would have great difficulty in finding that they show such an attempt at monopolization as is necessary to maintain this suit. If, however, you find that they bear a relation to each other, and the facts satisfy you, in the manner that I have charged you, that they are part and parcel of a general plan, or steps in a deliberate purpose, the question then is: What is that plan or purpose? Such plan might be either legitimate or illegitimate. Was such a plan or purpose to merely protect the legitimate interests of the defendant in the trade, that is, was it for the purpose of protecting such part or all of the trade which it had acquired theretofore by legitimate means, or which, by reason of its capacity and ability to supply, it was reasonably entitled to in free and open competition; or was it to harass and oppress its competitors so that in the end, be it near or far removed, they would cease to be independent competitors and leave it master of the market? If you find that such protection, and not oppression, was the purpose and the use made of such steps or parts of a plan, then the defendant is not liable in damages simply because as an incident to the carrying out of that plan, a competitor was injured in his business or property."

This states the law about as definitely and comprehensively as it has ever been stated. It also indicates the tremendous importance which isolated acts of salesmanship may assume, when they are grouped together for consideration by a jury. Indeed, aggressive sales methods are the commonest form of evidence in anti-trust cases, and every manufacturer should scrutinize his sales policies with the greatest care. Fortunately the courts have pointed out certain kinds of competitive acts which are regarded as objectionable, and which will pretty certainly be construed as evidence of an intent to restrain trade unlawfully.

CHAPTER II

LETTERS THAT SPELL CONSPIRACY

EVERY business man writes letters. As a part of the regular daily routine, letters go out to customers and possible customers, to jobbers and dealers, and to the sales force: letters which quote prices, answer inquiries, seek information, settle disputes, declare policies. Instruction and encouragement are imparted to the selling organization by letter, and some form of "gingerup" matter has come to be a regular institution in most concerns which do business over any considerable territory. The entire history of almost any business can be traced, step by step, and in the completest detail, by examination of its correspondence files and scrap-books.

More than that, the underlying motives of almost any business can be reconstructed by skilful piecing together of various specimens of its written and printed communications. The materials for

such a reconstruction are nearly always in existence, and the officials of the Department of Justice are adepts at the work. When a concern is complained against as being in violation of the antitrust laws, the first step is usually a conference in the office of the United States District Attorney, and the second is the official examination of the correspondence as far back as the Government cares to go. The District Attorney is refreshingly frank about it. He "requests" the privilege of ransacking your letter files and your scrap-books in order to determine whether or not you really intended an unlawful restraint of trade. He admits that you are perfectly at liberty to refuse, whereupon he will be obliged to go into court and commence proceedings which will authorize him to do it. Furthermore, your refusal will be construed as an admission that you have something to conceal, so that on the whole it is better to yield gracefully in the first place.

The emissary of the Government comes to your office, and spends as much time as he sees fit in going over the records of past correspondence. He takes copious notes, paying particular attention to form letters which have been mailed to the trade and to the bulletins containing instructions

for the sales force. Then he goes away, and perhaps the Attorney-General then prepares his bill of complaint. Later on, if the case comes to trial, a subpæna duces tecum can be relied upon to produce the original documents in court. The court may not agree with the Government as regards the motive behind the letters, but the significant fact remains that those very letters, which may have reposed in the files for years on end, are quite likely to prove one of the most important factors in the whole case.

Indeed, the results in so many important cases have hinged upon the interpretation which should be placed upon a group of letters-and sometimes upon a single letter-that it has been thought wise to emphasize this phase of the subject thus early in this discussion. As has been stated, every business man writes letters, and there are few business houses that do not at some time or other issue statements of policy to the trade or to their own organizations. In view of the activity of the Government, and the emphasis which has been placed upon communications of this nature in anti-trust suits, it is of the highest importance to avoid carelessness of phraseology in letters which are meant to define sales policies.