in and

holding itself and themselves out to the trade as conducting the busi-

SPA a i NDS Sal EERO ES AIP PA Ri AERIS LN at TAL

ness of distributing such commoditics otherwise than on a commis-

sion basis, and the sales and contracts for sales were not made on an

exchange or board of trade or other similar institution. And the

[fol. 59] plaintiff violated the said rule in the above respeets, for the

purpose of unduly enhancing the price of refined sugars, in order

that not only could the Savannah Sugar Refining Corporation ar-

range for a large profit, the exact amount of which is unknown to

this defendant, but that also the said Lamborn & Company, a firm

and a corporation could speculaté in sugar, and thereby increase un-

duly and unreasonably the market price of sugar to the wholesaler

and ultimately to the consumer, and by such violation the said price

of sugar was unduly and unreasonably increased, and at the time of

the execution of the contract sued on in this case, the said price of

sugar was fixed at the price set forth in the said alleged contract,

by the plaintiff. which was from eight (8) to ten (10) cents per

pound beyond a reasonable price for sugar at the time the said

alleged contract was signed.

E. And the defendants for further answer show, that Rule Ten

(10) of the United States Food Administration provides:

“Unfair Practices Forbidden.—The licensee shall not buy, con-

tract for, sell, store, or otherwise handle or deal in any food commodi-

ties for the purpose of unreasonably increasing the price or restricting

the supply of such commodities, or of monopolizing or attempting

to monopolize either locally or generally, any of such commodities.”

The said plaintiff as licensee of the United States Food Administra-

tion at and prior to the time of the signing of the alleged contract

sued on, violated the said rule, for the said plaintiff contracted for,

sold, stored, handled and dealt in sugar for the purpose of unrea-

sonably increasing the price thereof and restricting the supply of

said commodity, and monopolized and attempted to monopolize

locally, in the State of Georgia, refined sugar for that said plaintiff

at and prior to the time of the signing of said alleged contract sued

on, combined, confederated and conspired and agreed with Savannah

Sugar Refining Corporation, then and there a corporation, and with

other persons unknown to this defendant. for the said Refining

Corporation to withdraw to a large extent from selling its refined

{fol. 60] sugar at wholesale to the wholesaler jobbers, its former cus-

tomers and to sell practically all of its refined sugars to Lamborn

& Company a firm, and a corporation, in order that it might appear

to the trade that the said Refining Corporation did not have suffi-

cient supply of refined sugar to supply the usual and ordinary de-

mand of its former customers, and in order that the said Lamborn

& Company, a firm, and a corporation, which had theretofore held

itself out to the trade as a broker in sugar, could offer to the said

sugar trade the said refined sugar, and could in addition to the price

Lamborn & Company, a firm and a corporation agreed to pay to

said plaintiff, charge an additional price including brokerage 1

offering such sugars to the wholesale jobbers in Georgia, and in other

Southern States. In this manner, and to the end that the Whole

od alike ae Ce Ce Ral ee COT as

Se Te ee ate eee

sale jobbers would be lead into believing that there was a world short-

age in sugar, and that it would be practically impossible to buy

sugar in the fall of 1920, except at almost phohibitive prices, the

said plaintiff and Lamborn & Company a firm and a corporation,

and the Savannah Sugar Refining Company organized a systematic

campaign for the purpose of distributing propaganda among the

wholesale jobbers, and did distribute propaganda in the form of

letters and telegrams to the sugar trade. for the purpose of inducing

them to contract to buy sugar at unreasonably high prices, to-wit:

$0.2215 cents per pound to $0.25 cents per pound. That the said

plaintiff thereby succeeded in inducing the defendant to sign the

said alleged contract sued on, believing that the said plaintiff could

not contract to sell the said sugar to defendant at a less price with a

reasonable margin of profit to plaintiff, whereas if the plaintiff had

not violated the said Rule Ten (10) there would not have been a

sufficient supply of sugar to supply the said Refining Corporation’s

customers, including the defendant at prices from eight (8) to ten

(10) per cent per pound cheaper than the price stated in the said

alleged contract. And the said plaintiff monopolized and attempted

to monopolize sugar, in Georgia and in other Southern Siates, by

combining with the said Sugar Refining Corporation so that the said

Refining Corporation, would pool the refined sugars available to

them, withheld the same from the market at and prior to the time

of the signing of the said contract sued on, and thereby created the

[fol. 61] impression that there was not sufficient sugar on hand to

fill the demands, thereby creating a fear in the minds of the cus-

tomers of both of them, that sugar was very scaree, and after so

withholding such sugars from the market, and increasing the price

of the same, made contracts for future delivery of the same based

on inordinately high and excessive prices, to the great injury of the

sugar consuming public. And the direct result of all of the afore-

said, was that the said price for sugar set forth in the alleged con-

tract sued on, was excessive and unreasonably high, and at least

eight (8) to ten (10) cents per pound above a reasonable price for

refined sugar.

