Page:The Green Bag (1889–1914), Volume 16.pdf/128

 Schemes to Control the Market. quest of the sales agent, his quota of stone as apportioned. This contract was observed by the parties for about three years. Accordingly, Mr. Justice Landon held this arrangement bad altogether: "The plaintiff urges that it was a question of fact for the jury, and not of law for the court, whether the contract was simply to secure reasonable prices, or to extort from the public unreason able prices. It may be conceded that one of its purposes was to enable the parties to obtain reasonable prices, but it gave them the power to fix arbitrary and unreasonable prices. The scope of the contract and not the possible self-restraint of the parties to it, is the test of its validity. They could raise prices to what they supposed the market would bear, and as they expected to supply nearly the entire demand of the market, the temptation to extortion was unusually great. The parties to this contract controlled 90 per ccntwn of a total produce of about $2,000,000 in value, marketed in New York city. Other kinds of stone were in competition with it, but it is plain that the customer who pre ferred this stone would be restricted in his reasonable rights, if constrained by a monopoly to pay an exorbitant price for it or to accept another kind which he did not want. The uncontraclicted evidence left it clear that this contract was void for the rea sons stated, and the trial court was right in so holding as a matter of law." A precious scheme is disclosed in Mil waukee Masons and Builders' Association v. Niezerowski (95 Wis. 129). This was an action on a note to which the following facts were pleaded as making out a defence upon grounds of public policy. The note was given by the defendant, a builder, to the plaintiff, the association, in pursuance of its require ments that every successful bidder for con tracts in Milwaukee should pay over to the association six per cent, of the contract price. A prudent bidder would, of course, add the six per cent, to his original offer; and as all

in the association would do this, the effect would be to force up prices to that extent. It is needless to say that this general plan was kept a secret. The showing of such a scheme was enough for Mr. Justice Pinney. He said on that point: "The combination in question is con trary to public policy, and strikes at the in terests of those of the public desiring to build, and between whom and the association or the members thereof there exist no con tract relations. While all reasonable stipula tions and means to protect labor or trade are laudable, we must hold that the means here sought to be employed are such as the law will not sanction. We must consider what may be done under such an agreement, and the result which it will necessarily produce. As already pointed out, the operation of this combination, under its private by-laws, is to suppress free and fair competition in bidding for contracts, and by delusive and deceptive means members of the association are en abled to exact from owners a higher price for buildings than they would otherwise have to pay. In the matter of changes or additional work, all competition by other members of the association is prohibited, unless the amount exceeds the original contract price. And as the membership of the association embraces nearly six-sevenths of the mason builders in Milwaukee, the combination not only tends to suppress competition, but oper ates most unjustly toward builders not mem bers of the association. The restraint thus imposed on the trade is neither fair nor rea sonable." An amazing machination was brought to view in one of the principal proceedings insti tuted under the Federal Anti-Trust Law, Addystone Pipe Company v. United States (175 U. S. 211). This arrangement was en tered into by almost all of the manufacturers of iron pipe between the Appalachian Moun tains and the Rocky Mountains. By the by laws, before any sales could be made by any