lumber dealers formed a voluntary association, agreeing that they would not deal with any manufacturer or wholesaler who would sell directly to consumers at any point where a member of the association was retailing, and that, whenever any wholesaler or manufacturer made such sale, their secretary should notify all the members. Plaintiff, having made such a sale, the secretary threatened to send such notice. It was held not actionable, nor ground for an injunction.1 It has been held that the rule is not to be ap act. Bohn Mfg. Co. v. Hollis, 54 may lawfully do singly, two or Minn. 223; s. c., 55 N. W. Rep. more may lawfully agree to do 1119. "To enable the plaintiff to jointly. The number who unite to maintain this action, it must ap- do the act cannot change its charpear that defendants have com- acter from lawful to unlawful. The mitted, or are about to commit, gist of a private action for the some unlawful act which will in- wrongful act of many is not the terfere with, and injuriously affect, combination or conspiracy, but the some of its legal rights. We ad- damage done or threatened to the vert to this for the reason that plaintiff by the acts of the defendcounsel for plaintiff devotes much ant. If the act be unlawful, the space to assailing this association combination of many to commit it as one whose object is unlawful may aggravate the injury, but canbecause in restraint of trade. We not change the character of the fail to see wherein it is subject to In a few cases there may be this charge; but even if it were, some loose remarks apparently to this would not, of itself, give plaint- the contrary, but they evidently iff a cause of action. No case can have their origin in a confused and be found in which it was ever held inaccurate idea of the law of origthat, at common law, a contract or inal conspiracy, and in failing to agreement in general restraint of distinguish between an unlawful trade was actionable at the instance act and a criminal one. It can of third parties, or could constitute never be a crime to combine to the foundation for such an action. commit a lawful act, but it may be The courts sometimes call such a crime for several to conspire to contracts unlawful' or illegal,' commit an unlawful act, which, if but in every instance it will be done by one individual alone, alfound that these terms were used though unlawful, would not be in the sense, merely, of void' or criminal. Hence, the fact that the unenforceable' as between the defendants associated themselves parties; the law considering the together to do the act complained disadvantage so imposed upon the of is wholly immaterial in this contract a sufficient protection to case. We have referred to this for the public. Mogul Steamship Co. the reason that counsel has laid v. McGregor, L. R. 23 Q. B. great stress upon the fact of the Div. 598; s. C., L. R. (1892) combination of a large number of App. Cas. 25. What one man persons, as if that, of itself, ren plied to the relation of principal and agent. In a recent case in Texas it was held that a contract, by which a manufacturer of windmills granted exclusive territory for their sale to a firm, the windmills, after shipment, to remain the property of the maker until sold by the consignees, then to be paid for at a fixed price, was one of agency, and did not create a trust or conspiracy against trade as defined and prohibited by Act March 30, 1889, p. 141, though it fixed the prices at which the windmills were to be sold, and bound the consignees to handle no other kind; the statute having no application to contracts between principal and agent.1 § 82. Combinations for Regulating Prices.—An association of business men, of firms or of corporations, the object of which is to control the price of any commodity, is held to be a conspiracy in restraint of trade, and as such illegal. All contracts for the carrying out of the purposes of such associations, as well as the covenant under which they are formed, are in contravention of public policy and void. In a leading case in Ohio, a voluntary association of salt manufacturers was made for the purpose of selling and transporting that commodity. By the articles of association, all salt manufactured or owned by the members, when packed in barrels, became the property of the company, whose committee was authorized and required to regulate the price and grade thereof, and also to control the manner and time of receiving salt from the members, and each member was prohibited from selling any salt