FREY & SON, INC. V. CUDAHY, 256 U. S. 208 (1921)

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U.S. Supreme Court

Frey & Son, Inc. v. Cudahy, 256 U.S. 208 (1921)

Frey & Son, Inc. v. Cudahy

No. 200

Argued March 16, 1921

Decided April 18, 1921

256 U.S. 208


1. When the circuit court of appeals reverses a judgment of the district court in an action at law, and the defeated party brings the case here by waiving his right to new trial and consenting to entry of final judgment against him in the circuit court of appeals, this Court must affirm if error necessitating reversal was assigned and relied upon in that court even though the ground of the decision was different and untenable. P. 256 U. S. 210. Thomsen v. Cayser, 243 U. S. 66.

Page 256 U. S. 209

2. An agreement between manufacturer, jobber, and wholesalers to maintain resale prices need not he formal to violate the Sherman Act, but may be implied from a course of dealing or other circumstances. P. 256 U. S. 210. United States v. Schrader's Son, Inc., 252 U. S. 85.

3. But the mere facts that a manufacturer indicated a sales plan to wholesalers and jobbers fixing prices below which they were not to sell to retailers, and called this feature very often to their attention, and that most of them did not dissent, but cooperated by selling at the prices named, do not suffice to establish an agreement or combination forbidden by the Sherman Act. P. 256 U. S. 211.

261 F. 65 affirmed.

Error to review a judgment of the circuit court of appeals reversing a judgment obtained by the present plaintiff in error in an action for triple damages under the Sherman Act in the district court. The facts are stated in the opinion.

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