258
THE GREEN BAG
Sherman v. State, 4 Ohio Cir. Ct. Rep. 53 1; Turner v. State, 1 Ohio State 422; Hill v. State, 42 Neb. 505, 60 N. W. 916; People v. Glynn, 54 Hun 332, 7 N. Y. S. 555; McDaniel v. State, 16 Miss. 402, 47 Am. Dec. 93, as defining what con stituted robbery and cited other cases to show that forfeitures are abhorred in the law and especially in insurance cases. MONOPOLIES. (Contracts in restraint of Trade.) U. S. C. C. for Ohio. — In Continental Wall Paper Company v. Lewis Voight & Sons Company, 148 Fed. Rep. 939, the action was to recover a balance due on account of wall paper sold and delivered to defendants. The defense turned mainly on the contention that defendants were compelled to become parties to an illegal combination, and that the contract on which the suit depended for the price and terms of the sale constituted one of the agreements, which went to make up the illegal combination repre sented by the plaintiff company. It appeared that plaintiff corporation was formed to control the output of ' 98 per cent of the wall paper mills in the United States. The combination was composed of manufacturers and wholesalers of wall paper throughout the country. Under the contract between plaintiff corporation and the manufacturers, plaintiff was the nominal seller of all the paper manufactured by the combine, though, it was actually purchased from various jobbers of mills within the combination. Defend ants, wholesalers of wall paper, were compelled to enter the combination, and agree to purchase and sell wall paper in accordance with the mon opolistic terms of the contract, and purchased paper from various members of the combine for which plaintiff brought the action. The court stated in its discussion of the question involved that the vital issue was the bearing of the fact that the plaintiff was but the corporate hand of an illegal combination under the Anti-trust Law of 1890, on the liability of the defendants for the price of wall paper brought from the illegal com bine. After quoting from the contract, to the effect that the vendor was to have the right to select the jobbers through whom the goods man ufactured by it were to be distributed, and to designate the amount of its goods such jobbers should buy, the court continued, "Thus the declaration in this case is on an account which shows purchases by the defendants from manydifferent members of the combination and the amount bought from each. But the plaintiff sues for the aggregate balance due on the several purchases. This action, it seeks to maintain, not on any averment of its assignment by the several vendors to it, but as on an account with it, and
not the vendors. These and other considera tions lead us to the conclusion that the several agreements referred to between the parties con stitute one contract, and that the general purpose of the design and the undoubted result was to establish an illegal combination of manufacturers and wholesale dealers in restraint of trade," and that since plaintiff was bound to rely on the combination contract to show its capacity to sue, the illegality thereof constituted a defense to the action. PROPERTY. (Ejectment — Telephone Wire.) N. Y. C. of A. — In the case of Butler v. Frontier Telephone Company, 79 N. E. Rep. 716, the court passes on the question as to whether eject ment will- lie to compel the removal of a tele phone wire stretched across private property but not in any place resting thereon. After stating generally things necessary to support the action of ejectment, the court says: " The serious ques tion is whether he [plaintiff] was deprived of possession to the extent necessary to authorize ejectment." It was unable to find that the pre cise question had ever been passed upon and said that some of the courts had held that the action would lie in cases of projecting cornices and eaves: (Murphy v. Bolgar, 60 Vt. 723, 15 Atl. 365, i L. R. A. 309; McCourt v. Eckstein, 22 Wis. 153, 94 Am. Dec. 594; Stedman v. Smith, 92 Eng. C. L. 1.) while other courts had come to an oppo site conclusion. (Nowalk, H. & L. Co. v. Vernon, 75 Conn. 662, ss Atl. 168, 96 Am. St. Rep. 246; Rasch v. Noth, 99 Wis. 285, 74 N. W. 820, 40 L. R. A. 577, 67 Am. St. Rep. 858.) Proceeding upon the well settled theory of law that the ownership of land extends upward to an indefinite extent and that the extent of obstruction is only one of degree, it was held that the action would be sustained and judgment was thereupon ren dered for plaintiff. PUBLIC SERVICE COMPANIES. (Refusal to Serve.) N. Y. — In Benson v. American Illu minating Co., 102 N. Y. S. 206, it is held that where, after an electric company has wired an office for light, the customer makes defective con nections with other wires causing danger of fires and refuses to remedy it, the company may shut off the current without liability to the customer therefor. The plaintiff, who was a dentist by profession, sued for damages occasioned by the defendant company in refusing to furnish elec tricity for a certain period. It appeared that defendant company had installed its wires for the use of plaintiff. Plaintiff attached additional wires for the further use of the current and was informed by the defendant that the wiring he had done himself was defective and dangerous.
