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 FAIR COMPETITION have considered the subject. They impair and destroy the usefulness of the railroads themselves, and their ability to serve the public with certainty, efficiency, and safety. The business interests of the community which move the crops and bring supplies to the consumer require that rates be stable. Every precaution has been taken by state legislatures and by the congress to keep them just and reasonable, — just and reason able for the public and for the carriers. A few favored points and a few persons may for a short time receive temporary advan tage. But the result of such a war is the destruction of values, the disturbance and injury of all business interest, the demoral ization and confusion of rates, and great public and private loss."1 VII

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real or personal, has an undoubted right to sell it and to offer it for sale at whatever price he deems proper, although the effect of such offer may be to depreciate the market value of the commodity which he thus offers, and incidentally to occasion loss to third parties who have the same kind or species of property for sale."1 The same principle that the proprietor of a business has a right to fix the price at which his own goods shall be sold whatever damage he may cause a competitor thereby is seen in Walsh v. Dwight (40 App. Div. 8 N. Y. 513). It appeared in that case that the plaintiffs who were manufacturers of saleratus, were hampered in marketing their product by the terms which the defendants made in selling their Cow Brand Saleratus, a well advertised article. It seemed that the defendants made agreements with many jobbers, as the result of which the jobbers would not handle other brands of saleratus which sold at a lower price. The court held that this policy would constitute no legal injury, however much competitors might be damaged; Mr. Justice Ingraham saying: "There is nothing to prevent an individual from selling any property that he has at any price which he can get for it. Nor is there any reason why an individual should not agree that he will not sell property which he owns at the time of making the agreement, or which he thereafter acquires, at less than at a fixed price; and certainly a contract of this kind is not one which exposes the parties to it to any penalty, or subjects them to an action for damages by

The attempt in every modern case of this sort is therefore to show something more than mere competition, to show in the par ticular case there are special circumstances which bring the case outside the ordinary course of competition. A striking instance of this is the recent case of Passaic Print Works v. Ely & Walker Dry Goods Com pany (105 Fed. 163). The plaintiffs were the manufacturers of various brands of calicoes which sold usually at fixed prices, and they complained of a circular sent out by defendants offering these prints at cut prices upon the ground that it injured their trade; for no jobber of theirs could sell "Central Park Shirtings" at 3 J cents per yard, the list price, while the defendants were offering the same goods at 2 J cents. 1 It may be that the justification of competi The majority of the court — Mr. Justice tion may not prevail if the object in underselling Thayer writing the opinion — decided is solely to injure a pe*rson as was admitted by the demurrer in the case quoted above. Pro against the complainants; the gist of his fessor Ames regards such wanton damage as opinion being this: "The owner of property, altogether indefensible; in 18 Harvard Law 1 It is needless to point out that to cut rates for Review, 420, note 2, he refers to all the dicta there particular customers is unfair competition in public are on both sides of this question. But Professor Smith in 20 Harvard Law Review, 454, considers service, since illegal discrimination is thereby em ployed. See Mobile v. Bienville Water Supply Co., it unadvisable to open this question to investiga tion. 130 Ala. 379, and compare Messenger v. Pennsyl vania, 37 N.J. L. 531.