soon signed. That he understood what he was signing, and the nature and purpose thereof, can scarcely be gainsaid. It is evident that he believed he was but slightly hurt, and was seemingly anxious to get back to his work, and, so believing, he was willing to accept $10 and acquit the company of further liability.

Whether he knew and understood the full nature and extent of the real injuries sustained is the vital question for consideration. The proofs fall far short of substantiating the complaint as to the nature and extent of his injuries, and at present, according to the medical experts, his physical afflictions consist of arteriosclerosis, double inguinal hernia, and double flat foot. It is not at all probable that the first of these conditions was superinduced by the accident. The evidence does not, in any substantial way, indicate that such was the case. The third, namely, double flatfoot, existed prior to the accident, and was not caused thereby, while as to the right foot the condition may have been, and probably was, somewhat aggravated. As to the hernia, he had been so afflicted upon the right side for the space of three years, and thus far the accident has not contributed consequentially to his ailment. The hernia upon his left side had not developed prior to the accident. The first indication that he had of its existence was the next day, when he says he "discovered something down there where it hurt." Later, however, the trouble became well defined, and on February 26, 1916, when he was examined by Dr. Downs, it was about the size of a walnut. It further appears, however, that at the time of the trial appellee's body was poorly nourished, and that his general health and physical condition were far from good. Such was not the case to the same degree at the time of the accident, for he was doing his work, with some inconvenience only in getting about on account of his feet.

The rule unquestionably applies to settlements of the kind here involved that they neither can nor ought to be impeached and set aside for fraud or mistake, except upon clear and convincing proofs. Chicago & N. W. Ry. Co. v. Wilcox, 116 Fed. 913, 54 C. C. A. 147. Has the appellee met the exigency? For upon him was devolved the burden of so impeaching the release.

As we have seen, no conceivable fraud has been established. That appellee did receive a shock from being thrown against the sink, resulting in some distress to himself, can scarcely be questioned. At that time he was not afflicted with an inguinal hernia on his left side. The following day he experienced pain in that region of his person, and later the hernia developed, so that it became well defined. That he was so afflicted on February 26, 1916, is shown by Dr. Downs, who is corroborated in this by Dr. Longeway and Dr. Marshall. So it appears reasonably clear and certain that the development of this particular trouble began at least about the time of the accident, and that he was then afflicted in a way that was not known to him, and which for that reason was not disclosed to the physician, and consequently not taken into consideration when he settled with the claim agent and gave the release. We think that, under the authorities, there is here sufficient to impeach

the settlement in so far as it relates to this phase of the controversy, and to that extent the release should be set aside.

[4] We agree with the court below that it should not be disturbed as it respects the injury to his foot. Lumley v. Wabash R. Co., supra, is authority for the partial impeachment of the release. Upon the general question of annulling such a release, see, further, Great Northern Ry. Co. v. Fowler, 136 Fed. 118, 69 C. C. A. 106, where the authorities are aptly and clearly discussed and distinguished; also Tatman v. Phil., B. & W. R. Co., supra.

[5] Another contention of appellant is that appellee is estopped from urging the annulment of the release on the ground that he refused to remove his clothing, so that the physican might examine his arm and shoulder, which appellee seemed to think were injured somewhat. That particular supposed injury, however, was not taken into account at the time of the settlement, and no question is made of it in this proceeding, and the incident is not of sufficient consequential importance to base an estoppel upon it against inquiry as to the real injuries sustained.

Decree affirmed.

AMERICAN PRESS ASS'N et al. v. UNITED STATES et al.

(Circuit Court of Appeals, Seventh Circuit. August 25, 1917.)

Nos. 2509, 2510.

MONOPOLIES 12(1)—SELLING LOSING BUSINESS-SHERMAN LAW.

A concern which is going out of business, because it cannot conduct it without loss, may without violation of the Sherman Anti-Trust Law (Act July 2, 1890, c. 647, 26 Stat. 209) sell its plant as a going concern to its only competitor, there being no other prospective purchaser, instead of disposing of it as junk; this not injuring the public, but being to its advantage, as well as that of the seller; the buyer being required to continue fair dealing with the public.

