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Opinion of the Court.

difficulties in which it found itself with the defendants, and that those services extended over a period from July, 1910, to December, 1911. The plaintiff regarded the reasonable value of his services as worth from $8,000 to $10,000. On December 10, 1911, he was

asked by the president of the Lake Shore Company whether he would be willing to bring suit against the defendants, [236] and that he replied that he would bring the suit, being satisfied that the company had a valid claim, and that it would cost from $8,000 to $10,000. He was informed by the president of the company that it had been losing money very heavily, and it was absolutely impossible for it to undertake any litigation of that kind. He was asked what the company already owed him, and replied in the neighborhood of $9,000 or $10,000. He was told the company did not have the money and could not pay him, and thereupon he said that, if the company would pay him $5,000 in cash, he would cancel the indebtedness. After some reflection the president, Mr. Mandelbaum, told him that the corporation would transfer to him all rights it had against the defendants if he would be willing to accept it as a satisfaction of the company's indebtedness to him. The plaintiff told him that he would think it over and give him an answer. After a few days' reflection the plaintiff expressed a willingness to accept the assignment, and was told that the board of directors wanted to know whether, if they made an assignment, the plaintiff would as a part of the consideration defend the company and its officers in case any suit was brought against them in matters growing out of their difficulties with the defendants. He agreed to do this, and the assignment was executed.

"It appears, therefore, that the assignment originated, not with the plaintiff, but with the Lake Shore Company, and that the consideration for the agreement involved the payment of a past indebtedness, as well as for future services of a professional character. It is also to be noted that the invalidity of the assignment is set up, not by the client, the assignor, who has at no time sought to repudiate it, but by third parties, between whom and the plaintiff no fiduciary relations have existed."

At the conclusion of the evidence the defendants asked a directed verdict on the ground that the plaintiff [237] has not shown title to this cause of action; on the ground that it now affirmatively appears from the evidence in this case that the agreement under which the plaintiff assumed to bring this cause of action is champertous and void." Thereupon the following occurred-Mr. Rogers representing the plaintiff :

"Mr. ROGERS. If your Honor is going to grant the motion for a direction of a verdict I will take a formal objection to it, but my request is that if your Honor is going to find for the defendant, that it be a non-suit to the plaintiff's cause of action. I think that is as far as your Honor can go.

Opinion of the Court.

"The COURT. You may be right, but the defendant has rested and moves for the direction of a verdict, and I am going to pass on that motion.

"Mr. ROGERS. But, your Honor, I submit there aren't any questions of fact on which to go to the jury; I submit the matter is purly a matter of law for your Honor to determine, and I think the question whether the agreement is or is not champertous is one of law for the Court.

"The COURT. Well, Mr. Rogers, you may either rest on the motion of the defense and take an exception to such ruling as I make, if it should be adverse, or you can ask to go to the jury. That is entirely for you to determine.

"Mr. ROGERS. Well, if there are any questions of fact to be disposed of, your Honor, I ask to go to the jury upon the questions of fact.

"Mr. SEABURY. I think he should specify and not put a hypothetical motion.

"The COURT. I cannot have any 'ifs.' If you think under Section 973 of the Code, the Court has no right to make a direction, and you are right about it, you will have a good exception; if, on the other hand, the Court is right, your exception will be addressed not to [238] the question of practice, but to the substantive questions in the case.

"Mr. ROGERS. Then, your Honor, may I state my position on the record?

"The COURT. Yes, certainly.

"Mr. ROGERS. The defendant having moved for a direction in order to preserve the plaintiff's rights, I beg leave to state my position on the record with the permission of the Court.

"My understanding is that the question is one of law to be passed upon by the Court from the facts adduced. If, however, it is necessary in order to preserve the plaintiff's rights that I make a request to go to the jury, I ask to go to the jury upon the question as to whether or not the plaintiff took an assignment of the cause of action for the intent and purpose to begin an action thereon, and whether the assignment to him was bona fide for an antecedent indebtedness.

"The COURT.

The Court cannot take conditional offers. Counsel is at liberty, if so advised, to request to go to the jury and the Court will rule.

"Mr. ROGERS. Then I move for a direction, your Honor, for the plaintiff, upon the issue framed under your Honor's order on the ground the defendant has failed to make out the defense set up in the answer, to wit, that the plaintiff purchased this cause of action that is the defense that is set up-and I desire to call your Honor's attention particularly to the form of the defense as pleaded. The defense is that this plaintiff's title is void because he pur

Opinion of the Court.

chased this cause of action with the intent to sue thereon. It now appears uncontradicted, from the evidence, that instead of having purchased this cause of action, it was assigned to him under a bona fide assignment for an antecedent indebtedness owing to him for services which he had performed for the corporation.

"The COURT. Both sides having moved for a direction [239] of a verdict, I find as a fact that the plaintiff purchased this cause of action with intent to sue thereon.

"I find, as a fact, also, that the so-called assignment, Plaintiff's Exhibit No. 1, was executed by the Lake Shore Company, through its officers, pursuant to action at a special meeting of the Board of Directors."

