Full opinion text
OPINION AND ORDER: DEFENDANT’S POST-TRIAL MOTIONS KNOX, District Judge. This complex and protracted piece of litigation has been pending since March 6, 1967, when plaintiffs, a Corporate Ford Dealer and its major stockholder, filed a complaint against defendant, Ford Motor Company, setting forth seven causes of action: (1) Breach of contract as to purchase of real estate and erection of a dealership facility in Monroeville, Allegheny County, Pennsylvania. (2) An action for specific performance to require conveyance of the property mentioned in the first cause of action. (3) An action for violation of the Robinson-Patman Act, 15 U.S.C. § 13(e). (4) An action for violation of the Automobile Dealers Act, 15 U.S.C. § 1221 et seq. (5) An action based upon alleged monopolistic practices and restraints of trade under Sections 1 and 2 of the Sherman Act (15 U.S.C. §§ 1 and 2). (6) An action also based upon Sherman Sections 1 and 2, resulting from a requirement that plaintiffs not deal in vehicles, parts and equipment of a competitor of defendant, viz: General Motors Corporation. (7) An action for an order to the Prothonotary of Allegheny County to index a lis pendens during the pendency of the second cause of action for specific performance. There ensued lengthy discovery proceedings and numerous motions and arguments with respect to these suits before two other judges of this court to whom the case was assigned before final assignment to the undersigned. There were also various proceedings in the United States District Court for the Eastern District of Michigan resulting from attempts by plaintiffs to take the depositions of Lee A. Iacocca, President of defendant, and other officials of the Ford Motor Company at its principal offices in Dearborn, Michigan, which proceedings as well as other discovery proceedings were vigorously resisted by the defendant. After more than three years of discovery, defendant filed a motion for partial summary judgment with respect to the second and seventh causes of action and this court, by opinion and order dated May 5, 1971, (Rea v. Ford Motor Co., 326 F.Supp. 627 (W.D.Pa.1971), granted this motion for partial summary judgment with respect to these causes of action holding there was no sufficient memorandum in writing to satisfy the Pennsylvania Statute of Frauds (33 Purdon’s Pa.Stat. § 1 et seq.) and also with respect to certain letters and other writings upon which plaintiff relied the authority of the person signing the same was not expressed in writing as also required by the Statute of Frauds. The Court of Appeals for the Third Circuit, by order dated September 15, 1972,-dismissed an appeal from this order since, in the light of other developments in the case, it appeared that the appeal was improvidently certified. The court pointed out that subsequent to the lodging of the appeal, trial of the remainder of the case had been held at which plaintiffs (appellants) had pursued an alternative remedy, viz: a claim for damages for breach of oral contract for the sale of real estate. Since post-trial motions were pending with respect to the jury’s verdict hereinafter referred to awarding damages for breach of said oral contract, the appeal was dismissed with leave to the appellants to file a fresh appeal covering the subject matter in question, after the effective date of a final judgment in the District Court upon the remaining claims. We adhere to our former decisión on these matters reported in 326 F.Supp. 627 and hold that regardless of the finding of the jury that there was an oral contract for conveyance of real estate for breach of which damages were awarded, there is still insufficient evidence in writing of the existence and terms of such contract to justify an order of specific performance; that to allow specific performance under the second and seventh causes of action would be prohibited by the Pennsylvania Statute of Frauds, supra; that there is insufficient evidence of a written memorandum with respect to said contract; and the authority of persons to sign certain documents and letters in behalf of Ford Motor Company was not expressed in writing as required by the statute. We will deal with the question as to whether there was sufficient evidence to go to the jury to justify their finding of an oral contract to convey real estate and their award of damages for breach thereof later in this opinion. Meanwhile, the remainder of the case was proceeding to trial. The following isues were left: (1) Breach of oral contract to convey real estate. (2) Violation of the Robinson-Patman Act. (3) Violation of the Automobile Dealers Act. (4) Violation of Section 1 of the Sherman Act. (5) Violation of Section 2 of the Sherman Act. After further skirmishing with motions with respect to the pretrial narrative statements and motions for summary judgment and a lengthy pretrial conference, the case was fixed for trial in February of 1972. The trial was delayed by an attempt on the part of the plaintiffs to require the trial judge to disqualify himself which the trial judge refused to do. See Rea v. Ford Motor Co., 337 F.Supp. 950 (W.D.Pa.1972). The ease proceeded to trial on April 17, 1972. The trial consumed five and one-half weeks, with over 5100 pages of transcript. At the conclusion of the evidence, the court directed a verdict as to Section 13(e) of the Robinson-Patman Act (15 U.S.C. § 13(e)), holding (N.T. 5,008) that alleged discrimination as shown by plaintiff’s evidence in favor of other dealers by offering them favorable real estate transactions and favorable terms of financing did not constitute a violation of the Robinson-Patman Act which is concerned solely with price discrimination in the sale of commodities. See Gaylord Shops, Inc. v. Pittsburgh Miracle Mile Town & Country Shopping Center, Inc., 219 F.Supp. 400 (W.D.Pa.1963); Texas Gulf Sulphur Co. v. J. R. Simplot Co., 418 F.2d 793 (9th Cir. 1969); I. M. Skinner v. United States Steel Corp., 233 F.2d 762 (5th Cir. 1956). The court likewise held that there was insufficient evidence of monopolization under Section 2 of the Sherman Act but permitted the case to go to the jury to determine if there was an attempt to monopolize under Section 2. The jury was instructed by the court to return a special verdict which they did after lengthy deliberations, the material portions of which are set forth in Appendix I to this opinion. The court thereupon entered judgments in accordance with the terms of the special verdict, trebling the damages found by the jury in answer to Question No. 9 in the amount of $1,750,000.00, pursuant to the provisions of 15 U.S.C. § 15, whereby they were increased to $5,-250,000 thus resulting in a total award against defendant of $5,629,683. The defendants have now filed post-trial motions as follows: (1) Motion for Judgment in Accordance with Motions for Directed Verdict with respect to all causes of action submitted to the jury (hereinafter referred to as Motion for Judgment NOV). (2) In the Alternative, a Motion for New Trial alleging 35 reasons therefor. (3) Motion to Amend the Judgment claiming that judgment had been entered in favor of the wrong persons. We have received voluminous briefs from the parties (approximately 350 pages from the defendant and approximately 125 from the plaintiff) and have heard extensive oral arguments with respect to the same and will dispose of these motions in the following opinion. In approaching this