made if it had been allowed to continue its business in competition with the defendant.

For defense the defendant offered evidence tending to prove that no injury had been inflicted upon the plaintiff by anything it had done or had permitted to be done, but, that, on the contrary, its control had been to the plaintiff's financial advantage; that if it inflicted any injury upon the plaintiff it was done without intent to injure; and that the conduct of its control and its management of the plaintiff's properties and the marketing of its product through the channels employed were pursued according to the terms and within the spirit of contracts sought by all the plaintiff's stockholders and entered into between the defendant and all the plaintiff's stockholders (save one), in which contracts the plaintiff corporation actively participated and all its stockholders (including this one) freely acquiesced through a long period of years, so that, the defendant maintained, if its conduct be found to offend the provisions of the Sherman Act, then the plaintiff was in pari delicto and was without right to recover. The defendant further pleaded the statute of limitations.

The jury rendered a verdict for the defendant; on the judgment entered, the plaintiff sued out this writ of error.

This trial, covering a period of forty-five days, produced a record of unusual length. Eighty-four errors are assigned. While some of the assignments bear upon separate and unrelated matters, it has been possible, with the assistance of counsel, to so group the most of them, that the substantial questions may be considered and determined upon broad principles of law.

Before we approach the trial and follow its trend, we shall dispose of a number of assignments of error arising out of certain action which the court took before trial.

[1] In addition to testimony from witnesses to be produced at the trial, the plaintiff proposed to prove its case by introducing the findings of a master in the case of Steele v. United Fruit Company et al., heard and decided in the Circuit Court of the United States for the Eastern District of Louisiana (190 Fed. 631) and affirmed by the Circuit Court of Appeals for the Fifth Circuit (194 Fed. 1023, 114 C. C. A. 666).

That was an action against the United Fruit Company and others, instituted by a stockholder of the plaintiff, and concerned the defendant's stock control over the plaintiff. The findings recited in detail the manner of its acquisition and exercise. The plaintiff conceived that many of the facts upon which the decree in that case was based would sustain a judgment in this case, and therefore their submission and determination in that case constituted res judicata in this case. If that were so, then manifestly the plaintiff would have the great advantage of being relieved of the necessity of proving here what had there been judicially determined, and the defendant would have the corresponding disadvantage of being concluded thereby. So in order to ascertain before trial what the court would decide at trial as to whether and to what extent the findings in the Steele Case were res judicata of the issues in this case, the plain

tiff petitioned the court for a preliminary hearing upon those questions. Upon granting the petition and stipulation by counsel as to questions submitted and exceptions reserved, the court, in a commendable effort to facilitate the litigation, attempted the doubtful expedient of declaring before trial what would be its decision at trial upon the offer of the master's findings as res judicata.

Having before it the full record of the Steele Case and only so much of the record of this case as had then been made by the pleadings, the trial court heard argument and stated in advance the rulings which it would make at the trial.

To the first question-whether or not the findings and conclusions in the case of Steele v. United Fruit Company in the District Court for Louisiana are res judicata as to any of the issues in this case-the court stated it would rule that:

"Such of the findings and conclusions in the Steele Case as are material and essential as a basis for the decrees therein are res judicata in so far as they are material and relevant to the determination of the issues in this case."

To the next question-to what extent are the findings and conclusions in the Steele suit res judicata-the court announced that they would be held to be "res judicata only in so far as they are evidence

"1. To show domination and control of the Bluefields Company by the United Fruit Company up to the time of the commencement of the Steele suit; "2. To show intent to dominate and control;

"3. To show intent through domination and control to injure the business or property of the Bluefields Company in restraint of interstate or foreign trade

or commerce.

4. To show that, through such domination and control, injury was done resulting in damage to the business or property of the Bluefields Company within the period of the applicable statute of limitations.

"They are not res judicata as to the extent of damages suffered by the Bluefields Company, because the extent of damages was not in issue in the Steele Case."