during the continuance of the association, except by retail at the factory, and at prices fixed by the company. It was held that such agreement was in restraint of trade, and void as against public policy.2 In the opinion in this case the court said: "The clear tendency of such an agreement is to establish a monopoly and to destroy competition in trade, and for that reason, on grounds of public policy, courts will not aid in its enforcement. It is no answer to say that v. McConoughy, 79 Ill. 349; Valentine v. Stewart, 15 Cal. 404; Prost v. More, 40 Cal. 347; People v. Fisher, 14 Wend. 9; Stanton v. Allen, 5 Denio, 434; Saratoga Bank v. King, 44 N. Y. 87; Doolin v. Ward, 6 Johns. 194; Wilbur v. How, 8 Johns. 444; Jones v. Caswell, 3 Johns. Cas. 29; Hood v. Palm, 8 Pa. St. 238; Mifflin v. Commonwealth, 5 W. & S. 461; Pacific Factor Co. v. Adler, 90 Cal. 110; S. C., 27 Pac. Rep. 36; Vulcan Powder Co. v. Hercules Powder Co., 96 Cal. 510; s. c., 31 Pac. Rep. 581; Richardson v. Crandall, 38 How. Pr. 142; Burt v. Place, 6 Cow. 431; Darmoth v. Bennett, 15 Barb. 601; People v. Fisher, 14 Wend. 9; Hooker v. Vandewater, 4 Denio, 349; Tylee v. Yates, 3 Barb. 222; Stanton v. Allen, 5 Denio, 434; De Witt Wire Cloth Co. v. New Jersey Wire Cloth Co., 14 N. Y. Supl. 277. "Bearing in mind the fact found that the product of the Butler company's mines was largely in excess of 2,000 tons per month the object of the agreement is plain. The defendant, without binding himself to take the whole product of the mines of the Butler company, endeavored by this agreement to keep all of the coal of that company out of the market, except the limited amount which it agreed to take, and thus to artificially enhance the price of that necessary commodity. This purpose was the basis of the whole agreement, and as is found by the referee, was understood by both parties at the time of entering into the contract. That a combination to effect such a purpose is inimical to the interests of the public, and that all contracts designed to effect such an end are contrary to public policy, and therefore, illegal, is too well settled by adjudicated cases to be questioned at this day. Every producer or vendor of coal or other commodity has the right to use all legitimate efforts to obtain the best price for the article in which he deals. But when he endeavors to artificially enhance prices by suppressing or keeping out of the market the products of others, and to accomplish that purpose, by means of contracts binding them to withhold their supply, such arrangements are even more mischievous than combinations not to sell under an agreed price. Combinations of that character have been held to be against public policy and illegal. If they should be sustained, the prices of articles of pure necessity, such as coal, flour and other indispensable commodities, might be artificially raised to a ruinous extent far exceeding any naturally resulting from the proportion between supply and demand. No illustration of the mischief of such contracts is, perhaps, more apt than a monopoly of anthracite coal, the region of the production of which is known to be limited. Parties entering into contracts of this description must depend upon each other for their execution, and cannot derive any assistance from the courts." Arnot v. Pittston & El competition in the salt trade was not, in fact, destroyed, or that the price of the commodity was not unreasonably advanced. Courts will not stop to inquire as to the degree of injury inflicted upon the public; it is enough to know that the inevitable tendency of such contracts is injurious to the mira Coal Co., 68 N. Y. 558, 565. "In Rex v. De Berenger, 3 M. & S. 67, it was held to be a conspiracy to combine to raise the public funds on a particular day by false rumors. The purpose itself, said Lord Ellenborough, is mischievous-it strikes at the price of a valuable commodity in the market, and if it gives a fictitious price by means of false rumors it is a fraud levelled against the public, for it is against all such as may possibly have anything to do with the funds on that particular day. Every corner in the language of the day, whether it be to affect the price of articles of commerce, such as breadstuffs, or the price of vendible stocks, when accomplished by confederation to raise or depress the price and operate on the markets, is a conspiracy. The ruin often spread abroad by these heartless conspiracies is indescribable, frequently filling the land with starvation, poverty and