in the attitude of accepting a gift pure and simple, but that gift was made in reliance upon a promise given in his behalf. Can he violate the promise and fairly take that which came to him solely on account of the promise, even if it was not made or authorized by him? We think not, because his title came through the promise, and by accepting the gift he ratified the promise. He must repudiate the gift or accept the responsibility. While the cases are not uniform, the weight of the authority sustains this conclusion." 111

In Winder v. Scholey 112 the reasoning of the New York court in Amherst College v. Ritch was adopted. But, for that reasoning to apply, the promise made by one tenant in common must not be for himself alone. If it is, he alone will be deemed a trustee because of the retention of the property in breach of that promise.113

The policy of enforcing constructive trusts where a legacy or devise or intestate succession is secured by oral promises which are broken.

In concluding this discussion of bequests, devises, and intestacies obtained on oral promises, a word should be said about the wisdom of enforcing constructive trusts in such cases. In Bedilian v. Seaton,114 where there seems to have been good ground to refuse to

111 Id., pp. 327-328. In Edson v. Bartow, supra, 221, the court said of Amherst College v. Ritch, supra, that “we held that Bulkley by accepting the gift ratified the promise made in his name." A late case following these cases is Golland v. Golland, supra.

112 Supra.

113 Edson v. Bartow, supra. In Simons v. Bedell, 122 Cal. 341, 55 Pac. 3 (1898) a trust was enforced against the heirs of the intestate under rather unusual circumstances. During the last illness of intestate, her father persuaded her to deed a piece of land in New York to her mother and not to make a will disposing of a piece of land in Los Angeles, by a promise that if she would deed the New York piece to the mother, then the father and mother, who with intestate's husband were her sole heirs at law, would convey the Los Angeles piece to the intestate's husband. The court held that while the father was not the agent of the mother in making the promise, the mother could not keep the New York property deeded to her except on the condition stated by the grantor. The court intimated that the mother could keep the interest in the Los Angeles property which intestate intended that she should convey to intestate's husband (or rather its proceeds, for it had been sold by order of court), if she chose to give up the New York property to the estate of intestate, saying: "Equity and good conscience demand that the defendants Bedell either convey the New York property to the estate of [intestate] Jennie Simons, deceased, or relinquish all claim upon the proceeds of the Los Angeles property." (p. 348). The opinion, one by a Supreme Court Commissioner, is inadequate, but the decision presents the interesting problem of a promise by one of two out of three prospective tenants in common, here as heirs at law,- made for the second without authority and in favor of the third. 114 Supra.

enforce a constructive trust, as there was nothing to show that intestacy was induced by the promise, Grier, J., expressed his dislike of the doctrine that constructive trusts will be enforced for retention of legacies or devises or intestate succession in breach of oral promises in the following language (p. 287):

'After forty years' experience at the bar and on the bench, I must say that I think courts had better never have relaxed the stringent rule of these statutes [of frauds, wills, and descents]. Courts, as well as juries, are too apt to be led away by the cry of 'Fraud '! We all hate fraud and are too willing to assume the functions of an overruling Providence and punish it by arbitrary power. This feeling of virtuous self-complacency too often leads to hasty decisions and dangerous precedents. I have known a valuable property converted into a trust by the testimony of an old woman who recollected and construed a nod, after some twenty-two years, into the acknowledgment of a trust. See Jones v. McKee, 3 Barr (Pa.) 496."

No doubt there are occasional miscarriages of justice under the constructive-trust doctrine, but they are far fewer than would take place if fraudulent retention were not remedied under that doctrine. When it is remembered that no promise will be regarded that does not call unquestionably for performance,115 that failure to perform the promise must be clearly shown,116 and that the court must be satisfied that the testator or intestate relied on the promise,117 there seems to be no occasion to fear that any appreciable number of constructive trusts have been raised, or will be raised unwarrantably.118

NORTHWESTERN UNIVERSITY LAW SCHOOL.

George P. Costigan, Jr.

115 See Orth v. Orth, supra; Allman v. Pigg, 82 Ill. 149 (1876).

116 Sparks v. De La Guerra, 14 Cal. 108 (1859).

117 Whitehouse . Bolster, 95 Me. 458, 50 Atl. 240 (1901); Tyler v. Stitt, supra. Cf. Campbell v. Brown, supra; Mead v. Robertson, supra. But, doubtless, where the express or tacit promise is clearly proved, there is a primâ facie presumption that the testator would not have made the will or would have revoked or modified it, or that the intestate would have made a will, but for the promise. See DeLaurencel v. DeBoom, supra, 586.

118 That the evidence must be clear, cogent, and convincing is the accepted rule in this class of cases. Grant v. Bradstreet, supra; Stone v. Manning, 103 Tenn. 232, 52 S. W. 990 (1899).