task, we bear in mind the elementary rule that a verdict winner is entitled to the benefit of all evidence in his favor regardless of who produced such evidence and all inferences dedueible therefrom: Bruce Lincoln-Mercury v. Universal CIT Credit Corp., 325 F.2d 2 (3d Cir. 1963); Globe Motors v. Studebaker-Packard Corp., 328 F.2d 645 (3d Cir. 1964); Walsh v. Miehle-Goss-Dexter, Inc. v. Stern, 378 F.2d 409 (3d Cir. 1966); United States v. Evers, 448 F.2d 863 (3d Cir. 1971); Neville Chemical Co. v. Union Carbide, 422 F.2d 1205 (3d Cir. 1970). We will deal with the motions with respect to each cause of action in the order in which they were presented. (I) Breach of Contract for Conveyance of Real Estate. Plaintiff’s first cause of action alleges a contract to convey real estate generally known as the Balison tract in Monroeville, Allegheny County, Pennsylvania and asks for damages for the breach of the same including loss of bargain. As previously discussed, partial summary judgment was entered for defendant with respect to the second and seventh causes of action seeking specific performance of this contract and lis pendens. We adhere to what was said with respect to these matters in the opinion reported in Rea v. Ford Motor Co., 326 F.Supp. 627 (D.C.1971). Inasmuch as our Court of Appeals has held that the order previously entered was interlocutory and not subject to review and to protect plaintiff’s rights we will again enter summary judgment in favor of defendant on the second and seventh causes of action. We now turn to questions now raised as to the first cause of action. (a) The existence of an oral contract. At the trial of this case, plaintiffs presented evidence as to the first cause of action and claimed damages for breach of an oral contract to convey real estate. This was proper under Pennsylvania law since the Statute of Frauds applies only to an action for specific performance and not to a suit for damages for breach of an oral contract respecting real estate. Polka v. May, 383 Pa. 80, 118 A.2d 154 (1955); see also Thompson v. Sheplar, 72 Pa. 160; McDowell v. Oyer, 21 Pa. 417. In such case, however, the vendee’s right to damages is restricted to monies laid out and expenses incurred on the faith of the oral contract to convey: he cannot secure damages for the loss of his bargain, i. e., the difference between the contract price and the actual market price of the real estate or any loss of profits from the transaction or loss of any appreciation in value of the real estate. Plaintiff Rea recognized this rule and submitted evidence as to his expenditures on the faith of the contract, viz: $1.00 in option money which he says he paid to bind the bargain during negotiations plus expenses incurred by him in connection with the construction of the dealership facility on the property. During the course of construction, it was necessary to install hoists for servicing vehicles, conduits for electric cables and certain partitions. These were not in the original plans and the Ford Motor Company which paid the other costs of construction of the facility refused to pay for them and hence plaintiff paid the contractor for these items totalling $29,683. Payment was actually made by plaintiff Rea’s controlled corporation, 22 Ford Inc., (as to which more hereafter) although it is clear, that the original contract as found by the jury was between the individual plaintiff Rea and defendant Ford. In our opinion at 326 F.Supp. 627 at 631, it was noted there had been a discussion between plaintiff Rea and the representatives of Ford Motor Company looking to Rea opening a Ford dealership at this new point for Ford sales in Monroeville. The discussions concerned a so-called direct-lease transaction whereby Rea or a corporation formed by him would acquire title to the land and then lease it under a long-term lease to Ford Motor Company whose payments of rents would be used to finance the transaction. Ford would then lease the facility back to the dealership. With Ford’s name on the underlying lease which would be assigned to the financier, this would make a very desirable transaction. The evidence indicates that at some time this transaction was changed because the seller, which was a corporation, wanted to sell stock and not assets, and Ford could not see any reason for paying financing charges to an outside party when it had ample resources to purchase this land and put up the buildings out of its own funds. The transaction was therefore modified so that Ford acquired the stock in the seller corporation and then dissolved this entity thus obtaining title to the real estate. At this time there were indications that Ford was willing to enter into some arrangement known as the “buyout plan” whereby it would sell the property to Rea over a term of years. Some of the elements of this plan were embodied in the so called option which Ford sent to Rea on December 29, 1966, and which Rea refused to sign claiming it was not in accordance with the original understanding between the parties and that it gave him only an illusion of an interest in the property since Ford could reacquire it at any time at cost if Rea ever ceased to be a Ford dealer. In our opinion at 326 F.Supp. 627 at 631, we indicated that all the documents showed was some evidence of negotiations looking eventually to working out an arrangement between Ford and plaintiff. When the case went to trial, we were not limited to written documents and communications but the entire nature of the understanding between Rea and Ford was introduced in evidence through the testimony of plaintiff Rea and his corroborating witnesses who were aware of the elements of the transaction. This evidence showed that in 1963 Rea, who was known as a highly successful Oldsmobile dealer in nearby Wilkinsburg, was approached as a dealer prospect by various representatives of Ford with a view to opening up a new Ford dealership in Monroeville. Discussions were had not only with representatives from the Pittsburgh District Office of Ford but also representatives from defendant’s general offices in Dearborn, Michigan. A transaction was worked out according to plaintiffs’ testimony whereby Rea was to enter into the so-called direct-lease deal for the Monroe-ville property. It appears that as part of the transaction in order to raise capital he at that time planned to give up his Oldsmobile franchise. It was stated to him that the transaction would be similar to that of the Rossi-Downtown Ford direct-lease in Detroit, the Chase-Morsey transaction for Paradise Ford in Scottsdale, Arizona, and other direct-lease dealer transactions which were mentioned in the testimony to show the manner in which the transaction was to be accomplished. The mortgage to the financier was to be amortized over a twenty-year period to cover the cost of land and improvements and the property then was to be sublet by Ford back to Rea’s dealership. The rental factor was to be at the rate of 7%■% of the cost of the land and facilities, plus amounts equal to taxes, insurance and maintenance. This would amortize the mortgage over a twenty-year period so that at the end of this time Rea would own the property free of encumbrances. Various communications in defendant’s files confirmed that such a transaction was the plan. The case was submitted to the jury to determine first whether there was any binding contract at all to which the jury answered “yes” and secondly whether the terms