F. And this defendant further shows that the said plaintiff com-

bined conspired and confederated with the Savannah Sugar Refin-

ing Corporation, and with other persons unknown to defendant at

and prior to the time of the signing of the alleged contract sued on,

to withhold by possission and under a contract or arrangement

made between them and with other persons unknown to defendant,

from the market, refined sugars for the purpose of unreasonably in-

creasing the price of refined sugar, in violation of Section Six (6)

of the Act of Congress aggroved August 10th, 1917. That the same

was effected in this manner, the Savannah Sugar Refining Corpora-

tion, withheld a large part of its refined sugar from the market,

and contracted and arranged with Lamborn & Company, a firm and

4 corporation to supply the said Lamborn & Company a firm and a

corporation with a large part of its refined sugar, so that both of

them withholding sugar from the trade, they could produce the im-

RSE Ie rai TF ” EXLAT IL SEC Se PLR GR TIS PEE ARMOIRE BALE PRN PRT ELAS OY LALA RE IE NRE YL LE A SI

Lo a RE de MS De Net 0

pression of scarcity of said commodity, all of which they did and

their purpose for so doing was for the purpose of unduly increasing

the price of sugar, and the plaintiff thereby induced the defendant

into signing the said alleged contract, to believe that there was a

great scarcity of sugar and as a result thereof the price as mentioned

and fixed upon by the said plaintiff. was arrived at.

And for all of the above reasons the said alleged contract is null

and void and is against the policy of the law and against public

{ fol. 62] poliéy, and the defendant urges all of these amended de-

fenses in addition to those heret-fore interposed in the case.

G. And the defendant further with leave of the Court amends its

fourth, fifth and seventh paragraphs of the first and second answers

filed in this cause by adding at the end thereof the following:

“And this defendant pleads that there never was a contract entered

in between the plaintiffs and this defendant. That Lamborn &

Company prior to the date of the said alleged contract did business

as a corporation, with offices at #98 Wall Street, New York. That

at: the time the said alleged contract was signed, defendant did not

know that there was » Lamborn & Company, a firm of the same ad-

dress engaged in the same business, and believed at the time of sign-

ing said writing that it was dealing with Lamborn & Company, a cor-

poration. That the said alleged contract does not state whether it

was made by a firm or by a corporation, That defendant did not

know until the filing of the suit in this case that Lamborn & Com-

pany, a firm, claimed to have been the person with whom the said

alleged contracts were made. ‘That defendant never knew that the

said co-partnership was the other party to said alleged contracts, on

the contrary had always believed that Lamborn & Company named

in said contracts was a corporation, and since the signing of the

same the defendant has never ratified nor confirmed the said alleged

contracts; And for that reason no valid contracts were ever executed,

and the said alleged contracts are entirely indefinite and uncertain

and as now claimed by plaintiffs named a party entirely, unknown

to the defendant and for these and other reasons herein set out and

hereinafter set out there was no binding contract.”

H. The defendant amendeds the eight- paragraph of said answer

to the first and second counts of said petition, by striking the said

answers to said paragraphs contained in the original answer, and in-

serting in lieu thereof the following:

The defendant denies the allegations contained in the eighth para

graph of said petition.

I. The fifteenth paragraph of the answer in each count is amended

by changing the number “six” to the number, “fifteenth,” in the

second line of each of said paragraphs.

J. The eleventh line of the thirtieth paragraph of the answer to

each of the counts of said petition, is amended by inserting after the

word “interstate” the words “and intrastate,” and in the eight- line

from the end of each of the said paragraphs thirty, by inserting after

- C 7 igh fer . »

meatal LEONE TSE POSE TERED LEE NS SO ATE IIRL MPR BE DN EIN INR . DHE TLE PRINT

the word “laws” the following: “and the public policy of Georgia

and.”

[fol.63] KK. And defendant further pleads that under Section 5

of the Act of Congress approved August 10th, 1917, the plaintiff be-

came a licensee as therein provided for and accepted said license

under an obligation to abide by and perform the requirements of the

said-Section and the rules and regulations promulgated thereunder

by the President of the United States. Under said Section the Presi-

dent of the United States found that any profit in the handling,

selling and distribution of sugar by wholesale in excess of one (1¢)

cent per pound was unjust and unreasonable. And the plaintiffs

as licensee, Was required to so conduct their sale of sugar at whole-

sale, whereby they should not realize a profit of more than One (1¢)

cent per pound. Which profit the President of the United States

found was just, reasonable and fair,—and which this defendants

as shows was irrespective of the order of the President aforesaid, a rea-

sonable profit to be made by such a licensee on future sales of sugar

a at Wholesale. Notwithstanding its premises, the plaintiff unknown

1. to the defendant at the time of signing said alleged contract,

mi knowling charged and contracted to receive a profit in excess of one

(1¢) cent per pound, to-wit: a profit of from eight (8) to ten (10¢)

cents per pound on the sale of said sugar, described in said alleged

contract. And by reason which the said alleged contract became

and is illegal and un-forceable, and the plaintiffs should not be en-

titled to recover thereon.

