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276
PAET XIII.
(38) But plaintiffs urge that the Creamery Package Manufacturing Company was of itself a combination offensive to the statute and that they were entitled to go to the jur}^ as to that company. But the contention was not made in the Circuit Court, nor was it made in the Circuit Court of Appeals. The case was tried and ruled upon, as we have seen, on the ground of the cooperation of the defendants in a scheme of monopoly and restraint of trade. There was no liability asserted in the Circuit Court or in the Circuit Court of Appeals against one of the defendants separately from the others. Concert and cooperation was asserted against all and a ruling was not invoked as to the separate liability of either. ^ * * It is manifest, therefore, that the separate liability of the Creamer}^ Package Manufacturing Company is an afterthought and urged in this court for the first time.
The Owatonna Co., one of the defendants, was a manufacturer of churns under patents owned by it and had under a contract constituted the Creamery Package Co., the other defendant, its sales agent, the latter company not making those articles. The agency contract was a perfectly legal one and preceded by some time the agreement entered into by the Creamery Package Co.^ referred to above, and which tlie court, as we have pointed out, held was illegal. Referring to the contract appointing the Creamery Co. the sales agent of the Owatonna Co., the court, per Mr. Justice McKenna, said :
; (32) It is true they granted rights to the
Creamery Package Manufacturing Com