ments with the railroads that they were exclusively to enjoy the unlawful advantage, and that their intent in what they did was to monopolize the commerce and to prevent competition."

The court further observed in sustaining the injunction that although the combination alleged embraced restraint and monopoly of trade within a single State, its effect upon commerce among the States is not accidental, secondary, remote, or merely probable. On the allegations of the bill. the latter commerce no less, perhaps even more, than commerce within a single State is an object of attack. (Leloup v. Port of Mobile, 127 U. S. 640, 647; Crutcher v. Kentucky, 141 U. S. 47, 59; Allen v. Pullman Co., 191 U. S. 171.) The subject-matter is sales, and the very point of the combination is to restrain and monopolize commerce among the States in respect to such sales.

As to the contention that the bill was too vague and did not set forth a case of commerce among the States, the court said: "Commerce among the States is not a technical legal conception but a practical one, drawn from the course of business, When cattle are sent for sale from a place in one State, with the expectation that they will end their transit after purchase in another, and when in effect they do so, with only the interruption necessary to find a purchaser at the stock yards, and when this is a technical, constantly recurring course, the current thus existing is a current of commerce among the States, and the purchaser of the cattle is a part and incident of such commerce." The court observed further that no more powerful instrument of monopoly could be used than an advantage in the cost of transportation. (Swift v. United States, 196 U. S. 375.)

$47. Stock Quotations, when not Within. There is a property right in market news whose dissemination is helpful to commerce, as quotations of prices on sales of grain and provisions for future delivery, which a court of equity will protect by injunction. Persons who disseminate such news may invoke the protection of a court of equity, and the right to sell such quotations will not be deemed infected.

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with illegality or beyond judicial protection because the owner of the news maintains an exchange where parties receiving such quotations do not contemplate an actual delivery of the goods whose prices are quoted. Nor will such contracts be deemed illegal because the information is sold to certain persons, and withheld from others, where the persons prohibited from receiving such quotations are what are known as bucket-shops. A business so conducted is not void as against public policy, nor as being in restraint of trade, whether at common law or under the Anti-Trust Act of July 2, 1890, known as the Sherman Act. (May, 1905. Board of Trade v. Christie Grain and Stock Co., 198 U. S. 236.)

The court further held that if plaintiff's collection of information is entitled to protection, it does not cease to be so entitled even if it secures information concerning illegal acts. The statistics of crime are property, to the same extent as any other statistics, even if collected by a criminal who furnishes some of the data. Plaintiff's collection of quotations is like a trade secret. The plaintiff has the right to keep the work which it has done, or paid for doing, to itself. The fact that others might do similar work if they might, does not authorize them to steal the plaintiff's. (Ib.)

§ 48. Sale of Steamboats and Business of Carrier, when not Within Trust When Contract of Sale of Steamboats is not.-An action was brought by a vendor against a vendee to recover an installment of money due under a contract for the sale of certain steamboats and barges engaged in traffic on the Ohio river. The contract was for the sale of two steamers, two deck barges, two coal flats, and $500 in the stock of the Coney Island Wharf Boat Company. The contract contained a provision that in case of opposition to the boats sold, by other boats running from Cincinnati to Portsmouth, Ohio, or to points above Portsmouth, not including points above Syracuse, Ohio, causing it to carry freight and passengers at certain exceedingly low rates, the time of payment of the installment should be postponed until the opposition ceased. The agreement also contained a

provision that if the opposition continues for two years without interruption, and no actual payment be made, the vendee might cancel the contract. It contained a further agreement that the vendors should not engage in running or in operating, or in any way be interested in any freight or passenger or packet business, or either of them, at and from Cincinnati, Ohio, to Portsmouth, Ohio, and intermediate points at and from Portsmouth, Ohio, to Cincinnati, Ohio, and intermediate points or at and from Syracuse or points. between Syracuse and Portsmouth, Ohio, to or from points. below Portsmouth, Ohio, for a period of five years. A provision was also inserted that the vendee would maintain the rates charged by the vendor on business above Portsmouth, Ohio, said rates, however, never to exceed present rates between said points. It was claimed that this contract was not within the condemnation of the Sherman Act because it did not in terms relate to Interstate Commerce. The court hold, however, that even if it did contemplate interstate 'commerce, it would not be in violation of the Sherman Act for the reason that the provisions of the contract were merely incidental to the sale of a business, and were not and could not be construed as a device to control commerce within the meaning of the Sherman Act. The court said the agreement to maintain the rates was not the covenant sued upon and did not form part of the consideration of the sale. (Cincinnati Packet Co. v. Bay, 200 U. S. 179.)

