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cago, R. I. & P. Ry. Co. v. Payne, Ark., 217 S.

take, or inadvertence, or the excusable mistake W. 810.

of one party and fraud of the other as to agree66.- Workmen's Compensation Act. A quar ment on which the minds of the parties have rel between a watchman and a superintendent, met, in order that a reformation may be adresulting in a homicide, held to arise out of judged.--Metzger V. Aetna Ins. Co., N. Y., 125 N. the employment within Workmen's Compensa E. 814, 227 N. Y. 411. tion Act, though personal matters entered into 81.---Replevin-Burden of Proof-Plaintiff in the controversy.-American Smelting & Refining | replevin must recover on the streng Co, V. Cassil, Neb., 175 N. W. 1021.

own right, and not on the weakness of defend67.- Workmen's Compensation Act.-Where ants.-Jackson v. City of Columbia, Mo., 217 S. a workman without work for a brief space of W. 869, time went away from his working place a few 82.- Growing Crop.-Growing crops are subyards to speak to a fellow workman in the ject to replevin, without regard to whether they same room, according to a custom in the factory. are growing or, having matured, have ceased and was injured when his sleeve was caught by to derive any nutriment from the soil. Stephens the suction of an unguarded machine, it could v. Steckdaub, Mo., 217 S. W. 871. not be said as a matter of law that he was be

83.-_-SalesAcceptance of Option.- An opyond the protection of the Employers' Liability tion to purchase, once accepted, becomes a bindand Workmen's Compensation Statute.-Barber ing contract upon the parties thereto. Sussman V. Jones Shoe Co., N. H., 108 Atl. 690.

v. Gustav, Wash., 186 Pac. 882. 68.--Mortgages - Assumption of Payment.

84.- Cancellation. A letter: "Please cancel Where purchaser of mortgaged premises as my back orders. I am in a notion of quitting sumes the payment of the mortgages thereon, business and leave to Europe to see iny people" he becomes the principal debtor and the original --sufficiently showed an intent to cancel or counmortgagor becomes only a surety --First State termand all orders for goods that had not been Bank of Binford v. Arneson, Wash., 186 Pac. delivered at the time the letter was written889.

J. R. Bissell Dry Goods Co. v. Katter, Ark., 217 69.-- Priority.--Where advances are made by S. W. 779. senior mortgagee under provision providing for 85.--Searchers and Seizures - Production of optional advances with no actual notice of a Papers.--Knowledge gained by government's second mortgagee, the advances extend the scope wrongful search and seizure may not, on return of the lien: the mortgage as to such advances by order of the court, of the original articles, constituting a new lien or incumbrance.--At be used to call on the owners by Subpoenas kinson v. Foote, Cal., 186 Pac. 831.

to produce them: so that they may not be pun70.- Redemption. The holder of a sherill's ished for disobeying an order to comply with deed based on the foreclosure of a second mort the subpoenas.-Silverthorne Lumber Co. v. U. gage is entitled to redeem from a subsequent S., U, S. S. C.40 S. Ct. 182. sale under a decree foreclosing the first mort

86.-Speeific Performance Merchantable Title. gage-Anderson v. Catlin, Kans., 186 Pac. 1027. --Equity will not require one to take title un

71.--Municipal Corporations - Burden on der a contract providing for good merchantable Streets.--Streets cannot be subjected to any other title unless it is made to appear that the title use without the consent of the owners of the which the seller seeks to force upon the buyer fee.--Wilson V. Burress, S. C., 101 S. L. 820.

is such a title.-Crom v. Henderson, Iowa, 175 72.- Negligence_Imputability.--Negligence of N. W. 983. brother driving a buggy to town to enable his 87.---Subrogation-Defined.-Subrogation is the sister to take a train is not imputable to her, substitution of another person in the place of a the brother not being under sister's control. creditor, so that the person in whose favorit Lawler v. Montgomery, Mo., 217 S. W. 856.

is exercised succeeds to the rights of the creditor 73.---Imputability. -One riding in an auto in relation to the debt.-Graham v. Durnbaugh, mobile is barred from recovering for the negli Cal., 186 Pac. 798. gence of a third person if the driver of the au

88.- Telegraph and Telephone-Limitation of tomobile is also chargeable with negligence Liability. A rule of a telegraph companiy limproximately contributing to the accident, Stein iting its liability on account of delay in delivery krause v. Eckstein, Wis., 175 N. W. 988.