L. And this defendant further shows that the plaintiff in making

m the said alleged contract with defendant, further violated Section 6

of the Act of Congress of August 10th, 1917, as follows: For that

said plaintiff by its conduct and the facts above set forth in this

amendment hoarded necessaries, to-wit: refined sugar,—and con-

( tracted for and arranged to contract for a quantity of refined sugar,

in in excess of its reasonable requirements, for its business, and for

vn sae by it in a reasonable time. .\nd withheld under the alleged

nd contract and by arrangement with the Savannah Sugar Refining Cor-

poration and other refiners unknown to defendant, refined sugar from

a - — for the purpose of unreasonably increasing the price ’

ereof.

in- M. That all of the said acts and transactions of the plaintiff di-

rectly affected and was the cause of the price named in the contracts

sued on. That the direct effect of the conduct of the plaintiffs was

to make the contract price of the sugar excessive and illegal and

led should this court lend its aid to the enforcement of the said contracts

sued on, it would enable the plaintiff to realize the fruits of its un-

lawful agreement and acts,

Respectfully submitted, Saussy & Saussy, Watkins, Russell &

Asbill, Counsel for Defendant.

ine § [fol.64] Amendment allowed, subject to objections. In open

ter @ Court, Feby. 20th, 1922.

Beverly D. Evans, U. S. Judge.

[File endorsement omitted.]

NS TPR aint Par, AL RARE A ART ROE SSX AC UNAM COO DIT COROT CBee we

| fol. 65] Ix Unirep States Districr Court

[ Title omitted }

Filed Mar. 5, 1923

AMENDMENT TO ANSWER

Defendants petition court for permission to amend their answer

previously tiled by adding thereto the following paragraphs:

50. At the time of the execution of the alleged contract here sued

upon there was in force and effect section five of the National De-

fense Act, as contained in United States Compiled Statutes 1916,

supplement of 1919, section 3115-'44 g, page 660, together with

proclamations issued by the President of the United States on Sep-

tember 7th and October 8th, 1917, in administering said section.

51. Said section 3115 1% g above cited, provided that, “from time

to time, whenever the President shall find it essential to license the

importation, manufacture, storage, mining, or distribution of any

necessaries in order to carry into effect any purposes of this act, and

shall publicly so announce, no person shall * * * engage in or

carry on any such business specified in the announcement of impor-

tation, manufacturing, storage, mining, or distribution of any neces-

saries, * * * unless he shall secure and hold a license issued

pursuant to this section * * ts

52. Exercising the authority vested in him by section quoted

[fol. 65] above, the President, on September 7th, 1917, issued his

public proclamation providing:

“All persons, firms, corporations and associations engaged in tlie

business either of importing sugar, of manufacturing sugar syrups

or molasses, (except those specifically exempted by said Act of Con-

gress), are hereby required to secure on or before October 1, 191%,

a license, which license will be issued under such rules and regula-

tions governing the conduct of such business as may be prescribed.

Applications for licenses must be made to the United States Food

Administrator, Washington, D. C., upon forms prepared by him

for that purpose.”

and on October 8, 1917, issued another public proclamation pre

viding:

“All persons, firms, corporations and associations engaged in the

business of either (1) operating cold storage warehouses (a cold stor

age warehouse for the purpose of this proclamation being defined a

any place artificially or mechanically cooled to or below a tempera

ture of 45 degrees above zero Fahrenheit, in which food product:

are placed and held for thirty days or more), (2) operating elevators

warehouses or other places for the storage of corn, oats, barely, beans,

rice, cotton seed, cottonseed cake, cottonseed meal or peanut meal, o

(3) importing, manufacturing (including milling, mixing or pack

PFOA EI OE TE ORT ES LONE OE I RES MIB ae Pe 1

SPSL CRS ag DENI ee ATR Re gee seis es —

Na Ne gaan eee eee Re Ca ee ee a er Cnn nie at eee Om ENGT Pee Sate Ey ee ne emery. a Caicos rere

ing), or distributing (including buying and selling) any of the

following commodities:

“Sugar, syrups or molasses, are hereby required to secure on or be-

fore November 1, 1917, a license, which license will be issued under

such rules and regulations governing the conduet of the business as

may be prescribed,

“Appheation for license must be made to the United States Food

Administration, Washington, D, C., Law Departient—License Di-

vision, on forms prepared by it for that purpose, whieh may be se-

cured on request.”

53. The effect of said section above quoted and the proclamations

of the President based thereon was to require plaintiff to have a sepa-

rate and distinct license to import, manufacture, or distribute sugar

involved in this suit, and plaintiff, having a license neither to im-

port, manufacture, or distribute, could and did not legally contract

with defendants for the sale to them of any such sugar, and the

alleged contract is void for non-compliance by plaintiff with the

statute of Congress and the proclamations and regulations of the

President made thereunder, and especially is this true since Plain-

tiff held no license to distribute sugar.

Watkins, Russell & Asbill, Attorneys for Defendants.

[fol. 67 ORDER

The foregoing amendment read and considered, the same is here-

with allowed and ordered filed as a part of the record, this 2nd day

of February, 1923.

Wm. H. Barrett, Judge Superior Court.