The court then passed upon and designated the particular findings and conclusions of the special master (being thirty-four in number) which were within its ruling. When the case came on for trial and the record grew from pleadings of parties to testimony of witnesses, the court, acting within what appears to be a deliberately made saving clause in its advance statement, refused to hold as res judicata some of the findings it had previously designated as such, because found immaterial and irrelevant to the issues in this case as they had developed. The plaintiff therefore claims, under appropriate assignments, that the court erred greatly to its prejudice: (1) By refusing to admit as res judicata certain findings and by striking out others; (2) in admitting evidence offered by the defendant tending to contradict matters concluded by the findings; and (3) in neutralizing or devitalizing certain other findings, duly admitted, by charging the jury in a manner inconsistent with their proper application.

We think no criticism should be directed to the trial judge for his change of attitude at trial, for to determine before trial, merely from examination of pleadings and before the case has broadened into tes

timony, whether matters in a case previously tried are material and relevant to a case yet to be tried, is a judicial task rather difficult of accurate performance. Apparently alive to this, the judge wisely saved himself in his advance ruling by deciding generally that the matters in the Steele Case were res judicata in this case only in so far as they proved material or relevant to the issues in this case. The effect of that ruling was to defer to trial final decision on questions of materiality. Upon discovering that some of the findings which he had thought would be relevant were not relevant, the trial judge very properly refused to admit certain of them, struck out certain others after admitting them, and in his charge explained or limited others. We are of opinion that in stating in advance of trial that findings in the Steele Case would be ruled res judicata in this case according to their materiality and relevancy in this case, the court did not foreclose to itself the right to rule at the trial upon their admissibility according as their materiality and relevancy developed in the progress of the trial, and therefore in ruling at the trial in a manner different from what it indicated before trial, the court did not err. Evidently anticipating the possibility of such action, counsel for the plaintiff very wisely did not rely for proof of their case upon the court's advance statement of what it would do, but proceeded to prove it by testimony of witnesses, though seeking, of course, to hold the tactical advantage of the court's advance rulings in an effort to lock their case by the concluding effect of res judicata.

But as the rulings when made at the trial were duly excepted to, the questions still remain whether the matters to which they related were res judicata. In order to determine these questions we must inquire into the Steele Case and ascertain what was that case, what were the issues raised and contested, the nature of the findings, the character of the relief sought and afforded, and what was there decided.

The Steele Case was begun by bill filed in the Circuit Court of the United States for the Eastern District of Louisiana, on December 3, 1909, by Frederick M. Steele (on his own behalf as well as on behalf of all other stockholders of the Bluefields Steamship Company, who chose to intervene) against United Fruit Company, Bluefields Steamship Company, Jacob Weinberger, Charles Weinberger, and certain other individuals, officers and stockholders of both companies. Adolph Segal, a stockholder, intervened, and Simon and Emanuel Steinhardt, codefendants, filed cross-bills, all praying substantially for the same relief; the remaining parties answered. Issue being joined, the case was referred to a special master.

As the reference was made upon the pleadings, and the decree upon the findings, we must first inquire into the bill. The stating part of the bill recited acts and conduct of the Fruit Company in the unlawful acquisition and exercise of control over the Bluefields Company. Much of this conduct, stated at length and in detail, was pleaded we think rather as inducement or matter leading up to the matter particularly complained of and from which relief was sought. The matter complained of was: (1) That the Fruit Company controlled by stock ownership the Bluefields Company; (2) that its control was hidden by an assignment of its stock to the Weinbergers. The relief prayed for was

that it should be enjoined from further exercising such control, the right to such relief being based upon the law of Louisiana, which forbids the ownership and voting of stock in one corporation by a competing corporation, and the control of one corporation by another. The Bluefields Company was a Louisiana corporation subject to Louisiana law. The specific relief asked was, that (1) "Jacob Weinberger and Charles Weinberger be decreed not to have any title * * * in the stock of the Bluefields Steamship Company assigned to them by the United Fruit Company (and in certain other shares assigned by William Adler) and that they and each of them be enjoined from voting * * * such stock at a meeting of the Bluefields Company to be held on December 13, 1909, or at any meeting of that company; (2) that the United Fruit Company be enjoined from attempting directly or indirectly or through or by the said Jacob Weinberger or Charles Weinberger * to vote any stock of the Bluefields Steamship Company or to control, interfere with, affect or influence the said Bluefields Steamship Company in any of its affairs or in the election of its directors and officers; (3) that the said United Fruit Company be enjoined from claiming any right or interest in the stock of the said Bluefields Steamship Company by reason of holding the same as collateral security; * * *" and (4) that the receiver for the Bluefields Company appointed pendente lite be continued, and its officers, agents, servants and attorneys be enjoined from interfering with its business during the receivership.

The master's findings of fact, being fifty-three in number, sustained not only the main allegations of the bill, that the Fruit Company had acquired stock control in the Bluefields Company and had exercised that control contrary to Louisiana law, upon which was based the complainant's right to the relief prayed and ultimately granted, but sustained in detail the allegations of acts and conduct of the Fruit Company, by which that control, made unlawful by the law of Louisiana, had been acquired and exercised (such findings of acts and conduct being the principal matters urged as res judicata of the issues of the case now before us).

Upon the master's findings the court entered its decree. By the decree the court (1) overruled exceptions to the master's report, (2) dissolved the preliminary injunction enjoining an election of officers and directors of the Bluefields Steamship Company, (3) directed an election of that company to be held by the master, (4) enjoined the Fruit Company and Charles and Jacob Weinberger from voting at that or any other election of the Bluefields Company the shares of the capital stock of that company assigned by the former to the latter, and (5) maintained the receiver in control of the property of the Bluefields Company.

Upon petition previously presented by the receiver representing that he believed "that the Bluefields Steamship Company, Limited, has a very large, well-founded and provable claim for damages against the United Fruit Company and that suit should be prosecuted on behalf of said Bluefields Steamship Company, Limited, and against the said. United Fruit Company for recovery of such damages," and praying leave to intervene in a suit then brought or to be brought, or to insti

tute a suit to that end in the District Court of the United States for the Eastern District of Pennsylvania, the court by decree (made before approval of the master's findings and before the final decree above referred to) authorized the receiver to so intervene or institute an action of his own "to recover for and on behalf of Bluefields Steamship Company, Limited, and against the Fruit Company on said claim such amount as might justly be owing, as prayed for in the petition."

We have recited at some length the offense charged and relief sought and granted in the Steele Case in order to disclose the controversy in that case, and show the matters to which the allegations of the bill were addressed, the inquiry and findings of the master were directed and the decree of the court extended.

The inquiry of the master followed the stating part of the bill, which covered a wide range and dealt with the relations of the two companies -the dominant conduct of the one and the servient conduct of the other-through the period of years they were in business association. As the District Judge (Louisiana) said in his opinion:

"The master endeavored to deal specifically with all the contentions of the parties and to find the facts with particularity, those collateral as well as those material to the main issue."

He further said:

"There appears to be evidence to sustain all of the master's findings of fact, though I have not examined with particularity those matters not bearing directly on the main issues before me."

The "main issues," clearly shown not only by the court's decree but by its accompanying opinion (the decree authorizing the receiver to bring this action having already been entered on his petition), were (1) whether the two corporations had been competing corporations, (2) whether one had acquired and exercised over the other a control forbidden by the laws of Louisiana, and (3) whether that control had ceased and terminated by the transfer of its shares to the Weinbergers. Some of the findings manifestly did not bear upon these main issues. Under no theory can they be res judicata in this action; while those which were material to the main issues are res judicata and concluding upon the defendant in this action only if the matters there determined and here upon trial were in controversy between the same parties and were identical.

[2] In considering these assignments we do not think it necessary to repeat or review the elaborate discussion in the briefs on the rule of res judicata. As to the reasons upon which the rule is founded and the principles by which it is controlled there is no dispute. We are concerned only with its application. The doctrine of res judicata is plain and intelligible, and, as stated in Foster v. The Richard Busteed, 100 Mass. 409, 412, 1 Am. Rep. 125, amounts simply to this, that a cause of action once finally determined, without appeal, between the parties, on the merits, by a competent tribunal, cannot afterwards be litigated by a new proceeding either before the same or any other tribunal.

[3,4] It is an elementary conception of the doctrine that in order to make a matter res judicata there must be a concurrence of several