of interstate message to amount received for 74. -Partnership-Defined.--A "partnership" is same held valid and binding.Klippel y. Westan association of two or more persons for the ern Union Telegraph Co., Kansi. 186 Pac. 993. purpose of carrying on a business together and 89.--Tender Unconditional. It is a correct dividing the profits between them.-King V. general rule that every tender by a debtor to a Gants, Okla.. 186 Pac, 960.

creditor must be absolute and not coupled with 75.- Profits.-A contract whereby plaintiff, conditions, but if the condition interpolated is furnishing teams, etc., should receive one-half not prejudicial to the creditor, and is one which of the net proceeds earned by a mercantile busi the debtor has a right to insist upon, it will not ness, it being agreed that defendant was the vitiate the tender.-Dozier v. Vizard Inv. Co., owner of the business, and that "all the ac Ala.. 83 So. 572. counts, stocks, and supplies necessary to carry

90.---Trade Marks and Trade Names - The on such business are the sole property of the Change of Name.-Where M. M. Newcomer and party of the first part (the defendant) and shall others incorporated the M. M. Newcomer Comcontinue so throughout the length of this agree pany and later sold the stock and organized a ment," except rolling stock to be furnished by corporation as “Newcomer's New Store," at a plaintiff, held not to create a partnership. location near by, and entered the same or simiMcPherson v. Great Western Milling Co., Cal., lar business, the latter will be enjoined from 186 Pac. 803.

the use of the word "Newcomer,' evidently 76.-Principal and Agent - Declarations of adopted by the latter corporaion for the frauduAgent. The unsupported declarations of an lent purpose of deluding the public and injuring agent that he is the agent of another is incom the business of the former.-M. M. Newcomer petent to prove agency.-Sanders V. Barnwell Co. v. Newcomer's New Store, Tenn., 217 S. W. Lumber Co., S. C.. 101 S. E. 860.

822. 77.--Railroads Compulsory Operation - A 91.-Trusts-Income.–Stock of subsidiary corcompany cannot be compelled to operate its poration, purchased out of earnings of holding railroad where it cannot do so without loss company accumulated subsequent to creation therefrom, though its other business of lumber of trust, go to life beneficiary of stockholders ing be sufficiently remunerative to absorb the estate as income, and not to remaindermen as loss and make returns on its entire business.-- capital.-Macy v. Ladd, N. Y., 125 N. E. 829. Brooks-Scanlon Co. y. Railroad Co., U. S. S. C., 92.--Usury-Tender.-Plaintiff seking to have 40 S. Ct. 183.

a deed canceled as being infected with usury 78.--Warning to Travelers. — Automobilists must tender payment of the principal amount of approaching crossing have a right, if the con the debt and lawful interest.-Polite v. Williams. trary does not appear, to assume that the rail Ga., 101 S. E. 791. road employes will give the customary warnings. 93.-_Wills-Bequest. The words of a will. "I Barrett V. Chicago, M. & St. P. Ry Co., Iowa, give to my sister" named, standing alone, are 175 N. W. 950.

sufficient to give to the sister an absolute es79.-Rape-Civil Action. One upon whom a tate.--Dexter v. Young. Mass., 125 N. E. 862. rape has been committed has a right to settle 94.- Probate. Where an instrument is merewith the offending party for the injury done her. ly a contingent will and the condition upon and may maintain a civil suit to recover dam which it was to become effective has failed, it ages-People v. Marx, Ill., 125 N. E. 719.

cannot be admitted to probate.--Lee V. Kirby 80.-Reformation of Instruments-Mistake. Ky, 217 S. W. 895. While in equity a rescission of a contract may 95.-----Vested Remainder.-The law leans tobe adjudged on the ground of a unilateral mis ward vested remainders-Boston Safe Deposit & take in its contents, there must be mutual mis Trust Co. v. Wall, Mass., 125 N. E. 853.

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Central Law Journal.

consideration was not "of what the corpora

tion had power to do or did, but what it ST. LOUIS, MO., APRIL 9, 1920.

has now power to do and is doing.” Un

der this rule it would seem that any illegal ARE MONOPOLIES ILLEGAL UNLESS AC

combination using its power unlawfully to COMPANIED BY AN ABUSE OF THE control prices and production could quickly POWER CONFERRED BY THE COMBI suspend its illegal practices on the first sign VATION?

of a storm of executive displeasure and

continue to be "good" until the suit subseThe Sherman Act, designed to prohibit quently brought had been dismissed when combinations in restraint of trade, has, in it could promptly resume its illegal practhe opinion of many lawyers, been cutie tices. It would simply be a case of the strued to death in the recent so-called Steel "devil was sick, the devil a saint would be." Trust Decision. United States of America The Court admits that the illegal practices

vited States Steel Corporation (Opin- of the defendant continued as late as the ion handed down March 1, 1920).

