in order to fulfil his contract of sale (175 U. S. 246; 20 Supm. 109). Here U. S. v. E. C. Knight Co.; 156 U. S. 1; 15 Supm. 249; 39 L. Ed. 325 was distinguished (175 U. S. 240; 20 Supm. 107), as involving "no combination or agreement in terms regarding the future disposition of the manufactured article." See observations in court below (85 Fed. 295; 29 C. C. A. 165; 46 L. R. A. 138). An action under § 7 against members of the combination here held illegal was held maintainable in City of Atlanta v. Chattanooga Foundry, etc., Co., 127 Fed. 23; 61 C. C. A. 387; 64 L. R. A. 721 (6th C., 1903). See previous decision in 101 Fed. 900 (C. C. Tenn., 1900).

So in Montague v. Lowry, 193 U. S. 38; 24 Supm. 307; 48 L. Ed. 608 (1904); affirming 115 Fed. 27; 52 C. C. A. 621; 63 L. R. A. 58 (9th C., 1902), which affirmed Lowry v. Tile, Mantel & Grate Assoc., 106 Fed. 38 (C. C. Cal., 1900); see previous decision in 98 Fed. 817 (1899), it was held to apply to the rules of an association composed not only of local dealers, but of manufacturers in different States, such dealers being forbidden to purchase from a manufacturer not a member of the association, or to sell to one not a member for less than certain prices, the manufacturer being likewise forbidden to sell to one not a member. Here was overruled the objection that the sale of unset tiles was so small in San Francisco as to be a negligible quantity, not amounting to 1 per cent. of the business of the dealers in tiles in

that city. The court said: "The amount of trade in the commodity is not very material, but even though such dealing heretofore has been small, it would probably largely increase when those who formerly purchased tiles from the manufacturers are shut out by reason of the association and their nonmembership therein, from purchasing their tiles from those manufacturers and are compelled to purchase them from the San Francisco dealers. Either the extent of the trade in unset tiles would increase between the members of the association and outsiders, or else the latter would have to go out of business, because unable to longer compete with their rivals who were members." So in U. S. v. Coal Dealers' Assoc., 85 Fed. 252 (C. C. Cal., 1898), the act was held to apply to an agreement between a combination of dealers importing coal from other States and foreign countries, and an association of retail dealers, whereby the business of dealing was regulated and the retail price fixed. Here was applied U. S. v. Jellico Mountain Coal, etc., Co., 46 Fed. 432; 12 L. R. A. 753 (C. C. Tenn., 1891) as "a case entirely in point.' So the act was held to apply in U. S. v. Chesapeake & O. Fuel Co., 105 Fed. 93 (C. C. Ohio 1900); affirmed as Chesapeake & O. Fuel Co. v. U. S., 115 Fed. 610; 53 C. C. A. 256 (6th C., 1902), to an agreement among producers of coal and coke for delivery to a common agent for shipment to markets in other States, the sale of such coal and coke to be exclusively

by such agent, it (the agent) being prohibited from handling competing coal and coke, and competition among the producers that were parties to the agreement being prohibited; in Gibbs v. McNeeley, 118 Fed. 120; 55 C. C. A. 70; 60 L. R. A. 152 (9th C., 1902); reversing 107 Fed. 210 (C. C. Wash., 1901); previous decision in 102 Fed. 594 (C. C. Wash., 1900), to an agreement among manufacturers all residents of the State to "arbitrarily increase the price and diminish the total output," the product in question, though "made only in that State," being "principally bought and used in other States," the agreement containing, however, "no express provision for the transaction of business across State lines," and not by its terms referring to the sale or delivery of the product elsewhere than in the State; in BobbsMerrill Co. v. Straus, 139 Fed. 155, 176, 177, 189 (C. C. N. Y., 1905); Mines v. Scribner, 147 Fed. 927 (C. C. N. Y., 1906), to an agreement among book publishers not to sell to those "who cut prices"; in Jayne v. Loder, 149 Fed. 21; 78 C. C. A. 653; 7 L. R. A. N. S. 984 (3d C., 1906); reversing Loder v. Jayne, 142 Fed. 1010 (C. C. Pa., 1906), to like agreement among those variously engaged as wholesale or retail druggists or manufacturers of patent medicines and pharmaceutical supplies; in Continental Wall Paper Co. v. Lewis Voight & Sons Co., 148 Fed. 939; 78 C. C. A. 567 (6th C., 1906), to an agreement among manufacturers co-operating through a corporation organized by them for

the single purpose of selling their product; in U. S. v. MacAndrews, etc., Co., 149 Fed. 823 (C. C. N. Y., 1906) to a combination among producers of licorice paste, it being held sufficient to instance the allotment of certain customers to certain producers by a secret agreement that only the assigned producer would or could supply the needs of the customer. It was said that the producers "have seen to it that their product was followed from factory to consumer, until with their system working perfectly, they not only controlled the source of supply and regulated production, but regulated the consumption of every person in the land who required what they made"; in McConnell v. Camors-McConnell Co., 152 Fed. 321; 81 C. C. A. 429 (5th C., 1907), where Continental Wall Paper Co. v. Lewis Voight & Sons Co. was followed; see subsequent decision in Camors-McConnell Co. v. McConnell, 163 Fed. 638 (C. C. Ala., 1908); in Wheeler-Stenzel Co. V. National Window Glass Jobbers' Assoc., 152 Fed. 864; 81 C. C. A. 658; 10 L. R. A. N. S. 972 (3d C., 1907), to an agreement among wholesalers and jobbers for arbitrarily fixing price and determining the quantity to be purchased by such wholesal ers; in Bigelow v. Calumet & Hecla Mining Co., 155 Fed. 869 (C. C. Mich., 1907), to an attempt of a corporation to secure control of another by purchase of its stock as part of a general plan "to secure control of practically the entire output of lake copper"; in U. S. Tobacco Co. v. American Tobacco Co., 163