[File endorsement omitted. ]

[fol. 68] In tHE District Court or tHe Unrrep Starrs FOR THE

WestTERN Division or tHe SourHERN District or GEORGIA

| Title omitted ]

DEMURRER TO AMENDMENT TO ANSWER—Filed Feb. 25, 1922

Come now the plaintiffs and demur to the answer filed by the

defendant and move to strike the same upon the following grounds,

to-wit:

1. Because the amendment as a whole sets up no matter of de-

fense to the petition. .

2. Plaintiffs demur to paragraphs numbered A, B, C, D, E, and

F, as a whole, because said paragraphs set up no matter of defense

to the petition, and because the Act of Congress approved August

10, 1917, is unconstitutional, null and void and of no effect, because

7—399

in violation of and repugnant to the fifth and sixth amendments of

the Constitution of the United States, in that said Act of Congress

fixes no ascertainable standard of guilt, is not adequate to inform

persons accused of the violation thereof of the nature and cause of

the accusation against them, is an attempt to delegate legislative

power to courts and juries, and is too vague, general and indefinite in

its terms to be capable of enforcement either civilly or criminally,

and attempts to penalize indefinite acts, and the rules and regu-

lations adopted by the United States Food Administration pursuant

to the said Act are without authority of law, because based upon an

unconsitutional Act, and said rules and regulations are themselves

indefinite and incapable of enforcement either civilly or criminally,

and because the violation of the said several rules, even if the same

were valid, does not affect the validity of the contracts upon which

the suit is based.

[fol.69] 3. Plaintiffs specially demur to paragraph A, because

said paragraph whether taken alone or in connection with other

paragraphs of said answer sets up no matter of defense to plaintifl’s

petition, and because the several rules of the United States lood

Administration referred to therein were passed pursuant to the

authority of an unconstitutional statute, and are, therefore invalid

and unenforceable, and because said rules are too vague, general

and indefinite to be capable of enforcement and because a violation

of the rules therein pleaded does not affect the validity of the con-

tracts upon which suit is brought.

4. Plaintiffs specially demur to paragraph B, of said amendment

upon the ground that said paragraph whether taken by itself or in

connection with the other paragraphs of said amendment sets up no

matter of defense to plaintitfs’ petition, and because a violation of the

rule therein referred to cou not affect the validity of the con-

tracts upon which suit was entered, and because the facts pleaded

affirmatively show that said rule was not violated by plaintiffs, and

because said rule is unenforceable because not authorized by any

valid act of Congress. Plaintiffs demur to so much of said para-

graph as undertakes to allege a conspiracy, because the same is vague,

indefinite and uncertain, and does not set up facts sufficient to con-

stitute an issue; that it does not set up who participated in the al-

leged conspiracy, nor aver facts sufficient to excuse the want of such

allegation; that it does not set up what acts, if any, were done,

pursuant to said alleged conspiracy, nor when the same was formed,

nor how it was formed, nor what acts were done by plaintiffs in

furtherance of said alleged conspiracy, nor how the facts in any

manner affect the validity of the contracts upon which suit is brought.

[fol. 70] 5. Plaintiffs specially demur to paragraph C of said

amendment upon the ground that said paragraph whether taken by

itself or in connection with the other allegations of the answer sets

up no matter of defense to plaintiffs’ petition, and because a viola-

tion cf the rule therein referred to did not affect the validity of the

contracts sued upon, and because the facts pleaded affirmatively show

NONI AVA ONTO eyes ARIE GIO IOP 5 PRY

7 that said rule was not violated by the plaintiffs, and because said

. rule is unenforceable because not authorized by any valid Act of

: Congress, and because the allegation- therein with reference to the

Fi alleged conspiracy are too vague, indefinite and uncertain to form

: an issue.

2 6. Plaintifls specially demur to paragraph D of said amendment,

f because said paragraph whether taken by itself or in connection

- with the other paragraphs of the answer sets up no matter of defense

t to plaintifls’ petition, and because a violation of the rule therein

H pleaded docs not affect the validity of the contracts sued upon, and

3 because the facts pleaded aflirmatively show that said rule was not

f violated by the plaintitis, but that plaintiffs were necessarily engaged

e in holding themselves out to the trade and conducting the business

h of distributing sugar when said sales were made, and because said

rule in unentorceable, because not authorized by any valid act of

“ Congress.

or 7. Plaintiffs specially demur to paragraph E of said amendment

’s because the facts stated in said paragraph whether taken by them-

id selves or in connection with the other paragraphs of said amend-

1e ment set up no matter of defense to plaintiffs’ petition, and because

id a violation of the rule therein pleaded does not affect the validity

al of the contracts upon which suit is brought, and because the facts

mn pleaded affirmatively show that said rule was not violated by plain-

n- tiffs, and because said rule is too vague, indefinite and uncertain in

its terms to be capable of enforcement, and because said rule is un-

- enforceable because not authorized by any valid Act of Congress,

™ and because said facts alleged constituting a violation of said rule

. are affirmatively shown not to be illegal, and because the alleged

~ representations as to shortage of sugar were not representations of

ao fact, but of matter of opinion for speculation, and such Tepresenta-

ad tions could not invalidate contracts upon which suit is rought,

id [fol. 71] and because the allegations of said paragraph are irrele-

ny vant and immaterial. Plaintiffs specially demur to so much of

4. | Paragraph EF as alleges that the price for sugar set forth in the con-

‘ tracts upon which suit is brought was excessive and unreasonably

n. | bigh and at least eight to ten cents above a reasonable price for re-

al. | fined sugar, upon the ground that said allegations set up no mat-

ch | ter_of defense to plaintiffs’ petition, and are altogether irrelevant

and immaterial.

