to be sold, an offense, which is sought to be prohibited; and it farther provides that a purchaser of any article or commodity from any individual, company or corporation transacting business contrary to the preceding sections of the act shall not be liable for the price or payment of such article or commodity. The purpose of the arrangement between this corporation and the stockholders thereof was to fix the price and control and limit the quantity of milk shipped. The purposes attempted to be accomplished through the corporation were illegal. To carry out such purposes it stands as the active business agent of the members who are stockholders, contracting with it to carry out the purposes of the organization. It is a combination in violation of the statute and in restraint of trade. Any purchaser of any commodity thus sold by such organization is not liable for the price thereof."1 § 83. Conspiracies under the Federal Anti-Trust Act. -Section first of the Act of Congress of July 2d, 1890, provides that "every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States or with foreign nations, is hereby declared to be illegal. Every person who shall make any such contract, or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court." In a recent case before the United States Circuit Court for the Middle District of Tennessee, it was held that an agreement between coal mining companies, operating chiefly in one State, and dealers in coal in a city in another State, creating a coal exchange to advance the interests of the coal business, to treat all parties to the business in a fair and equitable manner, and to establish the price of coal, and change the same from time to 1 Ford v. Chicago Milk Shippers Association, 155 Ill. 166, 179; s. c., 39 N. E. Rep. 651. time, by which it was agreed that the price of the coal at the mines should be 44 cents, the freight being 4 cents, and the margin of the dealer should be 44 cents, making the price to the consumer 13 cents, and that whenever the price of the coal is advanced beyond an advance in freights, onehalf the advance shall go to the mine owner and the other half to the dealer, and a penalty was provided by fine of any member selling coal at a less price than the price fixed by the exchange, and by which it was forbidden for owners or operators of mines to sell coal to any person other than members of the organization, and for dealers to purchase of miners who were not members, but exempting coal used for manufacturing and steamboat purposes from the prices prescribed until all the mines tributary to that market should come into the exchange, or until the exchange could control the prices of coal used by manufacturers, is within the language of the Federal anti-trust act declaring "every contract or combination in the form of a trust or otherwise, or conspiracy in restraint of trade or commerce among the several States," and also the monopolizing or combination with another to monopolize, trade or commerce among the several States, a misdemeanor.1 1 United States v. Jellico Mountain Coal & Coke Co., 46 Fed. Rep. 432. "These provisions, so far as this combination could do so, fixed the lowest price of coal to consumers in and near Nashville at thirteen cents per bushel, and prevented coal being sold there at a cheaper rate, no matter how much less it might cost in an open and unobstructed market. Nor is this all. The exchange ordains that 'owners or operators of mines shall not sell or ship coal to any firm, person or corporation in Nashville or West Nashville or East Nashville, who are not members of this exchange.' The coal trade is confined, so far as the market supply is concerned, to transactions be tween the miner and dealer, the prices are fixed by them, and the miner and dealer only are eligible to membership. The miners of the concern cannot sell to any dealer in or near Nashville who is not a party to the agreement, nor can such dealer purchase coal of any miner anywhere who is not a member of the body. The operations of both are confined within the membership. So far as Nashville is concerned, they cannot go to cheaper or more favorable markets, or deal with those who would give more favorable terms. The restraint is positive and undeniable. Moreover, in the first section of the by-laws of the exchange it is asserted that 'all coal used for § 84. Combination to Prevent Competition at a Judicial Sale.—Bidding at a judicial sale is not a legal obligation. All persons are free to attend judicial sales, or to refrain from attending, and where they attend they may bid, or refrain from bidding. But an agreement between two or more persons, who are in attendance, to refrain from bidding against each other in order to secure the property offered at a price below that which it would otherwise bring, is an offense, and the scheme may be so devised and executed as to be a criminal conspiracy. In an English case, it was held that if brokers agree together before a sale by auction that only one of them shall bid for each article sold, and that all articles thus bought by any of them shall be sold again among themselves at a fair price, and the difference between the auction price and the fair price divided among them; this is a conspiracy for which they are indictable.1 The doctrine, as here stated, is upheld by the American courts. In a leading case in New York, A and B, having execution against C, of which A's execution was the older lien, and C being indebted to D, it was agreed between A manufacturing and steamboat purposes shall be exempt from prices made by this exchange until all mines tributary to this market shall become members of the exchange, or until the exchange can control prices to govern coal used by manufacturers.' This clearly indicates the purpose of the association to be to control the price of coal in the Nashville market used in manufacturing and in steamboats whenever it could, that the mines of coal tributary to Nashville were all expected to become members of the exchange, whereupon the prices of coal could be fixed absolutely, and the necessary inference from this declaration and the entire organic structure of the body is that it felt strong enough already to regulate and establish the prices of domestic coal in that market, to a large extent, at least, and that this exchange might