point a general agent at Watkins, New York; the coal mined to be delivered through him, each corporation to deliver its proportion at its own cost in the different markets at such time and to such persons as the committee might direct; the committee to adjust the prices, rates of freight, etc., enter into agreements with anthracite companies; the five companies might sell their coal themselves only to the extent of their proportion and at prices adjusted by the committee; the agent to suspend shipments by either beyond their proportion; frequent detailed reports to be made by companies, and settlements monthly by the committee, prices to be averaged and payments made to those in arrears by those in excess, neither to sell coal otherwise than as agreed upon, and the regulations of the committee to be carried out faithfully. A statute of New York makes it a misdemeanor for "persons to conspire to commit any act injurious to trade or commerce." It was held that their agreement was in contravention of the statute, and also against public policy, and, therefore, illegal and void.1 1 Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. St. 173. "The referee found, as his conclusion upon the whole case, that the contract was void by the statute, and void at common law, as against public policy. The restraint of the contract upon trade and its injury to the public is thus clearly set forth by the referee: "These corporations (he says) represented almost the entire body of bituminous coal in the northern part of the State. By combination between themselves they had the power to control the entire market in that district. And they did control it by a contract not to ship and sell coal otherwise than as therein provided. And in order to destroy competition they provided for an arrangement with dealers and shippers of anthracite coal. They were thereby prohib ited from selling under prices to In the opinion in this case, Mr. Justice Agnew said: "There is a certain freedom which must be allowed to every one in the management of his own affairs. Where competition is left free, individual error or folly will generally find a correction in the conduct of others. But here is a combination of all the companies operating in the Blossburgh and Barclay mining regions, and controlling their entire productions. They have combined together to govern the supply and the price of coal in all the markets from the Hudson to the Mississippi rivers, and from Pennsylvania to the lakes. This combination has a power in its confederated form which no individual action can confer. The public interest must succumb to it, for it has left no competition free to correct its baleful influence. When the supply of coal is suspended, the demand for it becomes importunate, and prices must rise; or, if the supply goes forward, the price fixed by the confederates must accompany it. The domestic hearth, the furnaces of the iron master and the fires of the manufacturer all feel the restraint, while many dependent hands are paralyzed and hungry mouths are stinted. The influence of a lack of supply, or of a rise in the price of an article of such prime necessity, cannot be measured. It permeates the entire mass of community, and leaves few of its members untouched by its withering blight. Such a combination is more than a contract; it is an offense. 'I take it,' said Gibson, Justice, 'a combination is criminal whenever the act to be done has a necessary tendency to prejudice the public, or to oppose individuals, by unjustly subjecting them to the power of the confederates, and giving effect to the purpose of the latter, whether of extortion or of mischief."1 In all such combinations where the purpose is injurious or unlawful, the gist of the offense is the conspiracy. Men can often do by the combination of many what, severally, no one could accomplish, and even what when done by one would be innocent."1 § 171. The Pooling of Stocks.-The putting of stocks into a pool or common fund is not, necessarily, illegal. If the object is not objectionable, a reasonable regulation in regard to the manner of selling corporate stocks, in order to prevent a sacrifice of the interests of the parties concerned, is not in contravention of public policy as in restraint of trade. In the recent and leading case of Williams v. Montgomery, before the New York Court of Appeals, the court said: "After careful study of the agreement in question, we think that it was neither a violation of the statute against accumulations nor a restraint upon trade. What are the facts? Four promoters of a corporation, who owned ninetynine one-hundredths of its capital stock, as tenants in common, agreed, in writing, to partition their holdings, after first placing in the treasury one-fifth of all the stock, to be sold in order to provide working capital for the company. As the amount of the capital stock was large and they did not wish to glut the market by the sale of treasury stock in competition with individual stock, they provided for the deposit of the latter with a trust company, under the agreement that they would not withdraw the same for six months, except by mutual consent, unless enough treasury stock should be sooner sold to realize the sum of $30,000, in which event any one could withdraw his certificate on five days' notice to the others. No trust was created. The title was not vested in a trustee, unable to sell, with like inability on the part of the beneficiary. No restriction was placed on the power of any stockholder to sell, but he could not deliver the certificates for six months, except in either of the contingencies named. There was no suspension of absolute ownership, because the statute expressly declares that the 'power of alienation is suspended when Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. St. 173, 186. 