Bluefields Company hidden by an assignment to the Weinbergers, and therefore violative of the law of Louisiana, was a finding upon an issue which did not involve the Bluefields Company, as shown not only by the pleadings but by the obvious fact that if the finding had been the reverse, the Bluefields Company would not thereby have been concluded from maintaining this action against the Fruit Company for a violation of the Sherman law, had it thereafter chosen to bring it. It seems very clear that in the Steele Case there was raised, contested and adjudged no issue between the Bluefields Company and the Fruit Company. Therefore the two companies, adversary parties in this case, were not adversary parties in that case.

[5, 6] In order to invoke the doctrine of res judicata there must also be Identity of the matter in controversy. This does not mean identity of form of action (Hopkins v. Lee, 6 Wheat, 109, 5 L. Ed. 518; Foster v. The Richard Busteed, supra), or of cause of action (Southern Pacific R. R. Co. v. United States, 168 U. S. 1, 48, 18 Sup. Ct. 18, 42 L. Ed. 355). It means identity of those matters upon which both actions may be maintained (Lawrence v. Vernon, 3 Sumn. 22, Fed. Cas. No. 8,146) and with reference to which the adjudications in both extend. From this has arisen the rule of the Supreme Court that: "A right, question or fact, distinctly put in issue and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and even if the second suit is for a different cause of action, the right, question or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified." Mitchell v. National Bank, 180 U. S. 471, 21 Sup. Ct. 418, 45 L. Ed. 627; Hopkins v. Lee, 6 Wheat. 109, 5 L. Ed. 218.

We must therefore inquire what "questions" and "facts" were "distinctly put in issue and directly determined *.* * as a ground of recovery" in the former action, and what are the like matters in controversy in this one. We may do this by inquiring, what were the things sued for in the two actions? Bull v. Hopkins, 7 Johns. (N. Y.) 22: 5 M. & W. 109.

The things sued for in the Steele Case, as we have found it necessary to say several times, were (1) an injunction against the Fruit Company from voting its stock in the Bluefields Company in violation of the law of Louisiana, and (2) the appointment of a receiver for the Bluefields Company (with authority to bring this suit). The thing sued for in this case is damages for injuries arising out of a violation of a law of the United States. Both actions, we assume, may be maintained by proof of some of the same facts. Based upon these facts, the decree in the Steele Case was two-fold: (1) It was a judgment that the Fruit Company had violated a law of the state of Louisiana. It was not a judgment that the Fruit Company had violated a law of the United States. (2) It was a judgment that, in finding that the Fruit Company had violated a law of Louisiana, enough was shown that it had also violated a law of the United States, with consequent injury to the Bluefields Company, to justify the appointment of a receiver for that company and his authorization to institute suit for damages against the Fruit Company. The judgment, in so far as it affected

the Bluefields Company, was that, upon the facts shown, the issue of the Fruit Company's guilt in violating a law of the United States should be tried in another action. The court did not prejudge that issue by predetermining the facts. It did no more than determine that the facts before it prima facie showed ground for the action and were sufficient to appeal to its discretion and induce it to appoint a receiver with authority to bring the action and try out the issue.

If, instead of adjudging the master's finding sufficient to justify the appointment of a receiver for the Bluefields Company with authority to bring this action against the Fruit Company for a violation of the Sherman Act, the court had adjudged the findings insufficient and had thereupon dismissed Steele's bill, surely that adjudication would not have been a judgment that the Fruit Company had not violated the Sherman Act, nor would it have made the findings upon which it was based res judicata pleadable by the Fruit Company in an action by the Bluefields Company for a violation of the act, nor would it have concluded the Bluefields Company from bringing such an action. This is upon the principle that no one can take advantage of a judgment or decree if he would not have been prejudiced by it if it had been otherwise. Chandler's Appeal, 100 Pa. 262, 265; Chantangco v. Abaroa, 218 U. S. 476, 481, 31 Sup. Ct. 34, 54 L. Ed. 1116; Bigelow v. Old Dominion Copper Co., 225 U. S. 111, 127, 32 Sup. Ct. 641, 56 L. Ed. 1009, Ann. Cas. 1913E, 875; Penfield v. Potts, 126 Fed. 476, 479, 61 C. C. A. 371.

As between the Bluefields Company and the Fruit Company there is not even a remote resemblance between the things sought and recoverable in the two actions, nor is there as to them a resemblance between the controversies in the two actions. We are therefore impressed that the difference in the adversary parties, in the matters in controversy and in the relief sought and matters decided in the two cases makes the evidence in the first wholly inadmissible as res judicata of the issues in the second.