year 1911, including attempts to control The defendant corporation in this case

prices, which practices the Court declares was the result of the merger of one hun

were "abandoned nine months before this dred and .eighty independent concerns.

suit was brought.” The Court further deThere was ample evidence to show that the

clared that there was not evidence “that the company, at the time of its organization,

abandonment was in prophecy of or dread controlled about ninety per cent of the steel

of suit; and the illegal practices have not business, and that the purpose of the or

been resumed nor is there any evidence of ganization was “to monopolize the steel

an intention to resume them.” This last retrade.” This finding was by Judges

mark is due, no doubt, to the rule as to the Wooley and Hunt in the District Court (223

"dangerous probability" of a resumption of Fed. 161). The District Court, however,

illegal practices announced in the case of found that the defendant did not, at the

Swift & Co. v. United States, 196 U. S. time suit was filed, control more than 49

396. per cent of the steel business and that it Justice McKenna, who writes the opinhad abandoned its purpose to monopolizeion for the majority of the Court spends the trade and to fix prices, for which rea

| much effort at ridiculing the governsons the District Court concluded that de ment's contention that the possession of fendant should not be dissolved nor in any the power of monopoly is itself illegal. He respect held responsible for the sins of its speaks of the “contradictions” involved in crganizers. The Supreme Court affirmed this theory and writes a school-boyish essay the decree dismissing the Government's bill on elementary principles of logic which by a vote of four to three, Justices Bran seem to have no purpose to serve except to deis and McReynolds, not sitting and Jus divert the mind from the main point at istice Day with Justices Pitney and Clarke sue. In the Standard Oil Case, 221 U. S. 77, dissenting.

the Court had distinguished, very properly, Probably the most important principle it seems to us, between acts done in violaannounced by the Court in this case as the tion of the statute and the condition brought basis of its decision is that the intent and about by the merger which "in and of iteven the actual accomplishment of the or self is not only a continued attempt to moganizers of a so-called combination in re nopolize but also a monopolization.” In straint of trade to effect a monopoly have the present case Justice McKenna regards no bearing on the question whether the com- only the acts done in restraint of trade and bination is in fact illegal at the time suit not the condition produced by the merger is instituted. The court declared that their as being illegal. But the merger itself, "apart from works,” created a monopoly, not seek to drive out all of its competitors which the Court was required to strike from the market and does not seek to extort down. The learned Justice insists, however, too great profits out of its monopoly, it is that though the defendant is colossal in size not an illegal combination. This rule is and capable of exerting a tremendous in contrary to all the previous decisions of Huence in its particular field, yet such pow- the Supreme Court and to the clear intent er was not now being exercised and had not of the Sherman Act itself. been exercised, since the suit was filed, except for good. The opinion calls at- Justice McKenna is at great pains to tention to the fact that customers and prove the serious consequences to defendcompetitors made no complaint against ant's business and to the business of the the defendant; that prices were maintained country in general which would result from at a certain level to which all competitors the dissolution of the defendant corporaadhered; that the company did not seek to tion. He calls attention, also, to the inevicut prices and that, so far from stilling table modern tendency to form larger units competition, its competitors have actually of business organization and to “integrate* thrived. Then Justice McKenna gets in at various lines of business which are complethis point one of his plausible antithetical mentary to each other. Justice Mckenna expressions intended to demolish the gov- delights in the word "integration” and adernment's contention at one blow. After | mits that the idea involved in that word is the referring to the success of defendant's the basis and justification for the ecocompetitors the Court says that “if this suc nomic processes involved in so-called cess was against the competition of defend

mergers. It is an advantage to a steel ant, we have an instance of movement

company to own and produce its own against what the government insists was an

iron ore; to operate its own steamship irresistible force; if in consequence of it,

lines for the purpose of tranporting its we have an illustration of the adage that

products; to own its own coal mines and 'competition is the life of trade' and is not

coke ovens; to have separate mills to procasily repressed. The power of monopoly

duce different kinds of merchantable iron in the corporation under either illustration

products instead of producing different is an untenable accusation."

