prices, constituted an unfair method of competition. (U. S. Gold Leaf Manufacturers Association et al., 1 F. T. C. 173.) 2. Same. Entering into and carrying out a combination, conspiracy, understanding, or pool to keep and maintain fixed prices for such printing, by a number of concerns engaged in printing railway tariffs, schedules, and other printed matter, held, when carried out substantially as set forth, to constitute an unfair method of competition. (Blakely Printing Co. et al., 1 F. T. C. 277.) SOLE RIGHT TO VEND GIVES NO RIGHT TO "The sole right to vend granted by section 4952, Revised Statutes, does not secure to the owner of the copyright the right to qualify future sales by his vendee or to limit or restrict such future sales at a specified price, and a notice in the book that a sale at a different price will be treated as an infringement is ineffectual as against one not bound by a contract or licensed agreement." (Syllabus.) (BobbsMerrill Co. v. Straus et al. 210 U. S. 339.) AN AGREEMENT TO FIX PRICES VIOLATES THE ANTITRUST ACT. See the following cases: Swift v. U. S., 196 U. S. 375; The Standard Oil case, 221 Fed. 55, affirmed in 251 U. S. 417; Standard Sanitary Co. v. U. S., 226 U. S. 20; Montague v. Lowry, 193 U. S. 38; Addystone Pipe Co. v. U. S., 175 U. S. 211; Bobbs-Merrill Co. v. Straus, 139 Fed. 155, affirmed 147 Fed. 15, 210 U. S. 339; U. S. v. Whiting, 212 Fed. 466. CURRENT ARTICLES AND DISCUSSIONS. Price fixing restrictions in the sale of patented articles, 86 Central Law Journal 275, April, 1918. Fixing prices of commodities, 44 Chicago Legal News 175, January, 1912. Price fixing for certain hours in the day, 317 Harvard Law Review 1154, June, 1918. The blacklist and secondary boycott as an aid to price fixing, 31 Yale Law U. S. 1; U. S. v. U. S. Steel Corp., 223 | Journal 539, March, 1922. PRICE MAINTENANCE. [See also Price fixing; Refusal to sell; Resale prices.] 1. Combination to enhance and maintain prices. Combining on the part of certain corporations, partnerships, and individuals engaged in the manufacture and sale of American flags into a voluntary unincorporated association, of which another individual, not a flag manufacturer, was the chairman and principal organizer, for the object, in part, of engaging in a concerted movement to (1) enhance the prices of American flags, (2) to maintain such enhanced prices, and (3) to bring about a general uniformity therein, held to constitute an unfair method of competition. (Association of Flag Manufac turers of America et al., 1 F. T. C. 55.) 2. Same. Combining on the part of an unincorporated association engaged in the manufacture and sale of by far the greater portion of book-print paper manufactured, sold, and used in the United States, for the purpose of (1) enhancing the prices of book-print paper, (2) maintaining such prices, and (3) bringing about substantial uniformity in such prices, held to constitute an unfair method of competition. (Book Paper Manufactures Bureau of Statistics et al.,. 1 F. T. C. 38.) A COMBINATION TO FIX AND MAINTAIN PRICES HELD TO BE IN RESTRAINT OF TRADE AND UNLAWFUL. Continental Wall Paper Co. v. Voigt, 212 U. S. 227; Jayne et al. v. Loder, 149 Fed. 21. COMBINATION TO MAINTAIN PRICES WHEN IN RESTRAINT OF TRADE IS ILLEGAL. A combination and agreement to sell only to those who would maintain the retail price upon copyrighted books and not to sell books to anyone who would cut such prices, held to exceed any fair and legal means to protect trade and prices, to practically prohibit the parties thereto from selling to those it condemned, to affect commerce between the States, to be manifestly illegal under the Sherman Act, and not justified as to copyrighted books under any protection afforded by the copyright act. (Straus v. American Publishers' Association, 231 U. S. 222.) (See also Continental Wall Paper Co. v. Voigt, 212 U. S. 227; Mims v. Scribner, 147 Fed. 937.) * * * "A combination of a dominant portion of the dealers in fresh meat throughout the United States not to bid against or in conjunction with each other in order to regulate prices with intent to monopolize commerce among the States is an illegal combination within the meaning and prohibition of the act of July 2, 1890, 26 Stat. 209, and can be restrained and enjoined in action by the United States." (Syllabus.) (Swift & Co. v. U. S., 196 U. S. 375.) ILLEGAL WHEN NECESSITY OF PATENT PROTECTION IS TRANSCENDED. A trade agreement, involving the right of all parties thereto to use a certain patent, which transcends what is necessary to protect the use of the patent or the monopoly thereof as