$ 49. Sale of Mercantile Business and Good Will, when not Within.- An agreement by the seller of property, or of a particular business, not to compete with the buyer for a specified period of time (ten years), in such a way as to impair or compete with the business sold, is not a contract in restraint of trade and commerce within the purview of the Sherman Act. (Booth & Co. v. Davis, 127 Fed. Rep. 875. Circuit Court, eastern district, Michigan, January 19, 1904.)

In the case cited complainant sought to enjoin defendant Davis from violating his contract with plaintiff not to engage directly or indirectly in the fish business, and to re

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strain defendant, the Wolverine Fish Co., Limited, from benefiting in any way by the services and experience of defendant Davis. Plaintiff purchased the property and goodwill of the Davis Company, a Michigan corporation, and the corporation and all of its officers and stockholders, as part of the contract of sale, agreed not to engage in the business for ten years. Defendants claimed that the contract of sale was void under the Sherman Act, and that such contracts were also prohibited by the Michigan Anti-Trust Act of June 23, 1899.

The injunction, was granted on the ground that the contract was not within the Sherman Act, and that the Michigan Anti-Trust Act, in force in 1889, when the sale was made, was repealed in 1899, when a new Anti-Trust Act was passed. The new statute was passed after the sale was consummated, and the court held that it was not retroactive in its operation. (Booth & Co. v. Davis, 127 Fed. Rep. 875.)

50. Agreement not to Sell Goods Outside the State not Within Sherman Act.— It was not the purpose of the Sherman Act to prohibit ordinary contracts or combinations of manufacturers, or the usual devices to which they resort to enhance their trade and make their occupation gainful, so long as they do not directly restrict competition in commerce among the States. A Kansas corporation engaged in the manufacture and sale of cement at Iola, Kan., sold to defendant and his firm 50,000 barrels of cement to be shipped free on board at Iola to Galveston, Tex., at $1.20 per barrel. Defendants agreed "not to sell said cement, ship same, or allow same to be shipped" outside the State of Texas. Part of the cement was received and paid for; the remainder defendants refused to receive or pay for. In a suit for the price the defense was that the contract of sale was void under the Sherman Act. Held, that the agreement of sale imposed no direct restriction on competition. in commerce among the States, and was valid and not within the prohibition of the Sherman Act. (Phillips v. Iola Portland Cement Co., 125 Fed. Rep. 593. Novem

ber, 1903.)

See also Whitwell v. Continental Tobacco Co., 125 Fed. Rep. 454.

8 51. Illegal Contract Under-When not EnforceableRights of Parties. Neither party to an illegal contract will be aided by the court, whether to enforce it or to set it aside. If the contract is illegal, affirmative relief against it will not be granted at law or in equity unless the contract remains executory, or unless the parties are considsidered not in equal fault, as where the law violated is intended for the coercion of the one party and the protection of the other, or where there has been fraud or oppression on the part of the defendant. Where the parties are in pari delicto, and the contract has been fully executed on the part of the plaintiff by the conveyance of property or by the payment of money and has not been repudiated by defendant, it is well settled that neither a court of law nor a court of equity will assist the plaintiff to recover back the property conveyed or money paid under the contract. held where the plaintiff sought to recover back stocks and securities sold by him to the defendant under a contract which had been adjudged void as in violation of the Sherman Act known as the railroad merger, which was declared to be illegal. (Northern Securities Co. v. United States, 193 U. S. 197.) The court applied the maxim in pari delicto potior est conditio defendentis, notwithstanding the fact that the parties claimed to have acted in good faith and without intention to violate the law. With knowledge of the facts and of the statute, neither can plead ignorance of the law as against the other, and defendants secured no unfair advantage in retaining the consideration voluntarily delivered for the price agreed. (Harriman v. Northern Securities Co., 197 U. S. 244.)

Copyright

So

§ 52. Book Trust Blacklisting Void Under Sherman Act.- A combination of publishers and booksellers was formed in two associations, known respectively as the "American Publishers' Association" and the "American Booksellers' Association." They controlled