In Krror to the Circuit Court of the United States for the Northern District of California,

Action by the Corn Products Refining Company against the Dong Syrup Refining Company. Judgment for plaintiff, and defendant brings error.

The defendant in error was plaintiff in the court below, where it brought, the action to recover of the plaintiff in error a balance of ¡$2,059, alleged to be due it for certain glucose sold and delivered to Hie defendant by the plaintiff during the months of January and March, 1908.

The defendant to the action by its answer denied that there was any balance due the plaintiff from it, and, in addition to that denial, set up as a separate answer and counterclaim these facts: That in the month of November, 1908, the plaintiff made the offer and agreement to and with the defendant that, if the defendant would thereafter purchase glucose from the plaintiff exclusively, the latter, in consideration thereof, would share with the defendant its profits, offering and promising to pay the defendant on the 31st day of December, 1907, 10 cents for each 100 pounds of all glucose that the defendant would buy from the plaintiff during the period beginning July 1, 1906, and ending December 31, 1908, provided the defendant would buy from the plaintiff at its reasonable value all glucose used 'by it during that period and also during the year 1907; that the plaintiff further offered and agreed to continue to share its profits with the defendant annually thereafter in consideration of the defendant’s purchasing its glucose exclusively from the plaintiff; tha't, in consideration of that offer and agreement, the defendant did purchase from the plaintiff all of the glucose used by it from July 1, 1906, to December 31, 1907; that, pursuant to the plaintiff’s promise to continue to share its profits, it promised and agreed with the defendant that, if the latter would buy from the plaintiff all of the glucose it would use during the year 1908, and would pay therefor the reasonable value thereof, the plaintiff would on the 31st day of December. 1908, pay the defendant 15 cents for each 100 pounds of glucose purchased of the plaintiff by defendant during the year 1907, and would mal$e such payment on the 31st day of December, 1908; that during the year 1907 the defendant purchased from the plaintiff 1,245,406 pounds of such glucose, and that 15 cents for each 100 pounds thereof amounts to the sum of $1,868.11; that during the months of January and March the defendant ordered from the plaintiff certain shipments of glucose, aggregating over 250,000 pounds, which were delivered to the defendant by the plaintiff, and that the plaintiff charged and demanded from the defendant therefor about 30 cents a hundred pounds in excess of its reasonable value; that the plaintiff refused to sell the said 250,000 pounds at its reasonable value or market price; that the repeated exaction of unreasonble and excessive charges by the plaintiff forced the defendant, in order to meet competition in its products, to buy the glucose needed by it from others, which it did at a price greatly below that charged by the plaintiff, by reason of which action on the part of the plaintiff the defendant was prevented from purchasing glucose exclusively from the plaintiff during the remainder of the year 1908, and was thereby damaged in the sum of $1,868.11, no part of which was paid or allowed to the defendant by the plaintiff.

Further answering, and by way of counterclaim, the defendant alleged in its answer that prior to the commencement of the action, and within two years then last past, the plaintiff became possessed of $1,868.11 belonging to the defendant, which it had theretofore received to and for the use and benefit of the defendant, no part of which had been paid.

The prayer of the answer was that the plaintiff take nothing by the action, and that the defendant recover costs.

The case was tried with a jury, and, upon the conclusion of the evidence, the court, at the plaintiff’s request, instructed the jury to return a verdict for the plaintiff, which was done, and, judgment for the plaintiff following, the case is brought here by the defendant upon writ of error, on an exception taken by it to that instruction.