made as to the original validity of the contract. The court said in Central Trust Co. v. Ohio Central Ry. Co.: "The contract itself was a customary one among railroads, and the receiver believed it to be reasonable and fair, and that it was expedient to continue it in force. Good faith requires that the proceeds arising from its operation, and which, by its terms, belong to the petitioner, should be paid over to it." Compare, as to right to share in profits of such a contract, Cutting v. Florida Ry. & Nav. Co., 48 Fed. 508 (C. C. Fla., 1891). The doctrine stated in the text is sometimes declared by statute. C. XX. On the same general ground the right to maintain a proceeding to enforce the provisions of an agreement, was, under varying conditions, denied in the following cases: In Unckles v. Colgate, 148 N. Y. 529; 43 N. E. 59 (1896), the holder of a certificate issued by a trust, was not allowed to maintain an action for winding up the affairs of the trust, an accounting by the trustees under the trust agreement, the appointment of a receiver, and the distribution through the receiver of all moneys, and of the proceeds of property, that came into the defendant's hands. Here the plaintiff had purchased the certificates subsequently to the formation of the trust, and it was intimated that his position was less favorable than that of one a stockholder and party to the original agreement. The decision was based on the ground that, having voluntarily made himself a party to a scheme under an executed agree

ment, which he alleged to be illegal, he could not claim the benefit of such illegal agreement. In Bailey v. Master Plumbers, 103 Tenn. 99; 52 S. W. 853; 46 L. R. A. 561 (1899), the agreement held nonenforcible was contained in the bylaws of an association. In Greer v. Payne, 4 Kan. App. 153; 46 Pac. 190 (1896), a suit by a member of an unincorporated voluntary association of live-stock dealers, to enjoin the enforcement against him of penalties imposed by the rules of the association, was held not maintainable. This on the ground that the contract of membership was an unlawful combination, under the Kansas statute, and no rights could grow out of it, even membership therein being a misdemeanor. So held, notwithstanding the contention that the granting of the relief would be a virtual wiping out of the illegal by-laws of the association, leaving the exchange, with its members, to conduct their business under valid and lawful rules and regulations. In Greer v. Stoller, 77 Fed. 1 (C. C. Mo., 1896), the same result was reached on the same state of facts, but on a somewhat different ground, namely, that the plaintiff could not claim the rights of membership, without submitting to the rules which, on becoming a member, he had agreed to observe, the validity of the contract of membership not being involved. In Milwaukee Masons & Builders' Assoc. v. Niezerowski, 95 Wis. 129; 70 N. W. 166; 37 L. R. A. 127; 60 Am. St. Rep. 97 (1897), an action was held not maintainable on a note given by a member of an as

sociation of mason contractors, the only consideration therefor being the benefits and advantages (such as rebates on material) which he was entitled to receive as a member, as a result of conducting its business, which was illegal, as preventing competition. In American Handle Co. v. Standard Handle Co., 59 S. W. 709, 722 (Tenn. Ch. App., 1900), admitting the right of an insolvent as "receiver of its own assets" to enforce such an agreement for the benefit of "honest creditors," such enforcement was not allowed in the absence of proof of the existence of any creditor other than one whose claims were based wholly upon the illegal agreement. Compare Pittsburg Carbon Co. v. McMillin (see § 174). In American Biscuit & Manuf. Co. v. Klotz, 44 Fed. 721 (C. C. La., 1891), the illegality of a trust combination was held ground for refusing its application for the appointment of a receiver, in a proceeding against a constituent concern for an accounting. Opposed to the authorities generally seems to be National Wall Paper Co. v. Hobbs, 90 Hun, 288; 35 N. Y. Suppl. 932 (1895), holding that the defendant could not, while retaining the fruits of the contract, set up that it was an unlawful conspiracy to raise the price of goods and lower wages. This decision was followed in Noble v. McGurk, 16 Misc. 461; 39 N. Y. Suppl. 921 (Supm. Ct., Sp. T., 1896), a case of an alleged agreement not to bid at a partition sale.

If, as between the parties, an agreement in restriction upon competition, is non-enforcible, it seems to

follow that its existence furnishes no obstacle to one of such parties entering into an agreement with a third party in conflict with the provisions of the original agreement. Thus, in Cleveland, Columbus, Cincinnati, etc., Ry. Co. v. Closter, 126 Ind. 348, 359; 26 N. E. 159, 162; 9 L. R. A. 754, 760; 22 Am. St. Rep. 593, 602 (1890), a combination among carriers, illegal as in restriction upon competition, was held to create no legal obstacle to a contract between a shipper, and one of the parties to the combination, providing for a rate lower than that provided by the agreement among the carriers.

It is commonly expressly provided in the anti-trust acts that a contract in violation of the act is void or non-enforcible. As to recovery for goods sold to be used for purposes of illegal combinations, see under Tex. (§ 232).