conferred by law, and controls the output and price of goods manufactured by all those using the patent, is illegal under the antitrust act. (Standard Sanitary Manufacturing Co. v. United States, 226 U. S. 20.) This case was distinguished from the following: Bement v. National Harrow Co., 186 U. S. 70; Henry v. A. B. Dick Co., 224 U. S. 1. NOT IN RESTRAINT OF TRADE WHERE KEEPING OF CONTRACT IS OPTIONAL. An arrangement whereby a company promised persons who purchased from its distributing agents that if, for the ensuing six months, they would purchase their distillery products exclusively from such agents, and would not resell the same at prices less than those fixed by the company, then, on being furnished with a certificate of compliance therewith, it would pay a certain rebate on the amount of such purchases, did not constitute a contract in restraint of tradewithin the meaning of section 1 of the Sherman Act, since the purchaser was not the conditions named; nor did such arin any way bound to the performance of rangement operate to "monopolize," or "as an attempt to monopolize," trade and commerce, within the meaning of section 2 of said act. (In re Green, 52 Fed. 105.) LEGALITY OF PRICE-FIXING AGREEMENTS ARE DETERMINED by whether the restraint placed on trade is mere regulatory and promotes competition or suppresses and destroys competition. (Board of Trade v. U. S., 246 U. S. 231.) CURRENT ARTICLES AND DISCUSSIONS. Price maintenance agreements, 136 Law Times, 476, March 7, 1914. Price maintenance at common law and under proposed legislation, 30 Harvard Law Review, 68, No. 1916. Price maintenance, 24 Case and Com-ment, 125-133, July, 1917, and 193-202, August, 1917; 2 California Law Review, 324, May, 1914. Predatory price cutting as unfair trade,、 27 Harvard Law Review, 139, December, 1913. Price maintenance and the Beechnut decision, 31 Yale Law Journal, 650, April, 1922. Business cooperation; the "Open competition plan," and the Sherman Antitrust Act, 31 Yale Law Journal, 643, April, 1922. PRICES. See Advertising falsely and misleadingly; Artificial market; Contracts; Misrepre- PRICES, FICTITIOUS. [See Advertising falsely and misleadingly; Misbranding; Misrepresentation.] PUFFING. [See Advertising falsely and misleadingly; Misrepresentation.] QUALITY OF GOODS. [See Advertising falsely and misleadingly.] REBATES. [See also Price discrimination; Tying or exclusive contracts or leases.] 2. For adhering to resale price.-Agreeing on the part of a firm υ. Cleveland Stone Co., p. 417.-Decrees "(e) From giving or offering to give to REFUSAL TO SELL. [See also Cutting off supplies; Resale prices.] I. By Brokers, 1. II. By Manufacturers, 2-3. I. BY BROKERS. 1. Cutting off supplies of irregular dealer.—An agreement and conspiracy on the part of certain brokers, because of coercion, persuasion, boycott, and threats of boycott on the part of certain jobbers, to refuse to sell to a corporation competing with the said jobbers and to compel such corporation to purchase its goods through jobbers at prices higher than those charged to such competitors and others engaged in a similar business, held, when carried out in the manner described, to constitute an unfair method of competition. (Western Sugar Refinery et al., 2 F. T. C. 151.) II. BY MANUFACTURERS. 2. Cutting off supplies of irregular dealer.--Agreeing and conspiring on the part of sugar refiners to refuse to sell sugar to a corporation competing with other jobbers, its customers, except at prices higher than those charged said competing jobbers and others in similar business, held, when carried out in the manner described, to constitute an unfair method of competition. (Western Sugar Refinery et al., 2 F. T. C. 151.) 3. Cutting off supplies of price cutters.--Refusal to sell, on the part of a manufacturer of razor blades, safety razors, etc., its products to those who resold the same below indicated prices, held, when carried out substantially as described, to constitute an unfair method of competition. (Auto Strop Safety Razor Co., 1 F. T. C. 418.) "REFUSAL TO SELL" AS A RIGHT IS NOT ABSOLUTE. It has frequently been urged that the right to refuse to sell is absolute, and yet this right has clearly been qualified both in common law and by statute. The Supreme Court has held in several cases that the concerted refusal of business relations may accomplish an undue restraint of trade even where no question of the creation of a monopoly is involved. The court in delivering its opinion in the case of Aikens v. Wisconsin, 195 U. S. 194, said: "No conduct has such an absolute privilege as to justify all possible