were those of the so-called direct-lease plan (Question 2(a) or the so-called buy-out plan (Question 2(b)). The jury answered that the contract consisted of the so-called direct-lease plan (Interrogatory 2a) and answered Interrogatory No. 3 that there had been a breach of contract by Ford and Interrogatory No. 4 awarded damages in the amount of $29,683 to plaintiff Rea. There was ample evidence to support the jury’s verdict with respect to the making of this contract notwithstanding defendant’s contention that the evidence was too vague and indefinite to justify any finding for plaintiff. It is true that the burden is upon the plaintiff to establish the terms of the contract on which he bases his claim: Kassab v. Ragnar-Benson, Inc., 254 F.Supp. 830 (W.D.Pa.1966). This was a non-jury case in which the judge held that the terms of an employment contract were too vague to be enforceable. The basic Pennsylvania case is Beachler v. Mellon-Stuart Co., 354 Pa. 341, 47 A.2d 147 (1946) which, like this case, was tried by a jury and the court held that there was insufficient evidence to support the jury’s verdict that there was a binding and enforceable contract. The court held that there was no meeting of the minds as to any terms and the terms were most inadequate and indefinite and could not in any sense constitute a contract. In the instant case, the jury was carefully instructed on this and as to the necessity for finding a meeting of the minds. See Tr. 5070 et seq. Beachler, supra, teaches us that in such a case to determine if there was sufficient evidence to go to the jury, we must look for the following: (1) Was there a meeting of the minds ? (2) When does the contract commence? (3) For what period is it to run? (4) What was the price to be paid? (5) What were the terms of payment? There is no question in a disputed issue as to whether a contract existed at all or where it is partly oral and partly written the case must go to the jury. Agger v. Frank Donatelli & Co., Inc., 171 Pa.Super. 631, 91 A.2d 303 (1952). Applying the tests in Beachler to this case, we find that there was sufficient oral and written testimony to enable the jury to arrive at the conclusions which it did. There was evidence as to a meeting of the minds on the terms between Rea and the representatives of Ford Motor Company. The contract was to commence when the dealership facility to be erected on the land had been completed. It was to run for a period of twenty years. The amount to be paid was to be the total cost of the land and buildings which could easily be ascertained when the structure was completed. The terms of payment were an annual payment of 7%% of cost plus taxes, insurance and maintenance. Other details of the transaction were as set forth in the arrangements made with Rossi-Downtown Ford and Chase-Morsey Dealership in Scottsdale. This is a typical case for application of the maxim id certum est quod certum reddi potest (that is certain which can be made certain). When all the terms of a transaction have been agreed upon and all that remains is putting it in the form of a final formal writing, this will not prevent the Pennsylvania courts from treating it as an enforceable agreement and not mere negotiations. Moudy v. W. Va. Pulp & Paper Co., 385 Pa. 39, 121 A.2d 881 (1956); Emerman v. Baldwin, 186 Pa.Super. 561, 142 A.2d 440 (1958). The foregoing discussion also disposes of defendant’s reason (aa) of its motion for new trial. (b) The Parole Evidence Rule. Defendant next claims that the parol evidence rule was violated by allowing testimony as to the existence of an oral contract and therefore the matter was improperly sent to the jury. The court at page 4881 refused to instruct on the parol evidence rule for the reason that there was nothing in the contracts with respect to purchase of the property. The two written instruments to which defendant is apparently referring as the basis for applying the parol evidence rule to this case are (1) the dealership agreement (plaintiff’s exhibit 118) and (2) the lease agreement covering the facility (plaintiff’s exhibit 65). Neither one of these agreements says anything about plaintiff’s right to purchase the property. The dealership agreement is the standard Ford Dealer’s agreement and has nothing whatsoever to do with the facility to be occupied by the dealer. The lease agreement is also a standard lease from Ford Motor Company to a dealer for certain facilities for a dealership and it likewise says nothing about the purchase of the premises by the dealer. As the court pointed out at page 4881, if the lease agreement, as many leases do, had an option to purchase clause in it, the plaintiff would be bound by it and we would not permit the introduction of any parol testimony to vary its terms, but it does not. While Pennsylvania is very strict in applying its parol evidence rule and has been since the landmark case of Gianni v. Russell & Co., 281 Pa. 320, 126 A. 791 (1924) nevertheless this rule only forbids oral testimony on a subject covered by the contract. As a matter of fact, Gianni says: “In cases of this kind, where the cause of action rests entirely on an alleged oral understanding concerning a subject which is dealt with in a written contract it is presumed that the writing was intended to set forth the entire agreement as to that particular subject.” Further cases dealing with the subject hold that the question is whether or not a matter is dealt with at all in the writing. Bardwell v. Willis Co., 375 Pa. 503, 100 A.2d 102 (1953); Grubb v. Rockey, 366 Pa. 592, 79 A.2d 255 (1951); Tara Ann Inc. v. Sun Ray Drug Co., 383 Pa. 521, 119 A.2d 91 (1956). For these reasons, the court refused to apply the parol evidence rule and let the question of an oral contract go to the jury. (c) Apparent Authority of Ford Representatives. Defendant next contends that the Ford representatives who negotiated the transaction acted without authority, and seeks to rely upon certain evidence by Mr. Iacocca and others, that these representatives could only recommend real estate transactions to the home office and had no authority to bind the company. The negotiations with respect to the so-called direct-lease transaction, which was found by the jury to be a binding contract, were conducted largely by Mr. McClanathan, Pittsburgh District Sales Manager, and Mr. Chase, Market Representation Coordinator of Ford, who was sent out from the home office in connection with the transaction. Plaintiff offered the depositions of these persons and in these depositions were various statements indicating they did have authority to enter into the arrangement with Mr. Rea. It is elementary, of course, that an agent’s judicial statements as to his authority are admissible to show the same, but not his extra-judicial hearsay statements. The evidence indicates that Mr. McClanathan, District Sales Manager, was authorized and empowered to prospect for new Ford dealers and had conducted negotiations with Mr. Rea and that Mr. Chase was authorized by the market representation department to deal with Rea concerning the acquisition of a suitable site for the new dealership to be set up in Monroeville. The Ford General Sales Bulletin No. 5512 (Exhibit Px 82) set up authority of the market representation manager to enter into negotiations concerning dealership sites and Mr. Chase, Market Representation Coordinator, was sent to Pittsburgh for this purpose. In addition to the above, we