[7, 8] While we thus decide that the trial court erred in ruling certain findings of the master res judicata of the issues in this case, we are of opinion that the plaintiff cannot complain of that error. The findings admitted were not prejudicial to it. On the contrary, they must have been immensely beneficial to it, for the thirty or more findings admitted as res judicata served the plaintiff with their binding. and concluding effect as though of matters already adjudged, and correspondingly concluded and limited the defense. Nor do we feel that the plaintiff was prejudiced by the rulings of the court excluding the remaining findings, for it is very clear that its counsel, anticipating or fearing such rulings, did not rely upon them but proceeded to prove their case by the testimony of witnesses.

We therefore dismiss as without merit all assignments of error relating to questions of res judicata.

There are two groups of assignments charging error to the court in certain rulings upon evidence and instructions upon the law. These rulings and instructions, appearing repeatedly in one form or another throughout the trial, disclose what the court conceived to be the under

lying and fundamental principles of the case and show very clearly the theory upon which the case was tried and decided. If the court was wrong in its conception of these principles, then obviously it committed many substantial errors. If, on the contrary, it was right, then its errors, if any, are likely to be few and without prejudice. We may therefore dispose of these assignments by considering the principles they broadly raise as affecting the whole trial.

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[9] It should be kept in mind that this is an action under section 7 of the Sherman Act to recover damages for injuries sustained in consequence of violations of section 1 of the act (which makes illegal "every contract, combination in restraint of trade or com*") and of section 2 (which provides punishment for "every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several states, or with foreign countries *"). The plaintiff charged the defendant with such combination in restraint of trade and such monopolization of trade, and in support of its charge produced a great mass of testimony. The testimony disclosed a novel feature, which distinguished this case from the usual case where a combination or monopoly injures an independent competitor. In sustaining its averment that the defendant was an unlawful combination in restraint of trade and was an unlawful monopoly, the plaintiff showed that it was itself a party to that combination and a part of that monopoly. It soon appeared that the evidence was quite sufficient for the jury to find that the plaintiff itself participated in, acquiesced in and ratified the acts of which it here complains and for which it seeks damages by this action.

In this aspect of the case the learned trial judge discovered very early in the trial that much of the law announced by courts in actions brought under the Sherman Act by independent competitors for injuries inflicted by unlawful combinations was not applicable to this case. Instead of having, as in such cases, two clear issues, one as to whether the defendant was an unlawful combination and the other as to the fact of injury done and damages sustained, there arose in this case (1) the controlling question whether the plaintiff had not itself violated the Sherman Act, together with the defendant, in forming an unlawful combination which did the acts complained of, this question being dependent upon other questions (2) as to the manner in which that combination was formed; (3) its nature and the extent of control over the plaintiff intended thereby to be conferred upon the defendant; (4) the manner of its exercise, whether within or without the scope of the combination, and (5) not only whether injury was inflicted, but (6) if inflicted, whether it was the natural and probable consequence of the combination as formed, or extended beyond it, and was committed with intent to injure and destroy the plaintiff.

Issues of acquiescence and intent arose at once from the very nature of the acquisition of control and its exercise, for if the things complained of were things agreed to or acquiesced in, then manifestly if they were unlawful, the plaintiff was in pari delicto and was without right to recover. If, on the contrary, they were things not agreed to

or acquiesced in, then with equal certainty the defendant could not escape liability for wrongs done and injury inflicted without the connivance or the concurrence of the plaintiff.

The court therefore consistently ruled and finally charged that in all these acts there entered the elements of the plaintiff's acquiescence and of the defendant's intent to injure. Of this the plaintiff now earnestly complains, contending that the acts which occasioned the injury were torts and that in torts the elements of intent to inflict injury and of acquiescence in the wrongs done do not enter. Ross v. Pines, Wythe (Va.) 69; Nagy v. Press Co., 16 Manitoba, 616; Stephenson v. Brown, 147 Pa. 300, 23 Atl. 443; McCloskey v. Powell, 123 Pa. 62, 16 Atl. 420, 10 Am. St. Rep. 512.

Taken in the abstract and without reference to the facts of the case, that is the law. When in this class of torts unlawful combinations or unlawful agreements necessarily operate to unduly restrain trade and inflict injury, questions of willful purpose or conscious design to violate the law and inflict injury have no place. Addyston Pipe Case, 175 U. S. 211, 214, 234, 20 Sup. Ct. 96, 44 L. Ed. 136; Northern Securities Co. v. United States, 193 U. S. 197, 331, 24 Sup. Ct. 436, 48 L. Ed. 679. The courts have held that so far as intent is involved (that is, intent either to violate the law or thereby to inflict injury) persons so combining or contracting are presumed to have intended the necessary, natural and probable consequences of their acts and agreements, and if their effect is to unduly restrain interstate trade with consequent injury, then the combination is illegal and the participants are chargeable with the consequences and are liable for the damages resulting. Continental Wall Paper Co. v. Voight, 212 U. S. 227, 29 Sup. Ct. 280, 53 L. Ed. 486; Loewe v. Lawlor, 208 U. S. 274, 28 Sup. Ct. 301, 52 L. Ed. 488, 13 Ann. Cas. 815; O'Halloran v. American Sea Green Slate Co. (D. C.) 207 Fed. 187, 189. There in no question about this law when the damages inflicted by an unlawful combination fall upon one not involved in the combination and not participating in violating the law. But here there was evidence that the plaintiff, acting through all its stockholders, had combined with the defendant to restrain trade and commerce and to build up a monopoly between them. In prescribing the zone for banana cultivation and in limiting the purchase price and regulating the importation of bananas into the United States, the parties unquestionably effected thereby a combination which in some degree restrained trade and measurably created a monopoly. If that combination unlawfully restrained trade and created an unlawful monopoly, as averred by the plaintiff, then certainly when the plaintiff complains of injury done by the defendant, the question arises. ex necessitate rei whether the injury complained of was the natural and the probable consequence of the combination or was in consequence of conduct pursued beyond its scope with intent to inflict injury not within the agreement of the parties.

The plaintiff's claim was in effect that it did not reap all the profits which the combination should have yielded because of the manner in which the defendant exercised its control and conducted the plaintiff's business. The plaintiff's business was intended to be conducted by the

defendant along lines of restraint of trade and monoply, in the course of which injury might follow as a natural effect, or might be occasioned by intentional and malevolent acts of the defendant. In this state of the case, the origin and purpose of the injury became questions for the jury.

It is impracticable to rehearse even briefly the testimony of the case, but the theory upon which the court tried the case and submitted it to the jury runs through its most elaborate and carefully delivered charge and is disclosed by a few excerpts.1

1 As to the plaintiff's action the court said: "The plaintiff's case is based on an unlawful combination and unlawful contracts." This unlawful combination is the one made by stockholders of the plaintiff with the defendant, and the unlawful contracts are the two made between stockholders of the plaintiff and the defendant, and one made between the plaintiff and the defendant. Upon the subject of the defendant's unlawful acquisition of control and its intent to injure the plaintiff, the court said:

"In other words, to put it briefly, the plaintiff's claim is based on injury through the destruction of competition, which is alleged existed, and which ought to have existed, between it and the defendant, and the injuries are based or the damages for injuries are based on the losses which the plaintiff claims were caused by the destruction of that competition.

"All of these averments in the statement of claim set up unlawful acts, and the question then arises as to whether the plaintiff was a party to those unlawful acts. While the law prohibits unreasonable restraint of trade, it does not permit parties to take an unreasonable position with regard to acts in restraint of trade, and where two parties are equally guilty of a violation of the provisions of the Sherman Act, it does not permit one of the guilty parties to recover from the other. The policy of the law is that as between two wrongdoers, who are jointly responsible for the conditions of which one party complains, the law leaves them in the position in which it finds them, and the courts will not interfere to protect one wrongdoer against the other.

"I am outlining this at the outstart so that you may bear these principles in mind when you come to consider the evidence as to the circumstances under which the alleged unlawful combination was formed, the alleged unlawful contract was entered into, and the alleged unlawful use that was made of the control, which it is claimed the defendant exercised over the plaintiff. "If, under all the evidence, you find that the defendant did obtain a control of the plaintiff, and used that control in the restraint of interstate commerce, with the view of monopolization of the banana business in interstate trade and commerce, and did various unlawful acts which the plaintiff alleges it did, and did these things without the acquiescence or consent of the plaintiff, with the intent to injure the plaintiff, then it would be your duty to return a verdict in favor of the plaintiff for the amount of damages which it has suffered by reason of the injurious acts.

"If, however, you find that there were such unlawful acts, and there was such an unlawful combination, and the plaintiff through the unanimous consent of its stockholders, joined in forming the unlawful combination, joined in entering into the alleged unlawful contracts, and acquiesced in the use of alleged unlawful control, then the plaintiff cannot recover in this case, and it would be your duty to réturn a verdict for the defendant. And if you should find that there was an unlawful combination, an unlawful control, an unlawful use of the control, and you should fail to find that the plaintiff was injured thereby, even though the control was exercised, without consent, then your verdict should be for the defendant because the plaintiff cannot recover in this case unless it was injured.

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"If from all the evidence you find that at that time it was the purpose, not only of the United Fruit Company, but also the Bluefields Steamship Company, through its direction, and with the unanimous consent of its stockholders, to make that combination, to destroy competition, or the arrangement by which