ad, 8. Plaintiffs specially demur to paragraph F of said amendment

in | upon the ground that the facts therein stated whether taken alone

ny | or in connection with the other paragraphs of the amendment set

ht. | up no matter of defense to plaintiff's petition, and because the with-

‘id holding of sugar from the market, even if it were done, can not

by affect the validity of the contracts upon which suit is brought, and

because to produce the impression that sugar was scarce could not

Ja | fect the validity of the contracts upon which suit is entered, the

he | Scarcity of sugar being matter of opinion and speculation, and not

ow | # Substantive fact capable of ascertaining, and because the sale of

PRES PITY 2p OW Se ie Se ae oe Stet See ot ee te eee Pe rt eee |

sugar could not constitute a holdin thereof in violation of the Act

of Congress referred to, and because the allegations of said special

plea are irrelevant and immaterial,

9. Plaintiffs specially demur to Paragraph G of said amendment,

because the facts therein alleged constitute no matter of defense to

plaintiff's petition, and because noe injury is alleged to have been

sustained by defendant on account of the fact that defendant sup-

posed its contract was with one party, when it developed that the

contract was with another party of the same name, and because it is

not alleged that plaintiffs deceived defendant or mislead defendant in

any way, or contributed in any degree to the misunderstanding

of the defendant, if any such misunderstanding existed.

[fol. 72] 10. Plaintiffs specially demur to paragraph K of said

amendment upon the ground that said paragraph sets up no matter

of defense to plaintiffs’ petition, and because no authority was suf-

ficiently vested in any Pepertenen or Officer of the United States

to fix a reasonable profit on sugar, because the Act of Congress ap-

proved August 10, 1917, and referred to in the amendment, is too

vague, indefinite and uncertain to be capable of enforcement, and

because said Act is unconstitutional, null and void, because in vio-

lation of the fifth and sixth amendment of the Constitution of the

United States, and because the allegations are irrelevant and im-

material, and set up conclusions of the pleader which are not author-

ized by law.

11. Plaintiffs specially demur to paragraph L of said amendment,

because said paragraph sets up no matter of defense to plaintiffs’

petition, and because the Act of Congress therein relied on is uncon-

stitutional, null and void because in violation of the fifth and sixt’.

amendments of the Constitution of the United States, in that said

Act is too vague, indefinite and uncertain to be enforceable, and

because the sale of sugar does not constitute a hording thereof within

the meaning of said Act, and because said allegations are vague,

indefinite and uncertain, no issuable facts are set up; said allega-

tions are mere conclusions of the pleader.

12. Plaintiffs specially demur to paragraph M of said amend-

ment because said paragraph sets up no matter of defense to plain-

tiffs’ petition, and because said paragraph sets forth no issuable facts,

but is simply a conclusion of the pleader, and which said conclu

sion is not warranted by the facts attempted to be set up either in this

paragraph or in the other paragraphs of said amendment.

Wherefore, plaintiffs pray that said amendment may be stricken.

Jones, Park & Johnston, Plaintiffs’ Attorneys.

[File endorsement omitted. }

fol. 73] Ix rae District Court or rae Uxirep States ror

THe Soutrners District or Croncta, Westerx Di-

VISION

[ Title omitted |

Onxper Sustaining Demurrer to Derexpant’s Axswern—Filed

‘eb. 25, 1922

The plaintiffs’ demurrer to the defendant's answer, and the plain-

tiffs’ objections to the proposed amendment to the defendant's answer,

in the above case, having come on regularly fom hearing. after argu-

— of counsel and consideration thereof by the Court, It is ordered

as follows:

1. Grounds 2, 3, 4, 5, 6 and 7 of the demurrer to the first count

of said answer are hereby sustained, and the allegations to which said

grounds of demurrer are directed are hereby stricken from said

answer,

2. Grounds 2, 3, 4, 5, 6, 7 and 8S of the demurrer to the second

count of said answer are hereby sustained and the allegations in said

answer to which said grounds of demurrer are directed are hereby

stricken from said answer.

3. The first ground of the demurrer to the first and second count

of said answer as a whole is hereby over-ruled.

1. The objections to the amendment to the answer are hereby

sustained, and said amendment stricken.

This February 20th, 1922.

Beverly D. Evans, United States Judge.

| File endorsement omitted. ]

[fol. 74] Ly Tae Usrrep States District Covet ror tur Sourn-

ekx District oF Groreta, Westers Divistox

| Title omitted |

Amenxpep JUupGMENtT ox — ¥ To Axswer—Filed Feb. 22,

In the above cause, the defendant filed answer, and later filed an

amendment thereto which was allowed by the Court, subject to de-

murrer.