ADDENDUM

Through the oversight of the writer a note intended for the end of the sentence just before n. 10 on page 241, ante, was misplaced until too late for its insertion there. It seems worth while to insert it here even though it consists mainly of a quotation. In Krell v. Codman, 154 Mass. 454, 28 N. E. 578 (1890-1891), a voluntary covenant to pay a sum of money six months after the death of the covenantor was enforced against the executors of the covenantor despite their objection that it was in effect a will. In passing on the question, Mr. Justice Holmes said:

"The truth is that the policy of the law requiring three witnesses to a will has little application to a contract. A will is an ambulatory instrument, the contents of which are not necessarily communicated to any one before the testator's death. It is this fact which makes witnesses peculiarly necessary to establish that the document offered for probate was executed by the testator as a final disposition for his property, but a contract which is put into the hands of the adverse party and from which the contractor cannot withdraw stands differently. See Perry v. Cross, 132 Mass. 454, 456, 457. The moment it is admitted that some contracts which are to be performed after the testator's death are valid without three witnesses a distinction based on the presence or absence of a valuable consideration becomes impossible with reference to the objection which we are considering. A formal instrument like the present, drawn up by lawyers and executed in the most solemn form known to the law is less likely to be a vehicle for fraud than a parol contract based on a technical detriment to the promisee."

THE EFFECT OF THE FEDERAL "ANTI-TRUST LAWS" ON COMMERCE IN PATENTED AND COPYRIGHTED ARTICLES

THE

HE Clayton Anti-Trust Act which went into effect Oct. 15, 1914,1 restricts the making of "tying contracts," affecting: "goods, wares, merchandise, machinery, supplies, or other commodities, whether patented or unpatented."

The insertion of the words "whether patented or unpatented" injects further interest into a subject which has claimed much recent attention before the United States Supreme Court.

The purpose of the patent and copyright laws is to create monopolies. The purpose of the "Anti-Trust Laws" is to restrict them. Obviously there is a line where the operations of the two groups of statutes must come into contact, if not into conflict. These two questions are therefore presented:

First: Exclusive of the Clayton Act, does the fact that a monopoly, combination, or agreement alleged to be in unlawful restraint of trade, involves the use of patented or copyrighted commodities, cause it to be judged by a standard different from that governing other situations, and if so, to what extent?

Second: If such a different standard exists, how far has it been affected by the Clayton Act?

I

THE STATUS OF THE LAW BEFORE THE CLAYTON ACT

The Sherman Act 2 provides that:

"Sec. 1. Every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce . . . is hereby declared to be illegal. . . .

"Sec. 2. Every person who shall monopolize or attempt to monopolize or combine or conspire with any other person or persons to

1 PUBLIC ACTS No. 212, 63d Congress, § 3.

2 26 STAT. AT L. 209.

The other federal "Anti-Trust Laws" apply to imports and are in substantially similar form. Into this language must be read the principle of the Standard Oil and Tobacco and some later cases that the laws are to be interpreted in the "light of reason" and that only "undue" restraint of commerce is prohibited.

4

Conferring the right to create patents and copyrights, the Constitution of the United States gives to Congress the power "To promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

Pursuant to this, Congress has granted to every patentee for the term of seventeen years "the exclusive right to make, use, and vend the invention or discovery."

To holders of copyrights it has granted 7 for the term of twentyeight years the sole liberty of "printing, reprinting, publishing, completing, copying, executing, finishing, and vending" their works.

There is no doubt that a combination or contract may be unlawful under the Sherman Act, though it relates to either patented or copyrighted commodities. Nevertheless the element of patents and copyrights is important at times in determining whether that act has been violated. At least three decisions of the United States Supreme Court and two decisions in the

Act of Aug. 27, 1894, 28 STAT. AT L. 570, §§ 73-77, and amendment of Feb. 12, 1913, 46 STAT. AT L. 667.

4 Standard Oil Co. v. United States, 221 U. S. 1 (1911); United States v. American Tobacco Co., 221 U. S. 106 (1911); United States v. Union Pacific R. R. Co., 226 U. S. 61 (1912).

5 ART. I., § 8.

6 REV. STAT., § 4884.

7 REV. STAT., § 4952.

8 Standard Sanitary Mfg. Co. v. United States, 226 U. S. 20, 48, 49 (1912); Straus v. American Publishers' Association, 231 U. S. 222 (1913); United States v. Patterson, 205 Fed. 292 (1913); Blount Mfg. Co. v. Yale, etc. Co., 166 Fed. 555 (1909); National Harrow Co. v. Hench, 83 Fed. 36 (1897), 84 Fed. 226 (1898); BobbsMerrill Co. v. Straus, 139 Fed. 155 (1905); Strait v. National Harrow Co., 18 N. Y. Supp. 224 (1891); National Harrow Co. v. Bement, 47 N. Y. Supp. 462 (1897); Attorney-General v. National Cash Register Co., 148 N. W. 420 (Mich., 1914); Mines v. Scribner, 147 Fed. 927 (1906).

9 United States v. Winslow, 227 U. S. 202 (1913); Dr. Miles Medical Co. v. Park & Sons, 220 U. S. 373 (1911); Bement v. Nation Harrow Co., 186 U. S. 70 (1902).