schemes of which it may be a part. "The right to refuse to enter into contracts is more absolute or more sacred than the right to contract; the right to refuse to sell and the right to sell are both natural rights, but they can both be limited in the public interest." Mr. Justice Holmes, speaking for the court at a later date, says: "The word 'right' is one of the most deceptive pitfalls; it is so easy to slip from a qualified meaning into the premise of an unqualified one in conclusions. Most rights are qualified." (American Bank & Trust Co. v. Federal Reserve Bank, 412 Supreme Court Reporter 499.) (See also Grenada Lumber Co. v. Mississippi, 217 U. S. 433; Eastern Retail Lum ber Dealers Association v. United States, | junction, such closely associated articles 234 U. S. 600.) Judge Rose, in his instructions to the jury in Frey v. Welch Grape Juice Co., *said: "Absolute or nearly absolute as the right to select customers may be, it is doubtless no more absolute than many of our other rights, such as the right to use our capital, our industry, and our brains to their best advantage. I take it, however, and I shall so instruct you, that the law is that no man shall willfully and knowingly use his money, his industry, his brains, or his right to pick and choose between his would-be customers to induce or bring about a violation of law. That is to say, the doing of some act which the law forbids." (Frey v. Welch Grape Juice Co., 218 Fed. 502.) When the public interests are not seriously affected thereby, a person has a constitutional right to refuse to sell, but when the public interests are affected, individual rights must yield to the supreme right of the State to protect those interests. See the following cases: Union Pacific Coal Co. v. United States, 173 Fed. 737; Munn v. Illinois, 94 U. S. 113; C., B. & Q. Railroad Co. v. McGuire, 219 U. S. 549; German-American Insurance Co. v. Kansas, 233 U. S. 389. WHEN ONE MAY RIGHTFULLY REFUSE TO SELL. "An individual manufacturer or trader may surely buy from or sell to whom he pleases and may equally refuse to buy from or sell to anyone to whom he thinks it will promote his business to refuse to trade. That is entirely a matter of his private concern, with which governmental paternalism has not yet sought to interfere, except when the property he owns is 'devoted to the use in which the public has an interest,' and such public interest in the use has as yet been found to exist only in staple commodities of prime necessities." (Dueber Watch Case Mfg. Co. v. Howard Co., 66 Fed. 637, 645.) 'All questions of monopoly or combination being out of the way, a private merchant acting with entire good faith may properly refuse to sell except in con as steel ties used for binding bales of cotton and jute bagging used to wrap such bales." (Federal Trade Commission v. Gratz et al., 253 U. S. 421.) "A trader may refuse to sell his goods to those who will not sell them at prices which he fixes for their resale, but he may not consistently with that act go beyond the exercise of this right, and by contracts or combinations, express or implied, unduly hinder or obstruct the free and natural flow of commerce in the channels of interstate trade." (Federal Trade Commission v. Beech-Nut Packing Co., 42 Sup. Ct. 150.) "Construing together the provisions of section 2 of the Clayton Act, the last proviso in effect authorizes persons engaged in selling goods in interstate commerce to select their own bona fide customers, provided the effect of such selection is not to substantially and unreasonably restrain trade; and the refusal of a manufacturer to sell its product to a dealer, who avowedly uses it in a manner which injures and lessens the trade of the maker, can not be said to be an unreasonable restraint of trade, nor a violation of the statute." (Syllabus.) (Great Atlantic & Pacific Tea Co. v. Cream of Wheat Co.,. 224 Fed. 566; affirmed in 227 Fed. 46.) (See also Jayne et al. v. Loder, 149 Fed. 21; Coca Cola Co. v. J. G. Butler & Sons, 229 Fed. 224.) REFUSAL TO SELL NOT UNFAIR COMPETITION. In the absence of an intent to create or maintain a monopoly, a trader or manufacturer may freely exercise his own discretion as to persons with whom he will deal, and may announce in advance the circumstances under which he will refuse to sell. (Andrew Jergens v. Woodbury (Inc.) et al., 271 Fed. 43.) A DEALER MAY REFUSE TO TRADE WITH CUSTOMER, BUT CAN NOT AGREE TO DO SO WITH OTHERS. "A dealer may select his own customers. for reasons sufficient to himself, and may refuse to deal with a proposed customer, whom he thinks is acting unfairly and is |