Fed. 701 (C. C. N. Y., 1908), to a contract among manufacturers to increase prices and "relating to sales of the product in different States and necessarily to the delivery thereof"; in U. S. v. American Tobacco Co., 164 Fed. 700 (C. C. N. Y., 1908), to a combination among manufacturers of and dealers in tobacco products, it also including producers of materials and supplies. The conditions involved were as thus stated (p. 712): "Leaf tobacco is purchased by the defendants' agents in tobacco markets, or directly from the grower in many different States, and is shipped by means of common carriers to factories or warehouses in other States. Licorice root for making licorice paste, necessary in producing certain kinds of tobacco, is purchased by a subsidiary corporation in foreign countries and is shipped to factories in this country. The paste, when manufactured, is sold to other of the defendants and is shipped to factories in different States. A subsidiary corporation manufactures tin foil and sells and ships it to the different factories. Another does the same thing with boxes, and another with cotton bags. Still another acts strictly as a purchasing corporation, and buys supplies in many markets, and sells and delivers them to the factories, warehouses and offices throughout the country. The record shows constant intercommunication between the members of the combination in different States and constant shipments across State lines from one member to another as

vendor and vendee. The tobacco products manufactured by the defendants are largely sold by traveling salesmen, who solicit orders which, in most instances, are filled by shipping the goods ordered, by means of common carriers, from factories or warehouses located in States other than those in which the orders are taken. A limited number of jobbers in different States are also controlleu, as well as an important retailer operating in different States. The business of the defendants covers the whole of the United States and the disposition of their products is effected under the supervision of an office of central authority by constant interstate shipments of the different commodities from factory, warehouse, or branch, to jobber, retailer or consumer." It was said (p. 705) to make no difference that there were individual members not engaged in interstate commerce. See, however (p. 709), as to a corporation (the United Cigar Stores Co.) extensively engaged in retailing cigars and tobacco, "the fact that a corporation, assuming it to have combined with others to restrain trade, invests its money in the business of another corporation (the United Cigar Stores Co.), engaged in selling its goods and those of others fairly to the public," being held insufficient to show a violation of the act by the latter.

See Park v. National Wholesale Druggists' Assoc., 175 N. Y. 1; 67 N. E. 136; 62 L. R. A. 632; 96 Am. St. Rep. 578 (1903), questioned and

With regard to the effect of mere refusal to deal, it seems difficult to reconcile Whitwell v. Continental Tobacco Co., 125 Fed. 454; 60 C. C. A. 290; 64 L. R. A. 689 (8th C., 1903), with Ellis v. Inman, 131 Fed. 182; 65 C. C. A. 488 (9th C., 1904); reversing 124 Fed. 956 (C. C. Oreg., 1903). In Ellis v. Inman, it was denied, but in Whitwell v. Continental Tobacco Co., asserted that, in determining whether the act applies, it is relevant to inquire whether "the main purpose and chief effect" is "to foster the trade and to increase the business of those engaged in the transaction." In Whitwell v. Continental Tobacco Co., the act was held not to apply to the refusal of a manufacturer to sell at prices that would enable the plaintiff to sell at a profit, unless he refrained from buying, selling or handling the products of competitors of such manufacturer. So held, though concededly "the practice of the defendants was not only an attempt, but a successful attempt, to monopolize a part of commerce." See Commonwealth Strauss, 191 Mass. 545; 78 N. E. 136; 11 L. i. A. N. S. 968 (1906), as to application of act to prohibition of Mass. R. L. (1902), c. 56, § 1, against making it a condition of a sale, that the purchaser shall not sell or deal in goods of any other person. So in Phillips v. Iola Portland Cement Co., 125 Fed. 593; 61 C. C. A. 19 (8th C., 1903), the

V.

47 See §§ 1, 2, 3 of act. See Re Greene, 52 Fed. 104, 111 (C. C.

47

act was held not to apply to the agreement of the purchaser of a large quantity of cement "not to sell said cement, ship same, or allow same to be shipped" outside of a State.

On the other hand, in Ellis v. Inman, 131 Fed. 182; 65 C. C. A. 488 (9th C., 1904); reversing 124 Fed. 956 (C. C. Oreg., 1903), the act was held to apply to a combination to refuse to sell to those purchasing from outside the State, it being held no answer that dealers outside the State were unable to furnish the necessary supply, or that a combination to reduce prices would have had the same effect on interstate trade as did the combination in question. This seems to be one of the instances already alluded to, of "mere restraints of trade or commerce" that are outside of the narrower class of "restrictions upon competition." So far as appears, the members of the combination were not engaged in trade or commerce within the scope of the act, and the restriction upon competition, if any, was solely as to manufacture or sale within the State.

As to agreements by which purchasers were to receive rebates provided they purchased exclusively from the seller, see Re Corning, 51 Fed. 205, 211 (D. C. Ohio, 1892); Re Terrell, Id. 213 (C. C. N. Y., 1892); Re Greene, 52 Id. 104, 117 (C. C. Ohio, 1892).

Ohio, 1892); U. S. v. Addyston Pipe & Steel Co., 85 Fed. 271, 279;