kinds in one mill. To thus “integrate" 2 The Court by thus requiring the govern business with its supplies and with its marment to prove acts of the defndant in re kets, huge capital and abundant resources straint of trade as well as a "condition of are necessary. This argument is familiar monopoly" before it can demand a decree to every student of economics. It may be of recovery makes it practically impossible true in principle and we are not gain-sayfor the government to prevent the monopo ing its truth. But, even if true, its conlies which are now increasing at a rapid clusions run counter to the provisions of rate. One of our correspondents informs the Sherman Act which, however beneficial us of an attempt at the present time to such mergers may be, prohibit all combinamerge all the paint and varnish manufac- | tions which produce a monopoly. The Sherturers in the country. We see no obstacle man Act may be a detriment to the business in the way of such mergers if the element growth of the country from the standpoint of monopoly is no longer sufficient, in view of the economist, but, even so, it is not in the of the Steel Trust Decision, to make a busi province of the Supreme Court virtually to ness combination illegal under the Sher repeal the act by implication. The people man Act. Under this rule, any corporation, might prefer to restrict business in some by a process of benevolent assimilation of particulars in order to secure what they reother firms, may gradually obtain control gard as a greater benefit for themselves. If of certain lines of business, and, if it does the people, speaking through their repre

sentatives, are opposed to the creation of 197; Addyston Pipe Company v. United colossal business organizations by process of States, 175 U. S. 211, 238; Harriman v. the merger of competiting companies, it is Northern Securities Co., 197 U. S. 244, 291; not for the Supreme Court to point out the Union Pacific Case, 226 U. S. 61, 88. While inexpediency of such a policy and the in it was not the purpose of the Act to conjury it might do to our world trade, as demn contracts which in a lawful manner Justice McKenna is so careful to do. seek to expand one's own business and fur

ther legitimate trade, it did intend effectiveThe dissenting opinion of Justice Day

ly to reach and control all conspiracies and contains one paragraph which in the great

combinations or contracts of whatever form clearness of its thought-a notable charac

which unduly restrain competition and unteristic of Justice Day's opinions — thor

duly obstruct the natural course of trade, oughly proves how far astray the majority

or which from their nature, or effect, have of the Court has wandered in the present

proved effectual to restrain interstate comdecision. Justice Day said:

merce. Standard Oil Co. v. United States, "I agree that the Act offers no objection

221 U. S. 1; United States v. American to the mere size of a corporation, nor to Tobacco Company, 221 U. S. 106 ; United the continued exertion of its lawful power, States v. Reading Co., 226 U. S. 324; Straus when that size and power have been ob

v. American Publishers' Assn., 231 U. S. tained by lawful means and developed by natural growth, although its resources, cap

222 ; Eastern States Lumber Association v. ital and strength may give to such corpora

United States, 234 U. S. 600. tion a dominating place in the business and industry with which it is concerned. It is

If the Steel Trust decision prevails the entitled to maintain its size and the power that legitimately goes with it, provided no

distinction between “good trusts” and “bad law has been transgressed in obtaining it., trusts,” once the subject of ridicule and the But I understand the reiterated decisions of butt of satirical jibes will have become esthis court construing the Sherman Act to

tablished in the law by the solemn prohold that this power may not legally be derived from conspiracies, combinations, or

nouncement of four judges of the Supreme contracts in restraint of trade. To permit Court. If the United States Steel Corporathis would be practically to annul the Sher tion is not a monopoly in restraint of trade, man Law by judicial decree. This principle neither was the American Tobacco Comhas been so often declared by the decisions

pany, nor the Standard Oil Company, nor that it is only necessary to refer to some of them. It is the scope of such combinations,

Swift and Company, which recently, and, as and their power to suppress and stifle com it seems, to us, rather prematurely, in view petition and create or tend to create monop of this decision, submitted to a decree of olies, which, as we have declared so often

partial dissolution. If monopolies, iras to make its reiteration monotonous, it was the purpose of the Sherman Act to respective of whether they are good or bad, condemn, including all combinations and are not prohibited by the Sherman Act, then conspiracies to restrain the free and natural iet us quit talking about monopolies as beflow of trade in the channels of interstate commerce.

ing illegal but confine the inhibitions of the

Sherman Act to such transactions which in Justice Day is sustained in his statement themselves effect a restraint of trade. But of the construction of the Sherman Act by in such event the dissolution of a combinathe cases which during the last thirty years tion into its constituent companies would have construed this law. Pearsall v. Great hardly be the proper remedy unless the merNorthern Ry. Co., 161 U. S. 646; Trans-ger itself, by reason of effecting a monopMissouri Freight Assn. Case, 166 U. S. 290, oly, whether accompanied by acts in actual 324; Northern Securities Case, 193 U. S. ' restraint of trade or not, is illegal.