Demurrers to the original and amended answer were made by the

plaintiff, and the court after argument sustained the demurrers, and

portions of the original answer and all of the amended

Mswer

——

The demurrers to the amended answer were made orally, and later

by Penge ein were allowed to be filed in written form.

he judgment of the court suataining the demurrers to and answer

and amendment, is hereby amended by this order, to show that the

+ ruling of the Court striking the amended answer, was on the de-

murrer thereto relating to the merits of the defenses therein set forth.

Done the 21st day of February, A. D., 1922.

Beverly D. Evans, United States Judge.

{File endorsement omitted. |

[ fol. 75 | Ix Unitep States District Court

Exceptions — ORDER OVERRULING DEMURRER TO AMENDED PrE-

TITION, ETC.—Filed May 21, 1921

The Court having overruled the demurrers of the defendant to the

petition of the plaintiff as amended in the above entitled cause, the

defendant now at the term at which said judgment was rendered, ex-

cepts to the ruling and judgment of the court, and prays that these

exceptions may be noted, and preserved in this bill of exceptions

pendente lite.

Watkins, Russell & Asbill, Saussy & Saussy, Counsel for De-

fendant.

The above and foregoing bill of exceptions pendente lite are ordered

filed and made part of the record of said cause.

In open Court the 21st day of May, A. D. 1921.

Beverly D. Evans, United States Judge.

[File endorsement omitted. |

ExcEepTions OF DEFENDANT TO SrrikiNG OF DEFENSES

And now comes the defendant, and files these exceptions to the

ruling and judgment of the court in which the covrt sustained the

demurrers of the plaintiff, to the pleas and answers as amended, of

the defendant, pot prays that these exceptions he noted and ordered

filed. The said defendants assign- as error the said ruling and judg-

ment of the Court, on each of the grounds of demurrer thus sustained,

and excepts to the judgment overruling defendant’s demurrer to pe

tition.

Watkins, Russell & Asbill, Saussy & Saussy, Counsel for De-

fendant.

Exceptions noted and ordered filed.

In open Court, February 21st, 1922.

Beverly D. Evans, United States J udge.

[File endorsement omitted. }

ial eee” er eee ee eT

[fol. 76] Ix Unrrep States Districr Court

Verpict—Filed Mar. 6, 1923.

We the jury find for the plaintiff against the defendant, the sum

lifteen Thousand, two hundred and eighteen and 14/100 Dollars,

principal, with interest thereon at the rate of 7% per annum from

the Ist day of October, 1920,

This 6th day of March, 1923.

W. A. Lane, Foreman.

[ File endorsement omitted. ]

Ix Unitep Srates Districr Court

JUpGMENT—Filed Mar, 7, 1923

The jury having rendered a verdict in favor of the plaintiff against

the defendant for the sum of $15,218.14 principal, ap with

interest thereon from the Ist day of October, 1920, av-The rate of

7% per annum.

It is thereupon considered, ordered and adjudged by the Court that

the plaintiff, Lamborn & Company, do have and recover of the de-

fendant, The A. B. Small Company, the said sum of $15,218.14

principal, together with the sum of $2,592.13 interest to this date, and

future interest at the rate of 7% per annum, and costs of suit to be

taxed by the Clerk. .

This March 7th, 1923.

Wm. H. Barrett, United States Judge.

[ File endorsement omitted. ]

(fol. 77] IN THe Disrricr Court or Tur Unirep STATES FOR THE

SoUTHERN District or GeorGcia, WesTERN Division

| Title omitted }

PETITION ror Writ or Error—Filed May 5, 1923

And now comes The A. B. Small Company, defendant herein, and

Sayvs:

That on or about the 7th day of March, 1923, the District Court

entered a judgment herein in foes of the plaintiff and against this

defendant in which judgment and the proceedings had prior thereto

in this cause, certain errors were committed to the rejudice of this

defendant, all of which will more in detail appear from the Assign-

ment of Errors which is filed in this petition.

Wherefore, this defendant prays that a Writ of Error may issue in

this behalf out of the Supreme Court of the United States for the

correction of errors so complained of, and that a transeript of the

record, proceedings and papers in this cause, duly authenticated, may

be sent to the Supreme Court of the United States.

Fred T. Saussy, Max Asbill, Horace Russell, Edgar Watkins,

Attorneys for Defendant.

[File endorsement omitted. |

[fol. 78] Is rae District Court or THE UNITED STATES FOR THE

WeEsTERN Division oF THE SOUTHERN DistRICT OF GEORGIA

| Title omitted }

AssigxMENT or Errors—Filed May 5, 1923

Comes now The A. B. Small Company, a co yration, defendant

herein, and in connection with its petition for Writ of Error im this

cause assigns the following errors w hich it avers occurred on the trial

of the above stated cause and in the verdict of the jury and the

entry of the judgment in favor of the plaintiff and against the de-

fendant. and upon which errors it relies to reverse the judgment

entered herein as appears of record :

1. Because the court erred in its ruling on the demurrer of the

plaintiff to the answer of this defendant in sustaining the said de-

murrer and in holding that the Act of Congress approved August 10,

1917, known as the Lever Act, is unconstitutional, null, and void,

because in violation of and repugnant to the fifth and sixth Amend-

ments to the Constitution of the United States.