A verdict for the defendants was directed and judgment entered thereon. The Circuit Court of Appeals declared itself concluded by the trial court's finding "that the plaintiff purchased this cause of action with intent to sue thereon," " and held: "We must dispose of this case upon the theory that the plaintiff did not in fact take this assignment to extinguish a precedent debt, but that he purchased it for the purpose of suing upon it; that he, an attorney at law, purchased from his client for $5,000 a cause of action which he values at $750,000. The question we must answer, therefore, is whether the law sanctions such a transaction between parties standing in the confidential relation of attorney and client. We are satisfied that the common law does not sanction it."

Among other things counsel for plaintiff in error now insist that "if there were any questions of fact to be decided or divergent inferences of fact to be made the District Court erred in not submitting them to the jury." The point is well taken.

Statements by plaintiff's counsel made it sufficiently plain that while he sought an instructed verdict he also requested to go to the jury if the court held a contrary view concerning the evidence. In the circumstances disclosed we think the request was adequate and timely under former opinions of this court. Empire State Cattle Co. v. Atchinson, Topeka & Santa Fe Ry. Co. (210 U. S. 1, 8); Sena v. Americars Turquoise Co. (220 U. S. 497, 501); Schmidt v. Bank of Commerce (234 U. S. 64, 66); Williams

Syllabus.

v.

V. Vreeland (250 U. S. 295, 298). It should have been granted. Clearly some substantial evidence strongly [240] tended to show that the assignment was taken in extinguishment of an existing indebtedness and not for mere speculation upon the outcome of intended litigation.

The judgment below must be reversed and the cause remanded to the District Court for further proceedings in conformity with this opinion.

UNITED STATES v. LEHIGH VALLEY RAILROAD COMPANY ET AL.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

No. 1. Argued October 12, 13, 1916; restored to docket for reargument May 21, 1917; reargued November 7, 1917; restored to docket for reargument June 10, 1918; submitted October 7, 1919; restored to docket for oral argument May 17, 1920; reargued October 5, 1920. Decided December 6, 1920.

[254 U. S., 255.]

Prior to the enactment of the Anti-Trust Law, the Lehigh Valley Railroad Company, in combination with the Lehigh Valley Coal Company, a subsidiary created and operated as a mere agency or instrumentality of the Railroad Company, deliberately entered upon the policy of purchasing and leasing the anthracite coal lands in Pennsylvania tributary to its extensive railroad system, and of buying up the stocks of corporations owning such lands, for the purpose of controlling the mining, transportation and sale of the coal to be obtained therefrom and of preventing and suppressing competition, especially in the transportation and sale of such coal in interstate commerce. This policy was continued after the enactment of the Anti-Trust Act, with the result that a practical monopoly was attained of the transportation and sale of the anthracite derived from the lands tributary to the railroad, the amount so transported coming to exceed one-fifth of the entire annual anthracite produc

a For prior opinions on different phases of this case see 183 Fed., 427; volume 3, page 866; 226 U. S., 324; volume 4, page 694; 227 U. S., 158; volume 4, page 730; 226 Fed., 229; volume 6, page 290.

L

Statement of the Case.

tion of the country. Considering this result, the methods employed in [256] achieving it, and the great volume of production and trade involved, as compared with the restricted area of the whole anthracite territory, held, that the combination effected a restraint of trade or commerce among the States and constituted an attempt to monopolize and an actual monopolization of a part of such trade or commerce in anthracite coal, within the meaning of the first and second sections of the Anti-Trust Act. P. 269.a For the purpose of divesting itself in appearance of interest in the coal transported, the Railroad Company, with the Coal Company, brought about the creation and organization of a Sales Company, whose stock was subscribed for by stockholders of the Railroad Company only, with the aid of a dividend declared by that company for the purpose, and whose management was largely made up of former agents and officials of the Railroad and Coal Companies; the Sales Company, thereupon, in pursuance of the plan, made in form, an agreement with the Coal Company, for a term of ten years but subject to termination by either party on six months' notice, by which the Coal Company agreed to sell and the Sales Company to buy all coal mined or produced by the Coal Company, at prices mostly fixed at a specified percentage of New York prices, and by which the Coal Company agreed to lease all of its facilities, structures and trestles to the Sales Company, and the Sales Company was inhibited from buying any coal except from the Coal Company and from selling any not so purchased. Held that the Sales Company was neither an independent buyer nor a free agent, and that the contract being a mere device to evade the commodities clause of the Interstate Commerce Act, and obnoxious also to the Anti-Trust Act, was void. United States v. Delaware, Lackawanna & Western R .R. Co. (238 U. S. 516). P. 264. 255 Fed. Rep. 399, reversed.

The case is stated in the opinion. A motion to modify the decree was made and denied at this term. Post, 617. The Solicitor General for the United States."

• Syllabus copyrighted, 1921, by The Banks Law Publishing Co. At the first and second hearings the case was argued by Mr. Solicitor General Davis and Mr. Assistant to the Attorney General Todd. Mr. Attorney General Gregory and Mr. Arthur W. Machen, Jr., Special Assistant to the Attorney General, were also on the brief. At the third hearing the case was submitted by Mr. Attorney General Palmer and Mr. Solicitor General King, on an additional brief.

12822°-24-VOL. 97

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