dissenting.
I cannot find in the agreement that is the basis of this suit anything to indicate an attempt in anywise to control either the demand for, or the price of the fish that was the subject of the agreement. The situation presented appears to be this: The Ricou Pish Company *580and the Miami Fish Company were engaged in catching from their own boats, and in buying from other boats, mullet, mackerel, blue fish, pompano, grouper and snapper and other bottom fish. The Ricou Fish Company operated plants at Jenson, Key West and Miami; the Miami Company operated at Miami. The agreement with regard to handling the fish was that the Miami- Fish C'o. was “to sell all mullet caught by either of the firms that is delivered or shipped from Miami,” and the Ricou Fish company was to “have full and entire charge of all mackerel, blue fish, pompano, or in fact any kind' of fish shipped from Key West.” The bulk of the king mackerel was to be handled from Miami. The profits made by the Miami Fish Company or the Ricou Fish Compány from the sale, of mullet, mackerel, blue fish, pompano and king mackerel, after deducting set expenses, were to be divided equally between the two companies.
The original agreement was a verbal one, under which the parties operated for three months, but on October 30th the contract was reduced to writing in the form of a letter written by the Miami Fish Company reciting the verbal agreement, and an acceptance by the Ricou Co. of all the terms, conditions, statements and agreement's set forth in the letter. The agreement recites that the price of mullet in August was 2c per pound, the price in September was 2%c per pound, and during October 3%c per pound. These relate to past transactions, and cannot be construed to be price fixing agreements. The price on mullet caught in October and November “will be 3%c per pound, with the exception of gillnet mullet caught at Cape Sable. They are t'o be the price paid at Cape Sable.”
With regard to bottom fish it was stipulated “if, however, from now on, there should be any quantity of bot*581tom flsli caught, the price can be adjusted in the following manner: the price we pay to the Ashmen plus lc per pound for expense.”
With regard to other varieties of Ash, the contract provides:
“The season is now beginning for blue Ash, Spanish mackerel and pompano, and the price on the following Ash will be based on what we .have to pay the Ashmen plus 2c per pound for expense; for instance, if we have to pay 6c per pound at Bahahunda for mackerel, whichever company does the work will be allowed 2c per pound for the expense of running and packing these' Ash, furnishing ice, gas, labor, run boats and any other expense connected with it. This will apply to mackerel, blue Ash and pompano caught with purse seines and delivered either at Miami or Key West, and we will'base the purchase price of purse seine mackerel on price we have to pay at Bahahunda.
“In basing a price on Spanish mackerel, blue Ash and pompano and other Ash, we do so at the price paid the Asherman who owns his own gear. Any boats and nets that we advance to Ashermen of our own we are at liberty to make any private deal with the captain that' we see At, and the Ash will be turned in to either company at the same price that we would pay an independent Asherman.”
Both companies had, or expected to have some boats and nets of their own engaged in Ashing, and it was stipulated that the price paid for Ash caught from boats operated by either of the companies was to be controlled by the price paid in the open market to the independent Asherman. It appears that each of these companies owned or controlled boats that were better adapted to *582the needs of the other than to itself, and it was stipulated that the Miami Company should loan the' Ricou Company free of charge its auxiliary schooner Columbia and gasoline boat' Bloxam, and the Ricou Company was to loan the Miami Company free of charge the auxiliary schooner Hope.
The main purpose of this agreement was to have all the fish of one variety handled by one of the companies, and the other varieties by the other company.
Neither the bill nor the contract discloses the reason for handling the fish in this manner, but it might well have been that each company had customers and markets for the respective varieties it was to handle and by this system planned to reduce the expenses incident to advertising and finding new customers and markets, and of maintaining and operating the extra plant at Key West.
The assumption that the Ricou Fish Co. and the Miami Fish Co. were the only persons, corporations or firms engaged in the fish business at Key West and Miami, and that therefore the combination of these two was in restraint of competition or in restraint of trade, or created a partial 'monopoly' by eliminating all competition in the purchase of -fish from independent fishermen, does not find support in thé record, as I read it.
The mullet business had been carried on for nearly three months under the verbal agreement, and the reference in the written contract to the price of mullet was the actual price'paid during the months of August, September and October. ’ Each of these' companies was engaged in the business'of catching fish-from'its own boats' and in addition to this'they’bought-fish in the open market and merely agreed between themselves' 'that in adjusting» *583their accounts each would be allowed to charge the other the price paid the fishermen, plus a certain amount to be allowed for the expense of running' and packing this fish, furnishing ice, gas and labor, running boats and any other expense connected with it.
Nowhere in the contract, so far as I can see, is there any attempt to control the price that was to be paid to the independent fishermen; or to prevent or lessen competition in the commodity in which the two companies dealt to the injury of the producer and consumer. On the contrary, cutting down overhead expenses; eliminating the expense of opening two plants at Key West where but one was needed; adopting a more efficient system of marketing by letting each firm handle the varieties of fish it was best capable or best prepared to market advantageously, tended to reduce the cost to the consumer, and benefit, rather than injure, him.
Holding these views, I am forced to dissent.
Whitfield, J., concurs in this dissent.