Appeals from the District Court of the United States for the Northern District of Illinois.

Suit by the United States against the American Press Association and others. From decrees dismissing the petition and auxiliary bill of the American Press Association, certain parties appeal. Reversed in part, with direction, and in part dismissed.

Charles E. Hughes, of New York City, for appellants.
Henry S. Mitchell, of Washington, D. C., for appellees.

Before BAKER and ALSCHULER, Circuit Judges, and HUMPHREY, District Judge.

BAKER, Circuit Judge. On August 3, 1912, the United States began a suit against the American Press Association, a corporation, the Western Newspaper Union, a corporation, and others, engaged in furnishing country newspapers with stereotype plates and readyprint service, to enjoin the continuance of acts alleged to be in' viola

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tion of the Sherman Anti-Trust Law. A consent decree was entered the same day. Among other prohibitions, the Western Newspaper Union was permanently enjoined:

"(a) From combining or attempting to combine with the American Press Association, either by purchase, stock ownership, or in any other manner; (c) from selling any of its product or services at less than a fair and reasonable profit, or at cost, or less than cost, with the pupose or intent of injuring or destroying the interstate trade and commerce of the American Press Association or of any other competitors."

On May 9, 1917, the American Press Association filed a petition in the original suit, setting forth changes in condition, on account of which it prayed for a modification of provision (a). To this petition all the parties appeared, evidence was heard, and the court found:

"That the facts set forth in the petition and the evidence introduced to support the same are immaterial; that it is contrary to the whole spirit and purpose of the Sherman Law to authorize one competitor to absorb another competitor, regardless of whether such competitor is able to continue in business or not; and that the sale of such assets and business by the American Press Association to the Western Newspaper Union would be in violation of the Sherman Law."

And thereupon the court decreed that the petition be denied. Cause No. 2509 is an appeal from that decree.

Shortly after presenting the above-mentioned petition, the American Press Association filed an “auxiliary bill," setting forth the same facts and asking the same relief. Parties other than the United States appeared and answered; and the United States filed a motion to dismiss, on the ground that it could not be sued by a private party without its consent. Without passing on the motion, the court dismissed the bill, for the same reasons on which the petition was denied. Cause No. 2510 is an appeal from the decree dismissing the auxiliary bill.

Whether under the stated circumstances the United States may be sued, and whether the auxiliary bill was a proper method of invoking relief, are questions that are now moot, we believe, because the identical controversy respecting facts and law, between the identical parties, was fully heard and determined on the petition in the original suit.

Facts pleaded and proved, so far as necessary for a decision, are briefly these: In 1912 the American Press Association had about 5 per cent. of the ready-print business. But it did not furnish advertisements to the country newspapers with its ready-print service, whereas the Western Newspaper Union did. The result, down to January, 1917, was that the Western Newspaper Union could and did supply ready-print at lower rates than the American Press Association could stand without loss; and the ready-print business of the latter has fallen to less than 1 per cent. In 1912 the American Press Association had a large part of the stereotype plate business. But its plate business had to bear substantially all the overhead expenses, while the Western Newspaper Union's ready-print service could carry the overhead and leave its plate business as a profitable by-product. In January, 1917, the Western Newspaper Union reduced its price on miscellaneous plate matter by one-fourth and on serials by one-third. On the American Press Association's complaint that provision (c) of

the injunction was being violated, the Department of Justice investigated and correctly found that there was no violation.

Since the outbreak of the world war there has been an increasing scarcity of print paper, and mounting prices. Few new country newspapers are being started; many have reduced their sizes; quite a number have quit. This condition brought the American Press Association's plate business to a loss of over $3,000 a month, which is progressively increasing, and has also made it impossible for that company to build a ready-print business to help bear the overhead. The directors have decided to wind up the plate business as speedily as possible, whatever may be the outcome of this proceeding. They are continuing it at a loss while the question is being determined whether they must dispose of their plate plant as junk, or whether they may sell it as a going concern to the Western Newspaper Union, for the latter is the only probable bidder. No one now outside the business would be likely to buy a demonstrated loss. But to the Western Newspaper Union the plant may have more than junk value. If the plant is broken up, the newspapers now being served thereby may have to go to the Western Newspaper Union as the only concern left in the business; and it might be more economical for that company to buy an existing plant than to enlarge its own or build a new one. At the same time it is evident that, if the plant is disintegrated, the newspapers now looking to it would suffer inconvenience and loss while arranging to obtain other service.

