buy from Millman because Millman was a direct competitor; that plaintiff entered into agreements with Quality to purchase the belts at a specified price (higher than the prices charged to Millman), which order was subsequently increased twice at the same sales price; that plaintiff was informed by defendants that Millman complained about Quality's sales to plaintiff and plaintiff's intention to resell at prices lower than Millman's; that representatives of defendants attempted to coerce and induce plaintiff to increase its resale price to equal Millman's; that representatives of Quality stated that they were afraid of losing the Hickok belt as a warehouse item if they sold the belt to plaintiff, because of complaints by Millman and the other defendants; that subsequently a representative of American advised that plaintiff could not purchase the Hickok belt from any source because of complaints and pressure by Millman; and that defendants have jointly conspired to boycott plaintiff since that time.
In a second affidavit, Flaherty states that on October 6, 1961, plaintiff received 125 Hickok belts from Quality on account of orders executed on October 3, but that plaintiff has never received the balance due on those orders. There is, in addition, a third affidavit submitted by Flaherty in response to those filed on behalf of Hickok and American. His version of the events in and after October 1961 is as follows:
On or about October 9, 1961, Flaherty telephoned Bercy to inquire whether Bercy could do anything to expedite a shipment of belts from American to Quality, which belts plaintiff had on order from Quality. Flaherty explained that plaintiff was exchanging these belts for others previously sold to its customers, and also told Bercy the price at which plaintiff was selling Hickok belts to its customers. The next day, Harzfeld telephoned Flaherty, and told him about complaints from Millman that plaintiff was selling Hickok belts at a price lower than Millman's. Harzfeld stated that Quality would not fill the orders for Hickok belts unless plaintiff agreed to sell at a specified higher price. Flaherty agreed to sell at the higher price, but only because he needed the belts desperately to fulfill plaintiff's commitments with its customers.
A day later, October 11, Bean called to say that Quality was ready to fill the order and suggested that plaintiff could save time if it would itself pick up the belts. On October 13, as Flaherty was about to leave to pick up the belts from Quality, Bean called and said that he had received instructions from American not to sell the belts to plaintiff, and that he was afraid to ship the belts to plaintiff for fear American would boycott his company. Bean told Flaherty that he would receive a telephone call from Bercy in a few minutes. About twenty minutes later Bercy called Flaherty, and stated that there was nothing he, Bercy, could do about seeing that plaintiff could buy the belts from Quality; that Millman was angry because plaintiff was selling the belts at a lower price; and that American's distributors were free to sell to anyone, but that he would not instruct Quality that it was free to sell to plaintiff. Flaherty told Bercy that plaintiff would take legal action if plaintiff's previous orders were not released to it by October 16.
The next week, Harzfeld visited plaintiff, and told Flaherty that plaintiff was paying $ 4.38 per belt instead of $ 4.95, and that if plaintiff would agree to resell the belts at Millman's price, plaintiff's problems would be solved. Flaherty refused, and stated that it was against the law to agree to fix a selling price. Harzfeld indicated he would have to get permission from American or Bercy in order to ship the order that was outstanding. Plaintiff thereafter was compelled to purchase Hickok belts from another source at a delivery price higher than Quality's price. It was not October 19, 1961, but months later, that Harzfeld told Flaherty that Quality was ready and willing to sell belts to plaintiff. American had refused to sell Hickok belts to plaintiff at wholesale distributor prices because of pressures from Millman, which claimed that plaintiff was not a true wholesale distributor.
It is quite evident that the affidavits filed by the parties contain conflicting versions of material facts as to who had what conversations with whom during the period in question. Defendants deny the existence of a conspiracy or of injuries to plaintiff. Specific factual issues exist as to Bercy's authority to speak for American, the role of Millman, and the date Harzfeld told Flaherty that Quality would sell the belts to plaintiff without restrictions. These are matters which can only be resolved at a trial, and not on a motion for summary judgment. Affidavits filed in support of a summary judgment 'may be considered for the purpose of ascertaining whether an issue of fact is presented, but they cannot be used as a basis for deciding the fact issue.' Frederick Hart & Co. v. Recordgraph Corporation, 169 F.2d 580, 581 (3 Cir. 1948). Surely, then, this is not a proper case for the granting of a summary judgment in favor of Millman and American.
The situation with regard to defendant Hickok is somewhat different. Plaintiff's affidavits are silent as to Hickok. Instead, there has been submitted to the Court a certified copy of the registration statement of American, which was filed with the Securities and Exchange Commission on September 28, 1961. The purpose of this document is to indicate the 'close inter-working relationship' of Hickok and American, and to demonstrate that in the marketing, sale and distribution of Hickok belts, American is the agent of Hickok and that Hickok is liable for American's acts allegedly done within the scope of its authority in violation of the antitrust laws. See Las Vegas Merchant Plumbers Ass'n v. United States, 210 F.2d 732, 751 (9 Cir. 1954); United States v. Van Riper, 154 F.2d 492 (3 Cir. 1946). Hickok has denied any participation in the transactions alleged or that in fact Hickok and American had any communications whatsoever concerning these matters prior to February 7, 1962, when Hickok first learned from plaintiff about its claim. But the registration statement does indicate that American was authorized by Hickok to conduct the distribution of Hickok belts on behalf of Hickok. Whether an agency relationship between Hickok and American can be ultimately established is another question, but, at this state of the proceedings, the Court cannot say that such a relationship did not exist.
For the reasons stated, defendants' motions to dismiss the complaint or for summary judgment will be denied. Submit order.