2. Because the court erred in striking those parts of this defend-

ant’s answer wherein defendant pleaded and relied upon the Act of

Congress of August 10, 1917, chapter 53, page 276, which Act de

[fol. 79] fendant pleaded as a valid, constitutional statute of the

United States, and which Act was contended by plaintiff in the de

murrer to defendant's answer to be unconstitutional, null and voi

in violation of and repugnant to the fifth and sixth Amendments te

the Constitution of the United States.

& Because the Court erred in sustaining plaintiff's demurrer t

defendant’s plea setting up the Anti-Trust laws of the United States

as a defense and in striking such defense.

4. Because the Court erred in striking the pleas of defendant and

in sustaining plaintiff's demurrers thereto, such pleas being ba

on the Anti-Trust laws and the pleas in detail showing that the plait

tiff in this ease in conspiracy with others combined to raise the price

of sugar sold in interstate commerce, that such prices were incres

to an exorbitant sum, future contracts exacted, and that to enforee

— oe

the contract sued on would be to make effective an essential part of

such illegal scheme.

fendant to the second count of the declaration of plaintiff, the said

court with the alleged contracts attached thereto failing to state a

cause of action against the defendant.

6. Because the Court erred in not sustaining the demurrer to all

the counts of the declaration of the plaintiff, said counts and the

contracts attached thereto and made part thereof showing that the

alleged contracts were void because vot consticuting any such mutual

obligations as would make them valid.

[fol. 80] 7. Beeause the Court erred in not sustaining the demurrer

to all the counts of plaintiff’s declaration and in not dismissing the

cause, for the reason that the declaration sued on, with the exhibits

thereto attached, showed that the plaintitY was not bound to deliver,

im that each of the alleged contracts contained a provision that

“terms and withdrawals subject to the approval of seller’s credit de-

partment”; such provisions giving the seller the right at its option

fe approve or disapprove any and all withdrawals and such pro-

visions depriving the alleged contracts of mutuality and considera-

ton and making the alleged contracts null and void.

5. Because the Court erred in not sustaining the demurrer of de-

fendant to all the counts of the declaration sued on herein and

erred in not dismissing this cause, it appearing from said declaration

and the exhibits thereto attached that no obligation to deliver ex-

isted under either of said alleged contracts if the “refiner manufac-

turing sugar should be interrupted because of any of the conditions”

named in said alleged contracts, such provisions depriving the alleged

contracts, of mutuality and making them uncertain and indefinite

and not binding on the defendant.

". Because the court erred in not permitting the witness J. E.

Yates, a wholesale grocer of Macon, Georgia, to testify to his sales

‘eginning September Ist, 1920, and continuing ¥% September 30,

(920, and to testify that between said dates he s¢ sugar to retail

erecers in and around Macon, Georgia, in quantities ranging from

wwe hundred pounds to ‘one thousand pounds at prices September

Ist. 1920, of nineieen cents per pound gradually decreasing from that

fol. 81] date to September 30, 1920, when ‘the price was sixteen

ents per pound, said testimony having been offered, objected to,

and the objections sustained by the trial court.

10. Because the Court erred in not permitting the witness R. B.

Small, a wholesale grocer of Macon. Georgia, to testify to his sales

inning September Ist, 1920, and continuing to September 30,

W920, and to testify that between said dates he sold sugar to retail

secers in and around Macon, Georgia, in quantities ranging from

we hundred pounds to two thousand and thirty pounds, at prices

September Ist, 1920, of nineteen cents per pound, gradually de

8—399

BFS AN MEP AT nm sia manne =e se eee

creasing from that date to September 30, 1920, when the price was

sixteen cents per pound, said testimony having been offered, objected

to, and the objections sustained by the trial court.

11. Because the Court erred in not permitting the witness W. E.

Small to testify as indicating market value and as affeeting the ques-

tion of the legality of the resales pleaded to, sales of sugars and quo-

tations equal to and greater and at prices higher than was obtained

about the same time by plaintiff in making its resales.

12. Because the court erred in not permitting the witnesses R. B.

Small and J. E. Yates, wholesale grocers in Macon, Georgia, to tes-

tify as to prices obtained by them from sales of sugar to retail mer-

chants and chain stores for the months of September, October, and

November, 1920.

13. Because the Court erred in directing a verdict for the plaintiff

{fol. 82] on the resale count of its petition, there being evidence

sufficient to demand a submission of the question of the validity of

such resale to the Jury and to support a finding of the jury that such

resale was not fairly made in a reasonable time.

14. Because the Coutt erred in striking defendant’s plea alleging

that plaintiff had no license as a distributor of sugar.

By reason whereof, plaintiff in error prays that the judgment

aforesaid may be reversed, ete.

Fred T. Saussy, Mae Asbill, Horace Russell, Edgar Watkins,

Attorneys for Plaintiff in Error, The A. B. Small Company.