NOTES OF IMPORTANT DECISIONS. | sary and that all plaintiff would be allowed to

exact was an agreement providing that the de

fendant, while connected with a competing busVALIDITY OF RESTRICTIONS IN RE

iness, should not solicit trade from persons who STRAINT OF EMPLOYMENT UNNECESSARY

were customers of the plaintiff at the store TO PROTECT THE PROMISEE.-Attorneys

where defendant was formerly employed. This

rule follows the English rule announced in sometimes overreach themselves by attempting

Konski v. Peet (1915), 1 Ch. 530. too much. This is especially true in the case of stipulations in a contract in restraint of

The present case, as we said in the beginning, trade or employment; in such matters it is

should be a warning to attorneys not to exact best not to demand too much. This caution

too much from an employe on leaving a former finds ample justification in the plaintiff's com

employment. This warning is emphasized by plete defeat in the case of Stores v. Abrams, 108

the Supreme Court of Rhode Island in the case Atl. Rep. 541. In this case plaintiff entered

of Herreshoff v. Boutineau, 17 R. I. 7, 19 Atl. into a contract to employ defendant as man 469, 8 L. R. A. 469, where the Court said: ager of its store in Bridgeport, Conn., in consideration of which the latter agreed not to en

“Covenantees (in contracts in restraint of

trade between employer and employe) desiring gage himself in the same line of business or

the maximum protection have, no doubt, a dif"connect himself with any firm engaged in

ficult task. When they fail, it is commonly be business similar to that of the party of the first cause, like the dog in the fable, they grasp too part, for a period of five years." The Court much, and so lose all.” held that this restriction against the right of A recent English decision (Hepworth v. Ry. employment was too severe and void as con. ott, 89 L. J. Ch., p. 69) holds that the contract trary to public policy. The Court said:

of a "movie" actor not to use his pseudonym, "Under the law, restrictive stipulations in

"Stewart Rome,” in any capacity after the end agreements between employer and employe are of his employment was invalid as "extending not viewed with the same indulgence as such

beyond what was reasonably necessary for the stipulations between a vendor and vendee of a

employer's protection." business and its good will.

"In the latter case, the restrictions add to the value of what the vendor wishes to sell, and also add to the value of what the vendee

RIGHT TO USE EVIDENCE GAINED BY purchases. In such cases also the parties are presumably more nearly on a parity in ability

UNLAWFUL SEARCH AND SEIZURE.-Evito negotiate than is the case in the negotiation dence secured by an unlawful search and seizure of agreements between employer and employe.

cannot be used nor required to be produced and "In a restrictive covenant between a vendor

this rule shall hereafter apply to corporations of a business and the vendee, "a large scope for freedom of contract and a correspondingly large

as well as to persons is the important rule anrestraint of trade" is allowable. In a restrictive nounced by the United State Supreme Court in covenant between employer and employe on the

the recent case of Silverthorne Lumber Co. v. other hand, there is "small scope for the restraint of the right to labor and trade and a

United States, 40 Sup. Ct. Rep. 182. correspondingly small freedom of contract.”

In this case after the two Silverthorne The general policy of a strict construction

brothers had been arrested under an indictment ! of contracts in restraint of re-employment as

charging a single specific offense, their place against the former employer is well settled by

of business was searched without a warrant. authority. See Rogers Mfg. Co. v. Rogers, 58

The trial court ordered the papers returned, Conn. 356, 20 Atl. 467, 7 L. R. A. 779, 18 Am.

but permitted the district attorney to make St. Rep. 278; Eureka Laundry Co. v. Long, 35 copies and photographs. The Silverthorne L. R. A. (N. S.) 119, note; Simms v. Burnette,

brothers were ordered to bring the original 16 L. R. A. (N. S.) 389, note; Herbert Morris,

books and documents before the grand jury. Limited, y. Saxelby, (1916) 1 A. C. 688; Mason

On their refusal to do so they were adjudged v. Provident C. & S. Co., (1913) A. C. 724; Nor

as being in contempt, the brothers sentenced denfeldt v. Maxim H. G. & A. Co., (1894) A.

to imprisonment and the corporation fined. On C. 565; Id., 11 Reports, 27; Konski v. Peet, appeal the Supreme Court, by a vote of seven (1915) 1 Ch. 530; Herreshoff v. Boutineau, 17

to two (the Chief Justice and Justice Pitney R. I. 3, 19 Atl. 712, 8 L. R. A. 469, 33 Am. St. I dissenting), reversed the judgment of contempt Rep. 850.

and held that evidence thus illegally secured On the question of the validity of the par could not only not be used by the Government ticular restrictions in this case the Court de but the defendant himself could not be required clared that it went far beyond what was neces- | produce evidence, knowledge of which was

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