Opinion of the Court. property, together with the statement that the acetylene is prepared and pressed into porous substance by the plaintiff, the latter's compliance with certain governmental specifications, and that, when empty, it is to be redelivered to plaintiff. The defendant Auto Acetylene Light Company is engaged at Toledo, Ohio, in manufacturing and selling acetylene gas in tanks of the same general nature as those of complainant and in refilling the same. The defendant Young is the general manager of the corporate defendant. The bill of complaint alleges defendant's knowledge of plaintiff's rights, including its contracts and exchange service, and charges that defendants are inducing, procuring, and assisting plaintiff's customers to violate their contracts with plaintiff, by refilling plaintiff's tanks with defendants' acetylene gas, to plaintiff's injury, as specifically set forth in the bill. An injunction was prayed against such interference with plaintiff's rights. Hearing was had upon affidavits presented by both parties, and preliminary injunctions allowed. Defendants answered, denying the jurisdiction of the court, as well as plaintiff's right to relief upon the merits, alleging especially, in substance, that plaintiff's contracts with its consumers amounted really to sales, that such consumers believed that they were thereby purchasing the tanks, and that the contracts violate the Clayton Act. The corporate defendant also asked that plaintiff be enjoined from respresenting to its customers that plaintiff is the owner of the tanks, and from seeking to prevent such consumers from having their tanks refilled by defendant. In overruling a motion for rehearing of the application. for preliminary injunction, upon which numerous affidavits were filed by each party, the court suggested that final submission be stipulated, "if there [539] is nothing more of fact to be advanced." Counsel accordingly stipulated for such submission "upon the pleadings and affidavits heretofore filed and the record herein." The final decree, which is the subject of this appeal, was thereupon entered, enjoining defendants from interfering with plaintiff's system of exchange, causing such welding service contracts to be vio Opinion of the Court. lated, procuring the delivery of plaintiff's exhausted tanks to any one other than plaintiff for refilling or otherwise, from receiving or refilling such tanks or damaging the same, and from dealing in or exchanging plaintiff's welding tanks. [1] Jurisdiction. The fifteenth paragraph of the bill asserts that the value of plaintiff's business of distributing acetylene gas through its service system and its contracts, and the value of plaintiff's contracts with its customers, as well as the amount in controversy, exceed $5,000, exclusive of interest and costs. The answer denied generally the allegations of this paragraph. The bill also alleged that plaintiff was a corporation organized under the laws of New York and a citizen and resident of that state, that the corporate defendent was organized under the laws of Ohio and was a citizen and resident of that state, and that both defendants were citizens and residents of the Northern district of Ohio; jurisdiction being claimed on account of this diversity of citizenship. The answer disclaims knowledge or information as to whether plaintiff has the corporate organization and citizenship alleged, and for lack of knowledge thereof denies the same. The bill of complaint was sworn to upon knowledge and belief; the answer, on belief. The affidavits are silent upon both questions of jurisdiction. Passing the question whether the submission of the case upon the affidavits amounted to an admission that there were no controverted questions of fact as to jurisdiction, the burden of proof was upon defendants as to whatever issue was presented respecting the amount in controversy. Hunt v. N. Y. Cotton Exchange, 205 U. S. 322, 335, 27 Sup. Ct. 529, 51 L. Ed. 821. Not only is there no apparent reason in principle for distinguishing, as respects burden of proof, between allegations of plaintiff's residence and citizenship and the amount in controversy, but upon express authority we think the burden on defendants as to the former question as well. Adams v. Shirk (C. C. A. 7), 117 Fed. 801, 803, 55 C. C. A. 25; Hill v. Walker (C. C. A. 8), 167 Fed. 241, 243 et seq., 92 C. C. A. 633; Nichols v. Cleveland (C. C. A. 6), 247 Fed. 731 and note at 733, 159 C. C. A. 589; Foster's Fed. Opinion of the Court. Practice (4th Ed.), vol. 2, p. 960. Apart, therefore, from the fact that the assignments of error do not raise the question of jurisdiction, we think defendants precluded from asserting in this court the defense of lack of jurisdiction, which, indeed, seems never to have been brought to the actual attention of the District Court. It would, however, be our duty to dismiss the suit upon our own motion, if it [540] satisfactorily appeared that it does not involve a controversy within the jurisdiction of the District Court. Judicial Code, § 37 (Comp. St. § 1019). But such is not the case. Upon the face of the pleadings jurisdiction is, prima facie, affirmatively shown. Adams v. Shirk, supra, 117 Fed. at p. 805, 55 C. C. A. 25. Not only would there otherwise seem no reason to question that plaintiff is a citizen of New York, in view of the express and sworn allegation of the bill and its denial only for lack of knowledge, but in the ease of this plaintiff against these same defendants, heard in the court below and reviewed here (264 Fed. 810 [No. 3354]), the bill expressly asserts that the plaintiff is "a corporation organized