(concurring and dissenting):
I would affirm.
*8161 think that the trial court’s findings of fact are sufficient and are supported by the evidence. The trial court here simply did not believe the plaintiffs’ witnesses. The trial judge considered the plaintiffs’ interests and motives in the case; the lack of corroborating evidence; the plaintiffs’ self-contradictions; the times at which the claims here made were first made.1 The court concluded:
Because of the paucity and doubtful credibility of the evidence on this question, plaintiffs have not satisfied their burden of proof on the first element of the fact of damage . . . . Knutson v. Daily Review, Inc., supra note 1, as 1381.
Absent believable witnesses, the plaintiffs who did have the burden failed unless their burden of proof was satisfied by the operation of some rule of law.
Perhaps that rule of law is stated by the majority in these words:
Rather than imposing the nearly impossible burden of proving what each dealer would have done if he had been free to make his own pricing decision, we assume2 that, absent evidence to the contrary, a dealer would have raised his prices had it been profitable to do so; that is, dealers are profit maximizers. This assumption merely amounts to a recognition that a “restraint” in fact restrains . . . (Footnote 19 of the majority opinion is deleted, and footnote 2 of this dissent is added.)
I am not aware of any rule of law which permits appellate courts to make assumptions of fact. An appellate court may create presumptions, even the mandatory kind which bind the trier of fact in the absence to the contrary. Although the opinion does not say so, that seems to be what the majority has done here. If so, then I disagree. I think it could be said that it is the universal intention of dealers to make a profit but that there is an intent to profit does not warrant the conclusion that all dealers are in fact “profit maximizers,” i.e., that they will do all things necessary to make a maximum profit. Here the effect of the presumption is that the dealers, if free, would have considered raising prices as a means of increasing profits, would have taken the trouble to do so, would have risked the effect of a raise in prices in a competitive market, and the possibility that the publishers might have retaliated by raising their prices to the dealers.
The fact is that some dealers do not do all things necessary to maximize profits. That is why some dealers profit much less than others, and some go broke. Between the intent to profit and the production of a maximum profit lie the factors of energy, imagination, intelligence, and the willingness to take a risk. If the presumption created here goes as far as it must go to support the conclusion-, then, in my opinion, it is artificial. I think the testimony in this case discloses the artificiality of it.3
To sum it up: I think the trial court did not believe plaintiffs’ witnesses. I think that, in the absence of credible evidence, there was no rule of law compelling the trial court to find that the loss of profits had been proved.
. Knutson v. Daily Review, Inc., 383 F.Supp. 1346 at 1379-81 (N.D. Cal. 1974).
. The use of the word “assume” is new in the nomenclature of the law relating to the onus probandi.
. See Knutson v. Daily Review, Inc., supra note 1, at 1379-81.