now monopolize the business of dealing in domestic coal in the Nashville market, and in the future monopolize by and confine to its membership the entire trade in coal at that point. It seems to me that the purposes and intentions of the association could hardly have been more successfully framed to fall within the provisions of the Act of July 2, 1890, had the object been to organize a combination, the business of which should subject it to the penalties of that statute and that there is no need of authorities to sustain such view of the case. Regarding the act as constitutional, I see no way for the defendants to escape its condemnation." Ibid., 436. Levi v. Levi, 6 Car. & P. 239. and D, that A should pay D $225, that, at the sale under execution, A should bid off the personal property of C to the amount of his execution, and that D should bid off the real property of C, to the amount of B's execution, should dispose of the same, and after satisfying his own demands against C should refund A the said sum of $225. A and D at the sale bid off the property of C, in conformity to the agreement, and D disposed of the real estate, and after satisfying his own demands against C there was a sufficient surplus to repay A, and A brought his action to recover the money. It was held that although there was a sufficient. consideration to support D's promise, yet the agreement itself was void, being contrary to public policy, as it was an agreement tending to prevent competition at a sale under execution, and thus injurious to the original debtor.1 1 Thompson v. Davies, 13 Johns. 112. See also Cocks v. Izard, 7 Wall. 559; Webster v. Dennison, 25 Vt. 493; Taylor v. Wait, 54 Vt. 469; Gardner v. Morse, 25 Me. 140; Curtis v. Aspinwall, 114 Mass. 187; Brisbane v. Adams, 3 N. Y. 129; People v. Stephens, 71 N. Y. 527; Dick v. Cooper, 24 Pa. St. 217; Walter v. Gernant, 13 Pa. St. 515; Brotherline v. Swires, 48 Pa. St. 68; Jenkins v. Frink, 30 Cal. 586; Gilbert v. Carter, 10 Ind. 16; Lloyd v. Malone, 23 Ill. 43; Rives v. Lawrence, 41 Ga. 283; Wagner v. Phillips, 51 Mo. 117; Turner v. Adams, 46 Mo. 95; Durfee v. Moran, 57 Mo. 374; Miller v. Baynard, 2 Houst. 559; Smith v. Ullman, 58 Md. 183; s. c., 42 Am. Rep. 329; Maffet v. Ijams, 103 Pa. St. 266. "The whole purpose of the statute is to encourage open, fair competition between responsible bidders, and any secret combination, call it partnership or anything else, the effect of which is to abate honest rivalry or prevent fair competition, is to be condemned as viola In tive of public policy and void. * * The purpose, tendency and necessary effect of such a contract was to stifle fair, open, actual competition, and to perpetrate a fraud upon the public officers. If, in letting a contract, such as this, parties without knowledge of the bids of each other submit their bids as the law requires, and afterwards enter into a partnership for the construction of the work with the knowledge of the officers letting the same, a question of a different character is presented. Such a transaction bears some similitude to the contract which was upheld in Breslin v. Brown, 24 Ohio St. 565; s. c., 15 Am. Rep. 627, a case which, on account of the liberal the opinion in this case, the court, by Mr. Justice Spencer, said: "It has been urged that the plaintiff was not bound to bid on the second execution, and was, therefore, at liberty to enter into this agreement. That is not the test of view taken of the contract there involved, is not universally endorsed. That case, however, affords no aid to the appellant here." Hunter v. Pfeiffer, 108 Ind. 197, 200. Where evidence shows that by the acts, connivance and representations of a purchaser, bidders were kept away from the sale of certain land; that competition was repressed when the sale took place, and that except for these practices the land would have brought a price greatly in excess of that actually realized, the sale will be set aside. Wagner v. Phillips, 51 Mo. 117. An agreement between two or more persons that one shall bid for the benefit of all upon property about to be sold at public auction, which they desire to purchase together, either because they propose to hold it together, or afterwards to divide it into such parts as they wish individually to hold, neither desiring the whole, or for any similar honest or reasonable purpose, is legal in its character, and will be enforced; but such agreement, if made for the purpose of preventing competition, and reducing the price of the property to be sold below its fair value, is against public policy and in fraud of the just rights of the party offering it, and therefore illegal." Gibbs v. Smith, 115 Mass. 592, 593. See also Phippen v. Stickney, 3 Met. 384, 387; Fuller v. Dame, 18 Pick. 472; Rice v. Wood, 113 Mass. 133. "There is nothing either in law or morals to prevent parties from uniting together in good faith to purchase * property, whether it is offered at public auction, or, as in the present case, advertised for sale, and bids from purchasers are invited. In Sewell v. Jones, 1 W. & S. 129, where there was a purchase of property at sheriff's sale by several l'enors who united therein, the bid being made by one of their number, and the sale was impeached as for that reason fraudulent and against public policy, Chief Justice Gibson said: It is not to be doubted that lien creditors, as well as others, may purchase jointly at sheriff's sale, if all be open and fair; a combination of interests for that purpose is not necessarily corrupt, and if it be forbidden, it must be by some principle of public policy. It is, as we have said, the end to be accomplished which makes such a combination lawful or otherwise. If it be to depress the price of the property by artifice, the purchase would be void; if it be to raise the means of payment by contribution, or to divide the property for the accommodation of the purchasers, it will be valid.' In Piatt v. Oliver, 3 McLean C. C. 27, it was said by Judge McLean: To hold that individuals may not associate together for the purpose of purchasing lands of the United States at a public sale, would be a novel doctrine, and contrary to what has been generally practiced by purchasers, and that under the sanction of the government.'" Smith v. Ullman, 58 Md. 183; s. c., 42 Am. Rep. 329, 331. "It is true, a con |