THE OPEN MARKET charge a higher price to those who deal with a rival — may a rival who is thus driven out of business say that this is unfair com petition? This issue must again be decided upon the balance of social advantage. A rather similar case is John D. Park & Sons Company v. National Wholesale Drug gists' Association et al., 175 N. Y. i. The facts in brief were these: The manufactur ers of certain proprietary medicines and an association of wholesale dealers therein en tered into an agreement to sell the goods at a uniform jobbing price for fixed quantities only to such dealers as would conform to the manufacturers' price list in making sales of goods. All wholesale dealers had the right to purchase the goods from the man ufacturers upon the same terms as members of the association, on agreeing to maintain the prices established by the manufactur ers. Plaintiffs were unwilling to maintain the trade prices upon the medicines they pur chased, but brought this complaint for being charged the "long" price, alleging that it is by reason of the conspiracy of the de fendants that they were unable to get the discount rate. The case was finally dismissed in the Court of Appeals upon demurrer. Some ex tracts from the opinion of Mr. Justice Haight will show the course of the reasoning: "Is this plan against public policy? An active competition and rivalry in business is un doubtedly conducive to the public welfare, but we must not shut our eyes to the fact that competition may be carried to such an extent as to accomplish the financial ruin of those engaged therein, and thus result in a derangement of the business, an inconven ience to consumers, and in public harm. I do not understand that the complaint charges that the manufacturers were compelled to adopt the plan by reason of threats or in timidation on the part of the members of the association. The proprietors might well deem it to be for their best interests to act in accord with the wishes of the druggists, rather than those of the plaintiff. I do not
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understand that it was intended to charge that the plan adopted prohibited druggists from dealing with proprietors or manufac turers who did not adopt the contract plan with reference to the sale of proprietary goods. I am not here going to question the right of the big fish to eat up the little fish — the big storekeeper to undersell and drive out of business the little storekeeper — but I do believe that the little fellows have the right to protect their lives and their business, and if they can, by force of argument and persuasion, induce manufac turers to establish a uniform price." In this last case the argument for the validity of special favors by a combination is stated most attractively for the defend ants when it is said that there is no real pressure exerted by the combination upon any one, simply those outside the combina tion get an advantage if they accept the terms, while they do not get the benefit of the concession unless they conform to the rules. And yet there is in the situation something of the coercion which always exists whenever there is anything of monop olization; but for the declaration of the combination of the retailers, the manufac turers of proprietary medicines would prob ably have sold to rate-cutters who sent in heavy orders at large discounts, whereas now they fear to sell to them at all, except at the retail price. It is therefore a close question as to these cases in this subsection, for although there is 'a danger in allowing discrimination where there is monopoly, there is in this case no obvious coercion exerted by the combination. These are cases upon the border line therefore, and the competition may perhaps be held not unfair without sacrifice of fundamental principle. IV Cases now engage our attention where the disturbance of the industrial peace by the coercion exerted by a combination in its competition is much more serious. What unfortunately is a typical case is seen in
