scope of such commerce we must turn to the definition in the Clayton Act itself. * * *'
Section 2(a) of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C.A. § 13(a), first of all makes it unlawful for any person 'to discriminate in price between different purchasers of commodities of like grade and quality' where the result is to lessen competition or to tend to create a monopoly.
Speaking with reference to sub-paragraph (a) of the amending Act, the majority opinion in the Bruce's case, supra, said: Moreover, no single sale can violate the Robinson-Patman Act. At least two transactions must take place in order to constitute a discrimination.' But in Southgate Brokerage Co. v. Federal Trade Commission, 4 Cir., 150 F.2d 607, 609, the court said: '* * * price discrimination, which is covered by section 2(a) of the Act, 15 U.S.C.A. § 13(a), is not necessary to a violation of section 2(c), quoted above, which specifically forbids the payment of brokerage by the seller to the buyer or the buyer's agent.' Later in the same opinion (Southgate) the court quoted from its earlier opinion in Oliver Bros. v. Federal Trade Commission, 4 Cir., 102 F.2d 763, 767, in reference to the Robinson-Patman Act as follows: '* * * three specific matters were forbidden as unfair trade practices by sub-sections (c), (d) and (e), viz.: the granting of commission or brokerage, or any allowance in lieu thereof, to the other party to the transaction or his agent, the making of discriminatory payments by seller to buyer for services rendered by the latter and discrimination by the seller in the rendering of services to the buyer. It is perfectly clear that all three of these practices were forbidden because of their tendency to lessen competition and create monopoly, without regard to their effect in a particular case; and there is no reason to read into the sections forbidding them the limitations contained in section 2(a) having relation to price discrimination, * * * .' (Emphasis supplied.)
Plaintiff is equally in error in his second contention that the specific exceptions contained in the Act remove this contract of sale from its prohibitions. Basing his claim on the phrase in Section 2(c) 'except for services rendered in connection with the sale or purchase of goods, wares, or merchandise,' he argues, 'Under the express provision of Section 13(c), a buyer who renders services to the seller could procure commissions without conflicting with the provisions of this amendment.'
The 'services' rendered by plaintiff which he claims justify the two per cent. commission are laboratory analyses, the procuring of letters of credit and export licenses. The alleged contract clearly indicates that the seller was to furnish chemical analyses by the Pittsburgh Testing Laboratory and the buyer was to pay for a further analyses by United States Naval Metallurgical Research Laboratories, subsequent to the seller's own Pittsburgh analyses. Buyer was also obligated to establish his credit for the payment of the purchase price and to secure import and export licenses. Clearly all of the services relate solely to the buyer, the additional chemical analyses as a check on that furnished by seller certainly as a security measure for buyer, the ordinary normal steps taken by any individual to establish a line of credit with a loaning agency, and finally, the expense incurred by a domestic purchaser to enable him to make a resale of the goods abroad.
Here again the comment of the court in Southgate Brokerage Co. v. Federal Trade Commission, 4 Cir., 150 F.2d 607, 610, is particularly apropos,- 'We are not impressed with the argument that the company renders services to those from whom it purchases, within the meaning of the exception to subsection (c) quoted above. The services which the company proposes to show by the evidence that was excluded are services rendered to itself, as purchaser, owner and subsequent seller of the goods purchased, and not to those from whom it has purchased them. It is immaterial that those persons are benefited by the fact that the company purchases from them the goods which it subsequently resells. The crucial fact is that all of the services upon which it relies are services rendered in connection with its own purchase, ownership or resale of the goods; and these services it renders, not to those from whom the goods are purchased, but to itself. * * *'
That, in my judgment, is the precise situation here.
Defendant's motion to dismiss the complaint is granted.