15 Thus, in American Steel & Wire Co. v. Wire Drawers', etc., Unions, 90 Fed. 608 (C. C. Ohio, 1898), the remedy by injunction against striking employees was held not impaired by the alleged circumstance that the employer was a "trust." See also Goldfield Consol. Mines Co. v. Goldfield Miners' Union, 159 Fed. 500 (C. C. Nev., 1908). So in Kinner v. Lake Shore & M. S. Ry. Co., 69 Ohio St. 339; 69 N. E. 614 (1904), of an injunction allowed to a railroad corporation against the wrongful use of tickets, against the objection that the plaintiff was party to an illegal combination. So in Liverpool & London & Globe Ins. Co. v. Clunie, 88 Fed. 160, 170 (C. C. Cal., 1898), of a suit by a num

ber of insurance companies to restrain illegal action by a State commissioner of insurance, held maintainable against the objection that the complainants were members of a combination illegal as creating restrictions upon competition in the business of insurance. The remedy for infringement of a patent, is not impaired by the circumstance that the holder of the patent is a party to an agreement in restriction upon competition in the business to which the patent relates. Strait v. National Harrow Co., 51 Fed. 819 (C. C. N. Y., 1892; injunction to restrain such a suit denied); SawyerMan Electric Co. v. Edison Electric Light Co., 53 Fed. 592, 598; 3 C. C. A. 605, 610 (2d C., 1892). And so of remedy for infringement of trade mark. Independent Baking Powder Co. v. Boorman, 130 Fed. 726 (C. C. N. J., 1904). In California Cured Fruit Assoc. v. Stelling, 141 Cal. 713; 75 Pac. 320 (1904), an action by a buyer against sellers for the recovery of possession of articles that had been delivered to the former under the contract of sale, was held maintainable against the objection that such contract was illegal as in restraint of trade.

16 In U. S. Vinegar Co. v. Schlegel, 143 N. Y. 537; 38 N. E. 729 (1894), in an action by a foreign corporation to enforce liability on a subscription to stock, it was held no defense that the corporation had entered upon projects illegal as in

restriction upon competition, the objects as stated in the certificate of incorporation being legal, and there being no evidence of any corporate acts pointing to any illegal purpose in the formation of the corporation. And held no defense that the promoters of the corporation deceived the authorities of the State where was formed, as to their real purpose in forming it. So held where the corporation was insolvent. To similar effect, U. S. Vinegar Co. v. Foehrenbach, 148 N. Y. 58; 42 N. E. 403 (1895), an action by the same plaintiff. See also Globe Sewer Pipe Co. v. Otis, 22 N. Y. Suppl. 411 (Supm. Ct., Gen. T., 1893). On the same principle in Dennehy v. McNulta, 86 Fed. 825; 30 C. C. A. 422; 41 L. R. A. 609 (7th C., 1898), was denied the right to recover back money paid to an illegal combination. But such a defense has in some cases been made available by statute. See c. XX.

The doctrine stated in the text seems to have been overlooked in Delaware, L. & W. R. Co. v. Frank, 110 Fed. 689 (C. C. N. Y., 1901), where, in a suit by a railroad corporation to enjoin ticket brokers from inducing purchasers of tickets to use them in a manner contrary to the special arrangements under which such tickets were purchased, it was held a defense that the corporation was party to an agreement to fix rates of transportation, such agreement being illegal as in restriction upon competition, and the tick

et having been issued in pursuance of such agreement. To the contrary under like conditions seems Pennsylvania Co. v. Bay, 138 Fed. 203 (C. C. Ill., 1905).

For examples of provisions held enforceable as separable from agreements in restriction upon competition, see Hartford & New Haven R. R. Co. v. N. Y. & New Haven R. R. Co., 3 Robt. (N. Y.) 411 (1865); Western Union Tel. Co. v. Burlington & S. W. Ry. Co., 11 Fed. 1 (C. C. Iowa, 1882). See Hoffman v. Brooks, 23 Am. Law Reg. (N. S.) 648 (Super. Ct. Cin., 1884); State v. New Orleans Warehouse Co., 109 La. 64; 33 So. 81 (1902); Matthews Glass Co. V. Burk, 162 Ind. 608; 70 N. E. 371 (1904). For a case where an accounting was allowed for money received as profits on an illegal cornering contract, see Wells v. McGeoch, 71 Wis. 196; 35 N. W. 769 (1888). In Sampson v. Shaw, 101 Mass. 145; 3 Am. Rep. 327 (1869), where the agreement between parties to a cornering agreement was, that one should apply the funds of the other already in his hands, so far as should be necessary for the payment of the latter's share of the expenses, the latter was held not precluded from recovering the unexpended balance of the fund, but not allowed to recover for what had actually been expended.

In Monongahela River Consolidated Coal & Coke Co. v. Jutte, 210 Pa. St. 288, 306; 59 Atl. 1088, 1095; 105 Am. St. Rep. 812 (1904), although an agreement by the seller of a business was sustained on com

18 Thus held no defense to a proceeding to enforce liability for serv

mon law grounds as not unreasonably in restraint of trade, it was held in violation of the Federal antitrust act. In Trenton Potteries Co. v. Oliphant, 58 N. J. Eq. 507, 522; 43 Atl. 723, 729; 46 L. R. A. 255, 262; 78 Am. St. Rep. 612 (1899), the existence of a combination among a number of manufacturers, illegal as in restriction upon competition, was held not to invalidate contracts by different members thereof for the sale of their plants, the court saying: "The public interest would be amply protected by invalidating the agreement of the association for the control of prices, and the disconnected agreement of sale would be enforced as other contracts." This decision was in Metcalf v. American School Furniture Co., 122 Fed. 115, 121 (C. C. N. Y., 1903), applied in refusing relief to a stockholder against the transfer by a corporation of its property to a corporation assumed to have been organized for the purpose of creating an illegal restriction upon competition, although the directors of the corporation so transferring "aided in the general undertaking to incorporate such company and to acquire by purchase the good will and assets generally of other concerns engaged in a similar industry." But this decision seems on this point opposed to the weight of authority. See § 172 and thereunder Monongahela River Consolidated Coal & Coke Co. v. Jutte, 210 Pa. St. 288; 59 Atl. 1088; 105 Am. St. Rep. 812 (1904).

17 National Distilling Co. v. Cream City Importing Co., 86 Wis. 352;

ices rendered by tugs, that the tugowners were parties to such an