field. The only matter of difficulty is to de termine as a matter of fact what schemes will result in control of the market; for some of these are deep laid, as this discussion will disclose. Upon the whole, few rules in our policy are so thoroughgoing as this against restraint of trade.1 III. Upon this vexed question of combination in restraint of trade the leading case in America without much doubt is India Bagging Association v. Kock (14 La. Ann. 168); the fact?, as they appear from the find ing of the court, are as extreme as can be imagined. In 1856, an association was formed of eight firms in New Orleans, holders of large stocks of India bagging. By the agree ment the subscribers bound themselves not to sell any bagging whatever for three months, except by vote of the majority. This suit was brought against one of the members by the association for selling seven hundred and forty bales in contravention of these arti cles, the agreement providing for ten dollars' penalty for each bale so sold. Mr. Justice Buchanan dismissed this suit in a peremptory manner: "This is a case which ought never to have come before us. The agreement between the parties was pal pably and unequivocally a combination in re straint of trade, and to enhance the price in the market of an article of primary necessity to cotton planters. Such combinations are contrary to public order, and cannot be en forced in a court of justice. It is, therefore, adjudged and decreed that the judgment of the District Court be reversed, and that this 1 The following cases, among others, hold a contract in total restraint of trade unenforceable : Prugnell 7'. Goff, Allyn, 67; Gunmakers i: Fell, Willes, 388; Leighton r. Wales, 3 M. & W. 545; Toby v. Major, 43 Sol.'J. 778; Olivers. Gilmore, 52 Fed. 563; Cravens r. Carter Crume Co., 92 Fed. 429; Fowle v. Farke, 131 U. S. 88; Lumber Co. r/. Hayes, 76 Cal. 387; Craft v McConoughy, 79 Ill. 346; Harrison v. Lockhardt, 25 Ind. 112; Chapín r. Brown, 83 la. 156; Presbury r. Fisher, 18 Mo. 50; Murray v. Vanderbilt, 39 Barb. 140; Grasselli r. Lowden, n Oh. St. 349; George г. Coal Co., 83 Tenn. 455; Fairbank r. Leary, 40 W is. 637.
suit be dismissed, at costs of plaintiff in both courts." This case, it is plain, represents one ex treme—unreasonable suppression of com petition; it will, therefore, fix the limits of the discussion to bring forward for examination a case at the other extreme—reasonable reg ulation of competition. In Stovall v. McCutchen (54 S. W. Rep. 969), the facts were these: In 1895, appellant and appellees, all merchants of Russellville, signed an agree ment as follows: "We, the undersigned, mer chants of Russellville, do hereby agree and obligate ourselves to close our place of busi ness at 6.30 o'clock, beginning May I5th, 1895, and lasting until the first of Septem ber." The pleadings and proof all agreed that the intention of this writing was that the stores were to be closed at 6.30 p. m. of each day during the time specified, except on Sat urdays. After compliance for a few evenings after the I5th of May, appellant notified ap pellees that he declined to further complv with the agreement, but would disregard it. This he did. Appellees instituted this action to compel him to specifically perform the agreement. The opinion of Mr. Justice White was brief, but to the point: "While it is true that contracts in restraint of trade are to be care fully scrutinized, and looked upon with dis favor, all contracts in restraint of trade are not illegal. The restraint here put is but par tial,—very inconsiderable. It is but a few hours, at most, each day, and for three and one-half months, during the extremely hot weather. It has come within the observation of the members of this court that during this season (May 1 5th to September) many mer chants close about 6.30 or 7 p. m. This can not be held to be an illegal restraint of trade." Of the arrangements between competitors to limit competition some are easy to dispose of under these rules, others are not. Whether or not the scheme results in suppression of substantial competition is the test, a question
