Before PHILLIPS, Chief Judge, MURRAH, Circuit Judge, and RITTER, District Judge.
RITTER, District Judge: Z. T. Naifah, doing business as Sooner Sales Co.,*fn1 brought action against Ronson Art Metal Works, Inc.,*fn2 to recover treble damages for alleged violations of the Clayton Act, as amended by the Robinson-Patman Act, and particularly Title 15 U.S.C.A. Section 13(a) and Section 13(e).*fn3 From a judgment in favor of Ronson, Sooner appeals.
Sooner is a wholesale distributor of cigars, tobacco, candy, specialties, lighters and drugs in Oklahoma City, Oklahoma, and in the surrounding trade area to a distance of 75 to 100 miles from Oklahoma City.
Ronson, a New Jersey corporation with its home office at Newark, is a manufacturer of cigarette lighters and lighter accessories which it sells in interstate commerce.
On December 8, 1949, Sooner gave an order for lighter accessories to Buck Powers, a Ronson agent. Thereafter, from time to time, Sooner ordered Ronson lighters and lighter accessories and upon delivery distributed them to retail dealers for resale. Each order was taken on a standard Ronson order blank, and contained the express provision that the order was not binding on Ronson until accepted by it at the home office in Newark, New Jersey. Sooner was allowed a discount from the retail list price of 50 percent plus an additional 10 percent on the balance. Sooner allowed retailers an average discount of 40 percent from list price. At no time did Ronson give Sooner any directions or instructions or impose any restrictions with respect to the prices at which the merchandise was to be sold to retailers.
For approximately two years Sooner distributed to various retailers in the Oklahoma City trading area a substantial quantity of Ronson lighters and lighter accessories. All of the orders submitted before January 30, 1952, were accepted and filled within a week or ten days.
On January 29, 1952, Powers called Sooner by telephone and arranged a meeting at a hotel in Oklahoma City. At that meeting Powers told Sooner that he would no longer be permitted to distribute Ronson products. There had been some disagreement between Sooner and Powers about whether certain items should be included in the orders, and Sooner advised the agent that orders would have to be accepted as made up by Sooner and that he would not permit Powers to make up the orders. Sooner protested the termination of the distributorship and Powers said he would call the home office. On the following morning Powers advised Sooner that the distributorship would be continued and took an order amounting to $700.00 or $800.00. This order, together with a number of orders subsequently submitted by Sooner, were never filled by Ronson. Although he had no authority to bind Ronson on any order from a wholesaler, Powers continued to inform Sooner that the orders would be filled.
By June, Sooner had a depleted stock of Ronson merchandise and was unable to fill orders from retailers. He called Ronson's home office by telephone and asked when the orders would be filled. He was told that an answer would be forthcoming in the next few days. On June 9, 1952, an official of the company wrote to Sooner and stated in part:
"At the present time we are reducing our distribution in most sections of the country, and in your market area we find that we are very well covered with distribution by other distributors.
"We therefore regret that we shall be unable to ship any further Ronson merchandise to you. This move is consistent with our current policy of reducing our distributors in all territories where we already have adequate coverage."
On June 13, 1952, Sooner informed Ronson by letter that he did not care whether he had the Ronson line any longer. A few days later Sooner made a request to the Ronson home office to take back the remaining stock of merchandise which had not been sold to retailers. Accordingly, Powers called at Sooner's place of business on July 3, 1952, to inventory the stock on hand. He offered to pack and ship to the home office all of the merchandise which Sooner wanted to return and to give Sooner a credit memorandum for it. Sooner was told that there would be certain deductions for transportation and handling and that some of the items would have to be depreciated. Sooner refused to return the items on the terms offered and insisted that Ronson pay cash for the merchandise before it was shipped, in some instances in amounts greater than those which Sooner had originally paid to Ronson for the same items. At the time of the trial, Sooner had disposed of about half of the remaining items on hand.
On January 29, 1952, the same day Sooner was notified that he would no longer be a distributor for Ronson products in the Oklahoma City trade area, Powers arranged with Consolidated Wholesale Company*fn4 to distribute Ronson products in that area and took an order from them for about $700.00 worth of merchandise. This order was filled in due course. Thereafter, Consolidated distributed Ronson's products and paid the regular retail list price for merchandise, less discounts of 50 percent plus 10 percent on the balance, the same discount terms received by Sooner prior to January 29, 1952, on the goods he had received from Ronson.
There is no evidence that Ronson discriminated in any way against Sooner, although Sooner claims that Ronson's refusal to accept and fill Sooner's orders after January 29, 1952, was a discrimination. There is no evidence that in selecting Consolidated to distribute its products and in accepting orders from Consolidated, Ronson did anything in restraint of trade or engaged in any transaction which was not bona fide.
Sooner's position is that the conduct of the parties established him as a Ronson distributor and customer in the Oklahoma City trading area; that from January 30, 1952, until shortly after June 9, 1952, while still a customer of Ronson, he was forced to compete with Consolidated, another customer of Ronson, with a depleted and non-representative stock of Ronson lighters and lighter accessories. This disadvantage, Sooner claims, was the direct result of Ronson's withholding delivery of goods ordered by Sooner, at the same time it was making regular delivery of goods of like grade and quality to a competing purchaser. Sooner claims that the failure to provide him with goods while providing them to Consolidated was an indirect price discrimination in violation of Section 13(a) of the Act, just as if the goods had been delivered at a ...