have the fact that certain letters from the Ford files which were offered in evidence by plaintiff indicated that Ford recognized it had made certain arrangements with Mr. Rea with respect to the facility in question and owed him some duty to honor them. The court let the jury determine whether the plaintiff Rea was justified in relying on the apparent authority of the Ford representatives, this being a matter to be determined in deciding whether there was a valid contract. (See Tr. 5065, 5066). The jury found against Ford on this score and it is the opinion of the court there was sufficient evidence for them so to find. In view of the fact that the construction of an operation of this facility at this new point by Rea was intimately connected with his opening up the new Ford Dealership, negotiations for which were in charge of the Pittsburgh District Sales Manager, and in view of the fact that when matters reached a critical point, Mr. Chase, the Market Representation Coordinator, was specifically sent out from Dearborn to handle the transaction, would be enough for Mr. Rea to conclude that they had apparent authority to act. It would not be appropriate for him to meet Mr. Chase at the airport and demand that he produce a resolution from the Ford Motor Company Board of Directors before he discussed the matter further with him. The court concludes that under Pennsylvania law Mr. Rea was entitled to rely on this apparent authority despite the alleged secret restrictions which Ford claimed it had imposed upon these agents. See Revere Press, Inc. v. Blumberg, 431 Pa. 370, 246 A.2d 407. See also Restatement of Agency 2d, Sections 8, 27 and 50. Our Court of Appeals has recently discussed apparent authority in Reading Co. v. Dredge Delaware Valley, 468 F.2d 1161 (3d Cir. 1972), as follows: “Apparent authority is the power to bind the principal where the principal has not actually granted authority but which he leads persons with whom his agent deals to believe that he has granted. Persons with whom the agent deals can reasonably believe that the agent has power to bind his principal if the principal knowingly permits the agent to exercise such power: Revere Press, Inc. v. Blumberg, 431 Pa. 370, 246 A.2d 407 (1968).” -X- -X * X X X “It is sufficient to create apparent authority if the principal should realize that his conduct is likely to create a belief that the agent is authorized to act for him. Restatement of Agency, 2d, § 27. Comment a, p. 104. See Revere Press, Inc. v. Blumberg, et al, 431 Pa. 370, 246 A.2d 407 (1968).” There is no evidence that Mr. Rea was aware of any limitations on the authority pf the Ford representatives if they existed. For this reason, we hold that the question of apparent authority was for the jury to decide. (d) Damages — Expenditures by 22 Ford, Inc. The contract with respect to the real estate was originally entered into between the individual plaintiff, Edward C. Rea, and the Ford Motor Company. The land was to have been bought and the facility constructed by Rea and then leased to Ford Motor Company and subleased back to the Dealership to be formed by Rea which is now 22 Ford, Inc. one of the two plaintiffs in this case. As previously noted, under Pennsylvania law, the purchaser under an oral contract for sale of real estate can recover any such expenditures made by him upon the faith of the contract. Therefore, the jury was told that Rea was entitled to recover any such expenditures made by him if they found the contract existed (Tr. 2154) but was further told they could not include expenditures for movable personal property and equipment which a tenant would remove at the end of the lease. Defendant claims that plaintiff should not be allowed to recover anything for breach of this oral contract for the reason that all expenditures appear to have been made out of the funds of 22 Ford, Inc. and not those of plaintiff Rea. The evidence shows that Rea was the owner of 91.3% of the capital stock of 22 Ford, Inc. (See plaintiff’s Exhibit 118) and, of course, had overwhelming control of the same. While the facility was being constructed, it appeared that electrical conduits had to be installed in the ground and that hoists also had to be installed for servicing cars. These items were not included in the construction price and this installation was very costly because the mechanism had to be installed in solid rock. In order to get the facility operating and, as believed by the jury, in reliance upon Ford commitments that eventually he would own the facility, Rea authorized the contractor to go ahead and make the installations and agreed to pay for them out of his own pocket. Instead of paying for them himself, however, he took the funds to pay the contractor out of the assets of 22 Ford, Inc. which he controlled. It is the opinion of the court that it does not lie in the defendant’s mouth to criticize or raise a question as to where Rea got the funds to which he had committed himself for payment to the contractor. The invoices showing payment of these amounts by 22 Ford, Inc. were introduced without objection by the defendant (plaintiff’s Exhibit 11). Rea could have borrowed the money from a bank and had the bank pay the contractor out of a construction fund and the defendant could not raise any question about Rea’s right to recover. We do not know what the arrangements between Rea and 22 Ford, Inc. are for repayment of these amounts. They may be considered loans to Rea by the corporation or dividends to him or he may be trustee of these amounts to repay them to 22 Ford, Inc. in the event of recovery. In any event, we do not see that this is any concern of the defendant or in any way militates against Rea’s recovery. Defendant also asserts that Rea is not the real party in interest with respect to this claim and therefore would not be entitled to any judgment. There are two answers to this argument: (1) Failure to timely object constitutes a waiver of that defense. See McLouth Steel Corp. v. Mesta Machine Corp., 116 F.Supp. 689 (E.D.Pa.1953) aff’d 214 F.2d 608 (3d Cir. 1954) cert. den. Hartford Acc. & Indemnity Co. v. Foster, 348 U.S. 873, 75 S.Ct. 109, 99 L.Ed. 687 (1954). (2) Rule 17(b) of the Federal Rules of Civil Procedure states: “The capacity of an individual, other than one acting in a representative capacity, to sue or to be sued shall be determined by the law of his domicile” in this case, Pennsylvania. Pennsylvania law is clear that a plaintiff may sue in his own name without joining as plaintiff any person beneficially interested, when such plaintiff is acting in a fiduciary or representative capacity, or is a person with whom or in whose name a contract has been made for the benefit of another. See Pennsylvania Rules of Civil Procedure, rule 2002, 12 P.S. Appendix. Defendant also argues that these items were trade fixtures which could be removed by the tenant at the end of the lease. The court admonished the jury that Rea was not entitled to recover for any movable equipment but only what he had contributed by way of permanent installation. The hoists and electrical conduits obviously could not, as a practical matter, be removed without seriously damaging the same and the building in which they were installed. For all practical purposes, the monies for these items represented contribution to the permanent overall cost of the building and since Rea is not getting the building, he is entitled to recover these items from the defendant. The above discussion covers the grounds for new trial pertaining to this cause of action. The motions for Judgment NOY or new trial as to this cause of action will be denied. (II) Automobile Dealers Franchise Act. The jury has found that defendant Ford breached its duty to act in good faith in performance or in complying with the terms of the franchise or sales agreement between 22 Ford, Inc. and Ford Motor Company as required by the Automobile Dealers Act sometimes known as the Automobile Dealers Franchise Act or the Automobile Dealers Day in Court Act (15 U.S.C. § 1221 et seq). The jury awarded $350,000 damages for this breach of, duty. The relevant sections of this statute are set out in Appendix II hereto. The complaint in this case, filed March 6, 1967, sets forth under the first cause of action in paragraph 5 that defendant knew that plaintiff was operating a successful Oldsmobile Dealership known as Rea Oldsmobile, Inc., under the General Motors Franchise in Wilkinsburg and in paragraph 8, it was averred that plaintiff was required to give up 'the General Motors Franchise in order to take over the Ford Dealership and that plaintiff did terminate his Oldsmobile Dealership. In the fourth cause of action, paragraph 35, it is averred that defendant failed to act in good faith in performing or complying with the terms, of its franchise agreement with plaintiff and threatened and coerced and intimidated him to enter into a lease agreement and that the defendant’s bad faith was further evidenced by failure to formalize the agreement to convey the dealership property to Rea and in paragraph 37, it is averred that these actions of the defendant were in violation of the Automobile Dealers Act, supra. Again, in the sixth cause of action, under the antitrust laws, it was alleged that defendant required plaintiff not to use or deal in the motor vehicles, parts and equipment of General Motors Corporation. This was alleged to be in violation of Section 3 of the Clayton Act and of the Sherman Act. It will be observed that under Section 4 of the Automobile Dealers Act, 15 U.S.C. § 1224, it is provided that this Act shall not repeal, modify or supersede directly or indirectly any provision of the antitrust laws and it has been held that it was intended to supplement the antitrust laws as a part of the antitrust program of the government. Schnabel v. Volkswagen of America, Inc., 185 F.Supp. 122 (N.D.Iowa 1960). The court instructed the jury that under the Automobile Dealers Act, plaintiffs could not recover for lack of good faith with respect to the failure of Ford to carry out the terms of the alleged contract for conveyance of real estate nor could plaintiffs recover for being required by alleged threats and intimidation to enter into the lease agreement for the use of the facility by the dealership because the Act in question covers only the written agreements contained in the dealership franchise agreement and nothing was said therein (Plaintiff’s Exhibit 118) relative to lease of any facilities or any undertaking to convey real estate to the plaintiffs. The court did, however, instruct the jury that they could find a cause of action under the Automobile Dealers Act if they found that the defendant, by coercion, threats and intimidation, had required plaintiff to give up the Oldsmobile Franchise with General Motors because it was specified in the franchise agreement that nothing was to be construed to prevent the dealer from dealing in the products of other manufacturers, (see Tr. 5079, 5083, 5087, 5122 and 5124, Paragraph 3 of Standard Provisions, Plaintiff’s Exhibit 118). There was ample evidence from which the jury could have found such coercion and intimidation as would justify a conclusion that this act was violated. The testimony is to the effect that Mr. Rea had indicated to Ford originally that he intended, if he took over the Ford agency, to sell his Oldsmobile Dealership so as to raise capital to open up the Ford Dealership. Notwithstanding the fact that the franchise agreement (Plaintiff’s Exhibit 118) clearly provided that the dealer had the right to make purchases from others, he testified that when he was ready to go into the new facility he asked the Ford District Sales Manager what would happen if he decided to keep his Oldsmobile Dealership and he was told that he had to give it up in order to continue as a Ford Dealer. He apparently thought at that time that he would be able to get sufficient capital without selling the Oldsmobile Dealership and he protested that there was nothing in the Ford Franchise Agreement which required him to give up the Oldsmobile agency. He was then told: “Well, that may be so, but the Ford Sales Agreement doesn’t ship cars and the Ford District Office does and if you don’t get rid of Oldsmobile, you won’t get a new Ford in that new building.” (Tr. 145-148). He was also told, “We are selling you these Fords on condition that you are not going to sell Oldsmobiles when the new building is ready.” (Tr. 149) and again, “If you don’t get rid of your Oldsmobile Franchise, you won’t get a Ford in that new building.” (Tr. 835). One can hardly imagine a more devastating threat or intimidation of an automobile dealer than to have the manufacturer tell him that it would not give him any cars to sell unless he complied with illegal requirements contrary to the terms of the dealership franchise. It will be observed that we do not have here a dealership franchise cancellation case as are most of the cases arising under this Act. Instead, we have a case involving failure to perform the contract in good faith. One of the leading cases with respect to the application of this Act is Milos v. Ford Motor Co., 317 F.2d 712 (3d Cir. 1963), cert. den. 375 U.S. 896, 84 S.Ct. 172, 11 L.Ed.2d 125 (1963). This was a termination case in which the court determined that enforcement of contractual obligations with reference to assignment of market potential was not coercion and indicated that the first question is whether the contract itself is coercive as written and, secondly, whether it was administered by the manufacturer in bad faith. In the instant case, we determine that the contract was not coercive as originally written but the jury had ample justification for determining that it was administered with bad faith and coercion. In Buono Sales, Inc. v. Chrysler Motor Corp., 449 F.2d 715 (3d Cir. 1971), a suit for discontinuing the production of the DeSoto Automobile, it was held that there was a violation of the dealership contract but no violation of the Automobile Dealers Act. The Court said that to succeed for violation of this Act, the dealer must show bad faith which requires evidence of coercion, intimidation or threats. It was held that termination alone would not be a violation of the statute but rather it must have been used as a threat in an attempt to force the dealer to do certain things. The court said: “These examples indicate that Congress was really trying to reach border-line antitrust violations. In fact, the purpose of the Act was to ‘supplement the antitrust laws.’ ” The court further said, “Furthermore, there was no ‘wrongful demand which will result in sanctions if not complied with.’ ” In the instant case, there was a wrongful demand as found by the jury which was to result in severe sanctions if not complied with. Again, in Berry Brothers Buick, Inc., v. General Motors Corp., 257 F.Supp. 542 (E.D.Pa.1966), referred to with approval in Buono Sales, Inc., supra, there was another termination case affirmed 377 F.2d 552 (3d Cir. 1967). It was held that the test of a cause of action under this Act is lack of good faith in connection with threats and coercion. There must be a wrongful demand. An unreasonable demand to accept cars or parts the dealer does not want “or else” might qualify as a cause of action but, in that particular case, it was held that there were no facts to show the manufacturer did not act in good faith. Again, in Garvin v. American Motor Sales Corp., 318 F.2d 518 (3d Cir. 1963), another termination case, it was held that to show bad faith, you must show coercion and the court pointed out that the legislative history showed that the manufacturer may appoint additional dealers unless the appointment is used for coercion and intimidation. In Globe Motors, Inc. v. Studebaker-Packard Corp., 328 F.2d 645 (3d Cir. 1964), the court held that there was insufficient evidence to support a jury’s determination that the manufacturer failed to act in good faith and the court reiterated the rule that the term “lack of good faith” was confined to the context of coercion and intimidation and it was held that plaintiff had failed to show that the manufacturer had discriminated against him and in favor of a competitor in the allocation of automobiles. It was further held that the dealers franchise agreement was an integrated contract and not subject to variation by parol evidence. Further in RAC Motors, Inc. v. World-Wide Volkswagen Corp., 314 F.Supp. 681 (D.C.N.J.1970), it was held that the Automobile Dealers Act created a new cause of action, that the test was not lack of good faith in the ordinary sense but lack of good faith in which coercion, intimidation and threats are implicit. The present case where there were threats and coercion fits more readily into American Motors Sales Corp. v. Semke, 384 F.2d 192 (10th Cir. 1967). Here a verdict for the plaintiff was sustained where the manufacturer refused to supply its franchised dealer with automobiles unless he ordered unwanted models and the court said, “Such action by a manufacturer comes clearly within the statute as is reflected by the legislative history of the Act mentioned above and thus amounts to coercive or intimidative acts and is sufficient to support a finding of ‘lack of good faith’ ”. There was also evidence that the manufacturer refused to honor its warranties. As previously pointed out, the complaint in this case clearly alleged the requirement that plaintiff get rid of his Oldsmobile or General Motors Dealership as a violation of Section 3 of the Clayton Act (15 U.S.C. § 14) . Since there was a factual question as to whether the effect of the demand on Rea requiring him to give up his Oldsmobile Dealership and thus not use or deal in the goods of a competitor of Ford Motor Company did lessen competition, this question under Section 3 of the Clayton Act was submitted to the jury. (Tr. 5085, 5086, 5113, 5114). The court, however, did comment that it would not appear that the effect of this transaction was substantially to lessen competition or tend to create a monopoly in any line of commerce for the reason that it appeared that when Rea got rid of his Oldsmobile Dealership, it was to another dealer who immediately continued the business and was still in operation and thus there was no change in the competitive position of General Motors, vis-avis Ford. The court was concerned particularly that the jury might find a violation of Section 3 of the Clayton Act and award damages including this item in the general award of damages for violation of the other antitrust laws thus resulting in a recovery duplicating that under the Automobile Dealers Act. The jury’s special verdict shows, however, the intelligence and discrimination with which the jury approached these issues because in answer to question 8, as to whether the defendant had violated Section 3 of the Clayton Act, by forbidding Rea to deal in goods and commodities of a competitor, viz: Oldsmobile automobiles, where the effect was substantially lesser competition or create a monopoly, they answered: “No”. It is thus clear that the jury did not consider this conduct as violating the other antitrust laws but did specifically find a violation of the Automobile Dealers Act. We find nothing inconsistent with respect to these findings of the jury. As pointed out in the court’s charge, a violation of Section 3 of the Clayton Act was at best questionable under the evidence in this case and the jury merely viewed this in the same light as the court. On the other hand, the jury clearly found under other instructions of the court that there was coercion and intimidation in violation of the Automobile Dealers Act and awarded damages accordingly. In the Title to the Automobile Dealers Act as quoted by our Court of Appeals in Bateman v. Ford Motor Co., 302 F.2d 63 (3d Cir. 1962) the purpose was stated to “supplement the antitrust laws in the United States in order to balance the power now heavily weighted in favor of automobile manufacturers * * * ”. Thus, Congress clearly envisaged that certain conduct by a manufacturer might not rise to the heights of an antitrust violation but nevertheless constitute such inequity as demanded a remedy and that is what the jury determined in this act. Notwithstanding the above, defendant raises various objections to the jury’s verdict under the Automobile Dealers Act: (a) Claim not pleaded. (a) It is claimed that the allegations supporting this cause of action were not contained in the complaint or in plaintiff’s pretrial narrative statement. We have previously pointed out the allegations pertaining to demands that he cancel his General Motors Franchise were contained in the sixth cause of action in the complaint in which he claimed violation of Section 3 of the Clayton Act and also the Sherman Act and in the fourth cause of action alleging violation of the Automobile Dealers Act, it was alleged that the defendant failed to act in good faith in performing or complying with the terms or provisions of its franchise agreement by deceiving and threatening plaintiff with respect to the lease agreement. In the pretrial narrative statement, at page 16, a claim was made for damages from losses sustained by Rea Oldsmobile, Inc. (a predecessor as will be discussed later) resulting from the requirement that the Oldsmobile contract be terminated and that plaintiffs would not sell other products. At page 22, in the claim for damages, a claim was made for loss of estimated gain and net worth by Rea Oldsmobile of $400,000. At page 45 and 46, claims were set forth under the Automobile Dealers Franchise Act as the result of the failure of the manufacturer in good faith to comply with the franchise agreement. “The fact that plaintiff has postulated a faulty theory in support of the claim does not justify dismissal if there are grounds for relief on another theory.” Garza v. Chicago Health Clubs, Inc., 347 F.Supp. 955 (N.D.Ill.1972). It thus appears that defendant was well informed that plaintiff was basing a claim upon the requirement that he cancel his Oldsmobile Franchise. We are taught that, pleadings in antitrust actions are to be given a liberal interpretation. See Travis v. Fairmount Foods Co., 346 F.Supp. 679 (E.D.Pa.1972); Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Exhibitors Poster Exchange, Inc. v. National Screen Service Corp., 421 F.2d 1313 (5th Cir. 1970). In view of the fact that defendant had ample notice and warning that plaintiff was relying upon the enforced cancellation of its Oldsmobile Franchise as part of its causes of action, it is our opinion that it was in the power of the court to prevent manifest injustice to allow this issue to go to the jury and that this was not an abuse of discretion. See Moore v. Sylvania Electric Products, Inc., 454 F.2d 81 (3d Cir. 1972). See also Sherman v. United States, 462 F.2d 577 (5th Cir. 1972) where the court said: “The trial judge is vested with broad discretion to preserve the integrity and purpose of a pretrial order. Basically, these orders and stipulations, freely and fairly entered into, are not to be set aside except to avoid manifest injustice. Fed.R.Civ.P. 16. However, in the interest of justice and sound judicial administration, an amendment of a pretrial order should be permitted where no substantial injury will be occasioned to the opposing party, the refusal to allow the amendment might result in injustice to the movant, and the inconvenience to the court is slight. See Central Distributors, Inc. v. M.E.T., Inc., 5 Cir. 1968, 403 F.2d 943, 946; Henry v. Commissioner of Internal Revenue, 5 Cir. 1966, 362 F.2d 640, 643; Laird v. Air Carrier Engine Service, Inc., 5 Cir. 1959, 263 F.2d 948.” See also Rule 16 of the Federal Rules of Civil Procedure. If defendant had not been well aware that plaintiff was relying in part on the enforced cancellation of its Oldsmobile Franchise our decision would be otherwise. (b) The Statute of Limitations. As noted above, the Automobile Dealers Act in Section 3 (15 U.S.C. § 1223) provides a three-year statute of limitations “after the cause of action shall have accrued”. The complaint was filed March 6, 1967. The Oldsmobile Franchise was cancelled by plaintiff on August 31, 1964, well within the three-year period. This cancellation was the result of threats of Ford representatives made during the period March 1, 1964 to August 31,1964 (Tr. 144-148). We hold the cause of action did not accrue until the cancellation on August 31, 1964, well within the three-year period. (c) Failure to Submit Dispute to Dealer’s Policy Board. We have examined plaintiff’s Exhibit 118, paragraph 2(g) of Standard Provisions upon which defendant relies and can find therein no clear requirement that plaintiff had to submit disputes arising out of threats and coercions to stop delivery of cars to him to the Dealers Policy Board as a prerequisite to bringing suit in court for violation of the Automobile Dealers Act and it is questionable whether such a clause could oust the court of jurisdiction to entertain the suit under the Act, particularly when the matter complained of is tied in with threats and coercion and intimidation. This is not a clause that requires submission of disputes to arbitration as a condition precedent to bringing action in court. We therefore do not reach the question of whether submission of the issues to such a Board apparently dominated by the company executive committee would be a vain thing under the circumstances. We have considered Bateman v. Ford Motor Co., 302 F.2d 63 (3d Cir. 1962) and the district opinion on remand Bateman v. Ford Motor Co., 214 F.Supp. 222 (E.D.Pa.1963) in which there was dicta to the effect that the dealer breached his contract by not reporting acts of coercion to the Dealer Policy Board. But there the court also found there was no coercion, intimidation or lack of good faith on the defendant’s part. It appears that the clause in question (2g) in Bate-man, as here, did not require submitting claims of coercion and so forth to the Policy Board as a requirement for bringing suit or specify any penalty for failure to bring the matter to the Board. (d) Claim Made By Wrong Party. The jury in this case very properly awarded the damages for violation of the duty owed under the Automobile Dealers Act to 22 Ford, Inc., the authorized Ford Dealer. Defendant now claims that if there was any cause of action for violation of the Automobile Dealers Act, the same belonged to a separate entity viz: Edward C. Rea, Inc. d/b/a 22 Ford Sales, Inc. The original franchise agreement had been awarded to Edward C. Rea, Inc. d/b/a 22 Ford Sales, Inc. on February 11, 1964 (plaintiff’s Exhibit 118). This agreement was later, on March 9, 1966, assigned to 22 Ford, Inc., the corporate plaintiff in this law suit. This assignment was accepted and consented to by the defendant on April 21, 1966, and defendant Ford also consented to the change of name of the dealer to 22 Ford, Inc. It is clearly indicated that plaintiff, Edward C. Rea, the individual plaintiff, owned 91.3% of the capital stock of 22 Ford, Inc. The original threats were made personally to Edward C. Rea, a person in control of both corporations. Under the Automobile Dealers Act, only the dealer can bring suit. The threats made to Mr. Rea in March through August, 1964, obviously referred to what would happen to the corporate dealer if Rea did not get rid of his Oldsmobile Dealership and these threats gave rise to a cause of action under the Automobile Dealers Act. This cause of action was included in the transfer of rights under the dealership agreement to 22 Ford, Inc. in April 1966 and thus 22 Ford, Inc. as a successor to Edward C. Rea, Inc.’s rights under the franchise was entitled to bring suit and recover damages resulting from those threats. (e) Damages Excessive or Conjectural. The damages allowed by the jury in the amount of $350,000 were amply sustained by the testimony of the expert Dr. Staelin and the exhibits prepared by him (plaintiff’s Exhibits 242 (a), (b) and (c). He projected the profits which would have been obtained had the Oldsmobile Dealership been continued and came up with two figures either one of which he testified was proper, one of $559,000 and the other of $690,000. These figures were based upon profits before taxes and bonuses. The jury very properly concluded that other factors should be considered and allowed only $350,000 which again demonstrates the discriminating care with which the jury approached this case. It will be noted that Dr. Staelin only projected the lost profits to the date of trial and did not allow anything for the future which might have been too speculative to consider. See Volasco Products Co. v. Lloyd A. Fry Roofing Co., 308 F.2d 383 (6th Cir. 1962). The jury was told at Tr. 5087 that the validity of Dr. Staelin’s testimony was for them to determine, that they could adopt or reject it in whole or in part. (f) Trial Errors. Defendant complains of certain trial errors as to this cause of action: (1) It is claimed the court erred in instructing the jury as to the purpose of the Automobile Dealers Act in mentioning the large economic power of the manufacturer versus that of a single dealer. (See Tr 5077-5083) It should be sufficient answer to this that there does not appear to have been any exception taken to this. Regardless of this, all the court really did was explain to the jury the purpose of the act as set forth by the Court of Appeals in Milos v. Ford Motor Co., supra, and tell them that the question as to the wisdom of this legislation was a matter for Congress to decide. We see no error here. This is paragraph 23(b) of the Motion for New Trial or Judgment NOV. (2) In reason 23(q) of the Motion for New Trial, defendant complains of the court’s charge with respect to coercion and intimidation by Ford representatives as being a violation of the Automobile Dealers Act. This has been fully covered in the foregoing discussion in this section of the opinion and merits no further mention here. (3) Reason 23(a) of the Motion for New Trial complains of the court’s remark to the jury that they could find that Rea had changed his mind about selling his Oldsmobile Dealership. (Tr 5086) This is in accordance with Rea’s testimony at Tr. 831-835 where he stated that he had inquired what would happen if he decided not to sell his Oldsmobile Dealership and was told he would get no more cars. The Motions for Judgment NOV or new trial with respect to the cause of action based upon violation of the Automobile Dealers Act will be denied. (Ill) Sherman Act, Section 1. With respect to the antitrust laws, plaintiffs’ first claim is that there was a violation of the Sherman Act, Section l. For this plaintiffs claim they are entitled to recover damages under Section 4 of the Clayton Act (15 TJ.S.C. § 15). Since there is no evidence of any contract in restraint of trade, we must turn our attention to the question of whether the evidence shows a combination or conspiracy in restraint of trade or commerce among the several states or with foreign nations and whether this has resulted in damage to the business or property of the plaintiffs. The jury so found in answering questions 6 and 7 in the affirmative and answered a question as to Section 3 of the Clayton Act (question 8) in the negative and then found plaintiffs’ damages were $1,750,000. There seems to be no dispute that both defendant and the plaintiffs were engaged in interstate commerce. The vehicles which plaintiffs sold came from assembly plants in other states and Canada. Plaintiffs’ sales were made not only in the Pittsburgh, Pennsylvania area but also to persons in other states. It is elementary of course that a defendant such as Ford Motor Company cannot conspire with itself or combine with itself to restrain trade. However, it has also been held that a parent corporation such as Ford Motor Company here can conspire with its wholly owned subsidiaries. Perma Life Mufflers v. International Parts, 392 U.S. 134, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968). See also Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211, 71 S.Ct. 259, 95 L.Ed. 219 (1950). In this case there is evidence that the defendant conspired or combined with its wholly owned factory stores and dealer development stores which the evidence shows were separate corporations. The prime target of plaintiffs’ evidence in this case is the operation of the store on Baum Boulevard in Pittsburgh, Pennsylvania known as Triangle Ford which it appears was a wholly owned factory store. There were also others at various times in the Pittsburgh area. The evidence shows that not only Ford Dealers but also Lineoln-Mercury Dealers compete with each other and with Ford Dealers. In this connection, the defendant claims that the court erred in referring to Ford Marketing Corporation as a possible subsidiary with whom the defendant could conspire or combine in restraint of trade. [See reason for new trial 23(d).] The claim is made that Ford Marketing Corporation was not incorporated until 1970 and that most of the injury and damage had occurred before this date. A close examination of the court’s charge on this subject which is found at page 5100 et seq., where there was discussion relative to a corporation conspiring with itself or with its subsidiaries will show that the Ford Marketing Corporation was used merely as an illustration of how a manufacturer could conspire with its subsidiaries. If the court misunderstood the evidence as to the date the Ford Marketing Corporation entered the picture, this could have easily been corrected had the court’s attention been called to it, but the record shows there was no exception taken to this part of the charge. See page 5126. See Federal Rule of Civil Procedure 51, Morley v. Branca, 456 F.2d 1252 (3d Cir. 1972). It is elementary that the existence of a combination or a conspiracy may be shown by circumstantial evidence and may be inferred from the circumstances of the case. Ordinarily, in the case of a conspiracy, the fact of the conspiracy is seldom capable of proof by direct testimony and is inferred from the things actually done. This is particularly true of that portion of the Sherman 1 case here which pertains to the fleet sales to Hertz and Avis and other national car leasing companies. American Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575 (1945); Flintkote Co. v. Lysfjord, 246 F.2d 368 (9th Cir. 1957). Kiefer-Stewart v. Seagrams, supra. In United States v. General Motors Corp., 384 U.S. 127, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1965), the court stated: “It has long been settled that explicit agreement is not a necessary part of a Sherman Act conspiracy * * * ” It further stated: “ . . . nor do we propose to construe the Sherman Act to prohibit conspiracies to fix prices at which competitors may sell, but to allow conspiracies or combinations to put competitors out of business entirely.” In the instant case, Ford Motor Company, by operating factory stores and dealer development stores which were under its domination, was in competition with its own dealers. Therefore, when it adopted a course of action in combination with such stores to drive any of these independent dealers out of business or to dominate the market, it was certainly engaged in combination or conspiracy or restraint of trade under the Sherman Act. See United States v. McKesson & Robbins, Inc., 351 U.S. 305, 76 S.Ct. 937, 100 L.Ed. 1209 (1956). We have no doubt that there is nothing inherently evil in a dual distribution system whereby a manufacturer may sell its own products to the customers directly through company outlets along side independent dealers. [See the remarks by the Antitrust Division of the United States Department of Justice — Hearings before the Select Committee on Small Business of the United States Senate Judiciary Committee (1963) quoted at page 58 of plaintiffs’ post-trial brief.] When, however, the manufacturer who as in this case is a member of an oligopoly secretly sets up factory stores and so-called dealer development stores for the avowed purpose of dominating the market in certain metropolitan centers regardless of the consequences to the independent dealers or for the avowed purpose of driving them out of business, then a violation of the antitrust laws occurs. Ford, the second largest manufacturer of automobiles in the United States, is the only source of Ford motor vehicles, and if it chooses to dominate a local market through the operation of factory stores and dealer development stores, it is certainly in a position to do so. The record in this case contains evidence which, if believed by the jury, as it obviously was, shows a predatory intent on the part of the defendant to dominate certain metropolitan markets to the damage of its independent distributors such as the plaintiff herein. We do not in this case have to rely upon inferences from circumstantial evidence to determine Ford’s intent. Here, in contrast to many other cases, we have actual undenied evidence of such purpose. Witness Schroll testified to certain statements made by executives of the Ford Motor Company which clearly showed this intent. (See Tr. pp. 1340-1346). For instance, George Callas, Dealer Developm