What is the application of the Sherman Law to these facts? Not every joinder of competing businesses or acquisition of instrumentalities that have been used in competition is an undue restraint of trade or a creation of a monopoly. Each situation must be measured by the rule of reason. And a fundamental test is injury to the public. If it were not for provision (a) of the decree, and the law back of it, these two companies might get together and fix a price that would provide a reasonable profit to the American company and an unreasonable one to the Western. For the newspapers, and through them the public, to pay for the profitable operation of an inefficient concern is an injury. And a combination to that end would be an unreasonable restraint of trade. That course cannot be pursued. And, because it cannot, the American company is forced to go out of the plate business. No decree can stop that. And after the American company quits, if the Western is left alone in the field, the ultimate situation of the country newspapers would be the same whether the plant be scrapped or sold as an integer. Neither the decree nor, in our judgment, the Sherman Law, prevents the Western from buying the scraps piecemeal. If it did buy, it could organize them anew. If it be permitted to buy the integer, it would save the expense of reorganization. If the plant be scrapped, two injuries result: One to the public from the destruction of a usable and useful plant; the other to the stockholders of the American company.

As to the first, a law designed to shield the public from injury should not be construed to compel the public to suffer an injury. As to the second, the Sherman Law, in our opinion, does not require the stock

holders of a company, even a company that was a self-confessed wrongdoer in 1912, to sustain a loss in 1917 arising without wrongdoing, if that loss can be prevented without injury to the public. Injury can be prevented, we believe, by attaching to the permission to buy the plant as a going concern a condition which should be read in the light of provision (c) of the injunction. Within common knowledge one of the evils at which the Sherman Law was aimed was the acts of monopolizers in killing competitors, by selling at less than cost of production and then mulcting the public for the expense of the campaign with undue profits added. For practices of that kind during and prior to 1912 the Western Newspaper Union was put under the continuing prohibition of provision (c). Since 1912 it has not charged less than cost plus a fair and reasonable profit. On the other hand, the record, at least inferentially, demonstrates that it has not exacted more than cost plus a fair and reasonable profit. If it continues in the same even tenor of fairness, if it refrains from putting up prices that would incite outside capital to unneeded offers of like service and then killing competition by underselling at a loss, to be recouped by fixing unwarranted prices again, we perceive no reason why it should not be permitted to buy the plant as a going concern.

In No. 2509 the decree denying the petition is reversed, with direction to enter a decree, supplemental to the original decree, authorizing the Western Newspaper Union to be a bidder and purchaser at a sale by the American Press Association of its plate plant and business as a going concern, on the condition and under the prohibition that the Western Newspaper Union shall not employ the plant and business so purchased, or use the situation created by such purchase, to charge more for its plate service to newspaper publishers than cost of production plus a fair and reasonable profit, such fair and reasonable profit to be measured relatively by the range of annual profit obtained by the Western Newspaper Union from its plate business since the entry of the original decree of August 3, 1912, without, however, depriving the purchaser of such profits as result from its purchase by reason of the increase of business and the economies in the cost of production following the same; provided that present prices for plate service to newspaper publishers shall not be increased, unless, but not longer than, an increase is warranted by increase in cost factors.

In No. 2510, the appeal is dismissed, without taxation of costs, in favor of appellees.

CITY OF PORT WASHINGTON v. THACHER.

(Circuit Court of Appeals, Seventh Circuit. July 27, 1917.)

No. 2438.

1. CONTRACTS 322(2) -PERFORMANCE EVIDENCE.

In an action for damages for breach of contract providing for the laying of an intake pipe extending into Lake Michigan 2,800 feet, plaintiff contractor might, where the city claimed that by reason of defects in the pipe water close to the shore entered the pipe, show that the number of bacFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes