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We do not necessarily disagree with the Court that "resale price maintenance through the present, coercive type of "consignment" agreement is illegal under the antitrust laws, and that petitioner suffered actionable wrong or damage. Since the decision may be expected to affect consignment agreements in many businesses, including outstanding agreements that may have been entered into in reliance upon United States v.

General Electric, U.

We therefore agree with MR. In this case, the District Court granted a summary judgment in favor of the respondent, finding that the respondent had not violated the Sherman Act, and that, even if there had been a violation, the petitioner had not suffered any damages. The Court of Appeals affirmed upon the theory that, even assuming a Sherman Act violation,. I think the reasoning upon which the Court of Appeals proceeded is untenable.

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The gravamen of the petitioner's complaint was that he had been coerced into a lease conditioned upon acceptance of the respondent's allegedly unlawful system of selling. If, as the Court of Appeals assumed, there had been such a violation of the Sherman Act, it was inconsistent to assume that the petitioner could not have been subject to the coercion he alleged and could not have suffered damages. But the root error in this case, it seems to me, was the District Court's decision to terminate the controversy by way of a summary judgment.

I therefore agree with the Court that the judgment of the Court of Appeals should be set aside, and the case remanded to the District Court for a. Poller v. But I think that, upon remand, there should be a full trial of all the issues in this litigation, because I completely disagree with the Court that whenever a bona fide consignor, employing numerous agents, sets the price at which his property is to be sold, "the antitrust laws prevent calling the consignment' an agency," and transform the consignment into a sale.

In the present posture of this case, such a determination, overruling as it does a doctrine which has stood unquestioned for almost 40 years, is unwarranted, unnecessary and premature. In United States v.


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The Court today concedes that "the consignment in that case somewhat parallels the one in the instant case. It is, of course, true that what was sold in General Electric was not gasoline, but lamp bulbs which had been manufactured under a patent. But, until today, no one has ever considered this fact relevant to the holding in. In addition to the unambiguous statement in Chief Justice Taft's opinion for a unanimous Court that. Quite the contrary, the General Electric Court, assessing the validity of these agreements, addressed itself to but one question:. To answer that question, the Court examined the operative provisions of the consignment agreement to determine whether the agreement created a valid agency or whether, in fact, title effectively passed to the so-called consignee.


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  6. If the latter were the case, the price-fixing requirement would have made the agreement nothing more than a resale price maintenance scheme, unlawful under the antitrust laws, cf. Miles Medical Co.

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    John D. Similarly, if the agreement created a bona fide agency, the consignment would be valid under the antitrust laws, again regardless of whether or not the article consigned were patented. Possession of patent rights on the article allegedly consigned has no legal significance to an inquiry directed to ascertaining whether the burdens, risks, and rights of ownership actually remain with the principal or have passed to his agent. Nor is the power of a consignor to fix the prices at which his consignee sells augmented in any respect by the possession of a patent on the goods so consigned.

    It is not by virtue of a patent monopoly that a bona fide consignor may control the price at which his consignee sells; his control over price flows from the simple fact that the owner of goods, so long as he remains the owner, has the unquestioned right to determine the price at which he will sell them.

    It is clear, therefore, that the Court today overrules General Electric. It does so even though the validity of that decision was not challenged in the briefs or in oral argument in this case. I should have thought that a decision of such impact and magnitude could properly be reached only after careful consideration of all relevant considerations, and preferably by a full Court.

    We cannot be blind to the fact that commercial arrangements throughout our economy are shaped in reliance upon this Court's decisions elaborating the reach of the antitrust. Everyone knows that consignment selling is a widely used method of distribution all over the country. By our decision today outlawing consignment selling if it includes a price limitation, we inject severe uncertainty into commercial relationships established in reliance upon a decision of this Court explicitly validating this method of distribution.

    We create, as well, the distinct possibility that an untold number of sellers of goods will be subjected to liability in treble damage suits because they thought they could rely on the validity of this Court's decisions. If the record now before us actually required reexamination of the General Electric case, I think that, in view of the serious considerations which I have mentioned, we should set this case for reargument and invite the Justice Department to express its views.

    The record upon which the District Court entered its summary judgment is wholly inadequate to support a realistic assessment of the actual nature and effect of the so-called "lease and consignment" agreement here involved. As the Court of Appeals pointed out,. No written pretrial stipulation of facts was entered into, nor was any formal pretrial order made. The result of all this was to create a most unsatisfactory record.

    As the record now stands, it is almost impossible to determine what agreements, if any, were reached at pretrial. After a trial on the merits it may be determined that the scheme here involved, although on its face a bona fide lease and consignment agreement, was, in actual operation and effect, a system of resale price maintenance. In either event, the question of the petitioner's damages would then become an issue to be determined. Only if all these issues, and perhaps others, were resolved in favor of the respondent would there be presented the question of the continuing validity of the General Electric doctrine.

    Consequently, reexamination of that case should certainly await another day.


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    7. I would vacate the judgment of the Court of Appeals and remand this case to the District Court for a plenary trial of all the issues. Without commenting on their significance, the Court does purport to discover in the operative provisions of the two agreements factual differences regarding the tax and insurance burdens assumed by the consignors.

      On closer examination, however, even these purported differences disappear. From the records in the cases, it is clear that both companies assumed the same tax burden -- payment of property taxes on the consigned goods. And since both companies bore virtually the same insurable risks of loss or damage to the goods consigned, the fact that General Electric apparently "carried whatever insurance is carried' on the stock held by consignees, while Union Oil apparently is not obligated to carry any insurance" is no distinction at all.

      The Court implies that the terms of this agreement providing that the consignee must carry personal liability and property damage insurance; that the consignee is responsible for losses of consigned gasoline incurred in the ordinary course of events; and that the consignee must pay his own costs of operation, are inconsistent with a valid consignment agreement.

      But such provisions are common to consignment agreements. They merely illustrate the well recognized fact that these retail gasoline dealers are both independent businessmen and agents. A consignee is commonly defined as one who, "in the pursuit of an independent calling," is engaged by another as his agent to sell property. See, e.

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      Consequently, it is not at all surprising for a consignment agreement to provide both that a consignee bear the expenses of conducting his own business and that he be responsible for loss or damage to the goods occurring in the ordinary course of business. The Court in General Electric explicitly found such provisions unobjectionable, U. Nor is the requirement that Simpson carry property damage and personal liability insurance of significance. Such a provision serves the reasonable purpose of protecting the consignor from responsibility which might be imputed by virtue of the agency relationship for liabilities incurred by Simpson arising out of or in connection with Simpson's business.

      The only remaining point which the Court makes is that the consignee's commission declines as retail prices drop. But it is in the very nature of commissions that they be geared to prices, and it is thus typical of consignment agreements that the consignee bears some of the risk of price declines.