and existing pursuant to the laws of the state of New York, and is a citizen of said state"; the answer in terms admits "the corporate capacity of the plaintiff herein," which normally means its corporate capacity as stated in the bill. As to amount or value in dispute the same result must be reached. As said in Bitterman v. L. & N. Ry. Co., 207 U. S. 205, 225, 28 Sup. Ct. 91, 98 (52 L. Ed. 171, 21 Ann. Cas. 693) the substantial character of this averment is "to be tested, not by the mere immediate pecuniary damage resulting from the acts complained of, but by the value of the business to be protected and the rights of property which the complainant sought to have recognized and enforced. Hunt v. N. Y. Cotton Exchange, 205 U. S. 322, 336." It is manifestly impossible for any one to state accurately in advance the actual pecuniary loss which would result to a See, in this connection, Chase v. Wetzler, 225, U. S. 79, 85 et seq., 32 Sup. Ct. 659, 56 L. Ed. 990; Roberts v. Langenbach (C. C. A. 6) 119 Fed. 349, 352, 56 C. C. A. 253; Detroit, etc., Ry. Co. v. Kimball (C. C. A. 6) 211 Fed. 633, and note at page 635, 128 C. C. A. 565. Opinion of the Court. plaintiff through the alleged threatened injuries. Griffith v. Vick Co. (C. C. A. 6) 272 Fed. at pp. 248, 249. The evidence in this case generally as to the nature and extent of plaintiff's business makes it appear not improbable that the business sought to be protected is worth much more than the jurisdictional amount of $3,000, and, indeed, that the threatened acts of defendants might reasonably be expected to cause damage to plaintiff in excess of that sum. [2] 2. Does plaintiff own the tanks? Its written agreements with consumers in plain terms declare that the tanks are not sold, but remain plaintiff's property. They recite that plaintiff is engaged in manufacturing and distributing Prest-O-Lite gas, consisting of dissolved acetylene compressed and stored in uniform steel cylinders, to be used for welding and other purposes; that after a certain use the acetylene becomes exhausted, and that other changes from wear and tear occur, making it impracticable and unsafe for others than the original manufacturer to refill the tanks; that it is necessary that plaintiff hold tanks in reserve while the empty cylinders are being retested, repaired, and refilled, in order to obtain continuous and uninterrupted service. There is express declaration that for the reasons recited it is intended that the title to the cylinders should remain in plaintiff; that in consideration of the consumer's payment as rental of $25 or $50 (dependent on the size of tank), plus an exchange fee later mentioned, plaintiff shall deliver to the consumer at any of its branches or operating plants east of the state of Colorado a given number of tanks of a described style filled with acetylene gas, and shall [541] hold at the consumer's disposal (or that of the holder of the cylinders) reserve tanks necessary to make immediate exchanges. It is provided (1) that the tank shall be redelivered to plaintiff whenever it becomes exhausted of gas, plaintiff thereupon immediately delivering to the consumer (or to the holder of the redelivered cylinder), not the same tank, but a standard tank of similar size and style, regardless of the condition in which the surrendered tank might be at that time through ordinary wear and tear, unavoidable Opinion of the Court. accident, or act of God; (2) that in such exchange no payments shall be made plaintiff at greater rate than the lowest current price charged by it for exchanges in similar quantity in the locality where the tank issued shall be used, such exchange price being based on the number of cubic feet of acetylene gas contained in the tank; (3) that, if plaintiff unreasonably refuses to issues its tanks as agreed, it shall pay the consumer (or his assignees) an amount equal to the sum paid upon the original issue of the tank, less 5 per cent. for each year the agreement shall have run, but in no case less than 50 per cent. of the original payment; (4) the customer is given authority, through transfer of the tank, to assign all his rights therein. [3] There is convincing evidence that defendants were actively assisting and encouraging consumers to violate their contracts with plaintiff in having Prest-O-Lite tanks filled by defendants, instead of returning them to plaintiff for that purpose, and with knowledge that they are stamped as plaintiff's property. This is plainly an invasion of plaintiff's rights, unless its contracts with its customers amounted to sales of the tanks, or are void, because unconscionable when made, or for violation of the Clayton Act. We think the contracts under which the tanks were issued are plainly incapable of an interpretation as intended to pass plaintiff's title to the tanks, and that consumers would not be justified in thinking otherwise. [4] 3. In our opinion plaintiff's contracts cannot be declared unconscionable. It is not open to defendants to raise this question, unless in the right of consumers. The substance of the showing (so far as satisfactory), which may be thought to affect the question of unconscionableness is, we think, this: Plaintiff has no depot at Toledo; its nearest station being at Detroit, which is about 60 miles away. To send cylinders back and forth by rail takes time. The defendants do business at Toledo, and there is testimony on the part of several of plaintiff's customers that defendants' service would be more economical, prompt, adequate, and satisfactory than the given consumer was then able to obtain from plaintiff, and that, but for the provisions of the con |