3 there are no persons in being by whom an absolute fee in possession can be conveyed."1 While this applies, primarily, to real estate, by a subsequent chapter it is made applicable to personal property also.2 The test of alienability of real or personal property is that there are persons in being who can give a perfect title. Where there are living parties who have, unitedly, the entire right of ownership, the statute has no application. The ownership is absolute whether the power to sell resides in one individual or in general. If there is a present right to dispose of the entire interest, even if its exercise depends upon the consent of many persons, there is no unlawful suspension of the power of alienation. The ownership, although divided, continues absolute. The agreement in question, therefore, which expressly reserved the right to sell by mutual consent, did not violate the statute, because there was no time when an absolute title to the stock or any part of it could not have been transferred by the joint action of the four parties to the contract. Nor was the agreement opposed to public policy, for a reasonable regulation, as to the mode of selling the stock, so as to prevent the sacrifice thereof, was not a restraint upon trade. As an incident to the contract, making partition of the shares, it was competent for the parties to agree that the stock donated to the corporation, in which they had a common interest, should be first offered for sale. This was no restraint upon the business freedom of the parties, but a promotion of the general interest, by temporarily withholding from the market shares owned by individuals, in order to afford a reasonable opportunity to sell shares, indirectly owned by all. The protection of the interests of all concerned by preventing the market from suddenly becoming overcrowded and ruinously depressed, was a reasonable, just and honest purpose, which the law does not condemn. There was no evil tendency in the 11 Rev. Stat. 723, § 14. 2 21 Rev. Stat. 773, § 2. 3 Genet v. Hunt, 113 N. Y. 158, 172; Nellis v. Nellis, 99 N. Y. 505, 516; Robert v. Corning, 89 N. Y. 225, 235; Gott v. Cook, 7 Paige, 521; affirmed 24 Wend. 641; Bolles on Suspension, 2. 4 Norris v. Beyea, 13 N. Y. 273, 289. arrangement, as it simply prevented a course of action that would have brought loss both to the common and to the personal interests.1 1 Williams v. Montgomery, 148 N. Y. 519, 525. See also Hodge v. Sloan, 107 N. Y. 244. "There was nothing in the written contract between the parties which required the plaintiff to transfer the control and management of the corporation to Brown and Seligman; but I will assume that it was the understanding and a part of the scheme that he should do so. Brown and Seligman were attempting to procure the control of the corporation and of its franchises for a legitimate purpose. There is no reason to suppose that they meant to perpetrate any fraud on the stockholders. They were dealing with a person who held a majority of the stock and who, in virtue thereof, had the right and the power to control the corporation within the limits of its chartered powers. He had the right to sell out all his stock and interest in the corporations, and in doing so he perpetrated no wrong upon any one, and when he ceased to have any interest in the corporation, it was certainly legitimate and right that he should cease to control it. It is the general rule sanctioned by the policy of the law, that those who have the largest interest in corporations may control them, as they have the greatest interest that they shall be well managed." Barnes v. Brown, 80 N. Y. 527, 536. The officers of a corporation having taken means to obtain from the stockholders a deposit of their stock, together with powers of attorney, in the hands of such officers or their agents in order to enable them, among other things, to vote on the stock at a stockholders' meeting, held, that one stockholder is not entitled to have the officers restrained from voting on the stock of others, upon the theory that the transaction creates a trust for the corporation, unless corporate funds were used in doing what was done. Woodruff v. Dubuque, 30 Fed. Rep. 91. In an action against several persons upon an account arising from stock transactions, claimed by plaintiff to have been joint transactions on the part of the defendants, but claimed by one of the defendants to have been several, held, that evidence that said defendant had a private account running at the same time was competent as a circumstance tending to show that the other account was joint and not several. Quincey v. White, 63 N. Y. 370. In the course of the opinion, at page 383, Church, Ch. J., says: "It is not per se unlawful for three persons to unite either in a general business, or upon a special venture of dealing in stocks or a particular stock, on speculation. This is not unlawful as against public policy. It is unnecessary to consider whether a combination might not be made to produce results which would not be sustained, nor now to define the nature of such a combination, nor the means which might be deemed unlawful in carrying it out." "Various devices have been resorted to for the purpose of so tying up the stock that no one of the parties to the 'pool' or combination can break the agreement. 'Irrevocable' proxies to vote the stock have been given |