[File endorsement omitted. ]

[fols. 83 & 1] SupersEDEAS BonpD FOR $20,000.00—Approved and

filed May 5, 1923; omitted in printing.

[fol. 85] In THE DistRICT Court oF THE UNITED STATES FOR THE

SourTHERN DistTRICT OF GEORGIA, WESTERN DIVISION

[Title omitted ]

Bill of Exceptions—Filed May 5, 1925

Be it remembered, that on the trial of this case wherein Lemborn

& Company, a partnership composed of A. H. Lamborn, G. P. Tame-

ling, H. B. Hutchins, N. N. Keen, George H. Logan, Karl P. Lind-

gren, C. C. Riggs, C. G. Troup, W. V. Wood, B. W. Dyer, and

Victor R. Hess, was plaintiff, and The A. B. Small Company, a cor

poration, was defendant in this court. A petition was filed by the

plaintiff on the 12th day of April, 1921. Thereafter on the 30th

. day of April, 1921, the defendant interposed its demurrer to said

petition, and on said date filed its answer thereto.

Thereupon the plaintiff on May 14th, 1921, amended their peti-

tion, and on May 19th, 1921, filed an additional amendment to the

petition, On the 19th day of May, 1921, there came on to be heard

the demurrer of the defendant to the petition of the plaintiff and to

the petition as amended, and after argument the Court entered its

findings and order overruling the defendant’s demurrer and amended

demurrer.

To the 1ulings of the Court overruling the demurrer of the defend-

ant to the plaintiff’s petition and the amended demurrer to the pe-

tition as amended, defendant then and there excepted, which excep-

tions were then allowed and are here and now sealed.

Thereafter, on the 20th day of F ebruary, 1922, the defendant

amended its answer by adding paragraphs (a) to (f) inclusive, and

specifically plead as a defense to the Act of Congress approved August

(fol. 86] 10th, 1917, known as the Lever Food Control Act, and also

: plead as a defense the rules and regulations of the United States Food

. Administration.

f To this amendment plaintiff demurred upon the ground that the

x said Act of Congress was unconstitutional, null and void, and of no

effect because in violation of and repugnant to the Fifth and Sixth

Amendments to the Constitution of the United States.

y The demurrer of the plaintiff to the original answer of the defend-

ant and to the amendment filed on February 20th, 1922, came on to

be heard on the said 20th day of February, 1922, and after argument

it the Court sustained the plamtiff’s demurrer to the original answer,

and struck therefrom: the <) delonscs set out therein and also sus-

s, tained the deviurrer of thi planiutl to the amendment and to para-

v. graphs (2) to (f) inclusive thereof, and an order sustaining said de-

murrer was entered on the said 20th day of February, 1922, and on

February 21st, 1922, said order was amended by an explanatory order

entered on said date.

To which said orders sustaining said demurrers and striking the

special defenses of defendant, the defendant, The A. B. Small Com-

pany, then and there excepted, which exceptions were then allowed

and are here and now scaled.

Thereafter, on the 2nd day of February, 1923, the defendant

further amended its answer by adding thereto paragraphs 50 to 58, in-

elusive, specifically pleading the rules and regulations of the United

States Food Administration made under the said Act of August 10th,

1917, requiring the licensing of persons dealing in food products.

Said amendment was allowed by the Court on said date.

[fol. 87] Thereafter at the October term 1922 of said Court, to wit

on the 5th and 6th days of March, A. D., 1923, Honorable William

mm § H. Barrett, Judge presiding, the following proceedings were had:

ML _ A jury having been duly and legally impaneled and sworn accord-

nd § [2g to law, thereupon plaintiff, to sustain the issue on its part, in-

or § ‘oduced certain testimony. After the plaintiff had introduced its

‘testimony defendant, to sustain the issue upon its part, introduced

certain testimony. The evidence and all the evidence affecting the

matters to which this bill of exceptions relates was as follows, to wit:

Plaintiff then offered in evidence the written contracts marked

“Exhibit A” and “Exhibit B,” attached to plaintiff's petition, the first

being No. 672 and dated April 50, 1920, the second being No. 1080

and dated May 7, 1920. As these contracts are already in the record

as part of the pleadings they are not again copies.

CORRESPONDENCE

Letter is from ‘A. B. Small Company, addressed to Lamborn &

Company, Savannah, dated Macon, Ga., August 7, 1920.

“Tf you have on file any order for us for sugar, we would be glad

that you withhold shipment until we advise you further. You no

doubt appreciate the fact that this market is very much overstocked

on sugar just at present.”

Lamborn & Company replied on August 9th:

“Your letter of August 7th received. We are indeed anxious to

accom-odate you in the handling of your sugar purchase, but the

fact of the matter is that the sellers are required to move the sugar

as the storage place at the refinery will not permit of their holding

the sugars indefinitely. We can do doubt arrange to delay shipment

of your sugars until August 15th, but by that time the August por-

tion of your contract must go forward. According to our records

you have not as yet furnished us with specifications covering the

August portion of your contract, and we will appreciate your doing

[fol. 88] so, that we can make shipment by the 15th. While this is

not as long a delay as you

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