woe. Every association is criminal whose object is to raise or depress the price of labor beyond what it would bring if it were left without artificial aid or stimulus. Rex v. Byerdike, 1 M. & S. 179. In the case of such associations the illegality consists most frequently in the means employed to carry out the object. To fix a standard of prices among men in the same employment, as a fee bill, is not in itself criminal, but may become so when the parties resort to coercion, restraint or penalties upon the em to ployed or employers; or what is worse, to force of arms. If the means be unlawful the combination is indictable. Commonwealth v. Hunt, 4 Metc. 111. A conspiracy of journey men of any trade or handicraft to raise the wages by entering into combination to coerce journeymen and master workmen employed in the same branch of industry conform to rules adopted by such combination for the purpose of regulating the price of labor and carrying such rules into effect by overt acts, is indictable as a misdemeanor. 3 Wharton, C. L.. citing The People v. Fisher, 14 Werd. 9. Without multiplying examples, these are sufficient to illustrate the true aspect of the case before us, and to show that a combination, such as these companies entered into, to control the supply and price of the Blossburg and Barclay regions, is illegal, and the contract therefore void." Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. St. 173. 187. In Mill and Lumber Co. v. Hayes, 76 Cal., at page 392, the court says: "In the case at bar the facts are, as we think, even stronger against the plaintiff than in Arnot v. Pittston and Elmira Co., 68 N. Y. 558. Here, it entered into a contract with the object and view to suppress the supply and enhance the price of lumber in four counties of the State. The contract was void as being against public policy, and the defendants, as they had a right to do, repudiated the contract. public. In the recent leading case of Ford v. Chicago Milk Shippers Association, before the Supreme Court of Illinois, it was held that an association formed for the purpose of regulating the price of milk sold by the members thereof in a particular city to retail dealers, which purpose is carried out by the concurrent action of the members and the association, is within the Act of June 11, 1891, prohibiting pools, trusts and combinations. The incorporation of a body of milk shippers, who have combined to fix the price of milk, in violation of the Act of June 11, 1891, to prevent pools, trusts and combinations, will not render the combination legal on the ground that the corporation cannot alone enter into a trust, as the acts of the corporation are those of the associated persons as individuals. The Act of June 11, 1891, forbidding pools, trusts and combinations to control the price of any commodity, applies to a corporation formed previous to its passage.2 In the opinion in this case, Mr. Justice Phillips said: "The statute by its terms. makes a combination, trust or agreement between corporations, partnerships, associations or individuals to fix the price of any article of merchandise, or to limit the amount Plaintiff, who has parted with nothing of value, now seeks to recover damages for non-delivery of lumber under this contract. Plaintiff had an undoubted right to purchase any or all of the lumber it chose, and to sell at such prices and places as it saw fit, but when, as a condition of purchase it bound its vendor not to sell to others under a penalty, it transcended a rule the adoption of which has been dictated by the experience and wisdom of ages as essential to the best interests of the community, and as necessary to the protection alike of individuals and legitimate trade. With the results naturally flowing from the laws of demand and supply, the courts have nothing to do, but when agreements are resorted to for the purpose of taking trade out of the realm of competition, and thereby enhancing or depressing prices of commodities, the courts cannot be successfully invoked, and their execution will be left to the volition of the parties thereto." 1 Central Ohio Salt Co. v. Guthrie, 35 Ohio St. 672. 2 Ford v. Chicago Milk Shippers Association, 155 Ill. 166; s. c., 39 N. E. Rep. 651. See also Central Shade Roller Co. v. Cushman, 143 Mass. 353; s. c., 9 N. E. Rep. 629; Urmston v. Whitelegg, 63 L. T. 455; Judd v. Harrington, 19 N. Y. Supl. 406; Stanton v. Allen, 5 Denio, 434; Anderson v. Jett, 89 Ky. 375; s. c., 12 S. W. Rep. 670; Handforth v. Jackson, 150 Mass. 149. |