and commerce, in violation of the Federal anti-trust law and the anti-trust law of the Territory of Oklahoma, and that it is the design of the Gulf Compress Company to increase the charge of compressing cotton, and that it will be able to enforce such charges by reason of the fact that it will control all of the compresses in the Territory.

There was a demurrer to the petition, which was overruled. An answer was then filed, which in detail asserted the validity of the proceedings preceding the execution of the lease; that the company was indebted in the sum of $17,250-$6,000 to the Shawnee National Bank and $11,250 to the Webb Press Company, Limited, which was past due; that its creditors were pressing for payment, and that the lease was necessary in order to procure money by which to pay the Shawnee Bank and to secure the extension of time on the indebtedness due the Webb Press Company, and that for these reasons the negotiations for the lease were entered into and the lease finally made. And it is alleged that the consideration paid was fair and reasonable and for the best interest of the stockholders of the Shawnee Company; that defendants could procure said second mortgage money in no other way, and that the property of the Shawnee Company would have been sold at a great sacrifice unless the lease had been made.

It is alleged that appellees are firms of cotton buyers, and in order to obtain an unfair advantage over other buyers have conspired together for the purpose of forming a monopoly of all the compresses in the Territory and destroying competition in compressing, and, in order to carry out the conspiracy, have, for more than six months, endeavored to obtain a majority of the stock of the Shawnee Company, and, knowing that Beatty and Stubbs were involved and in need of money, have in all ways oppressed said Beatty and Stubbs to compel them to sell their stock to appellants for an inadequate consideration and conspired to compel the Shawnee Company, knowing it was involved and its demands pressing, to sell and convey its property to them for the inadequate consideration of $25,000.

Argument for Appellants.

209 U. S.

And it is alleged that the lease was made to defeat such conspiracy. Other plans of the appellees to harass the Shawnee Company are averred.

The case went to trial on the issues thus formed and resulted in a judgment for defendants (appellants here). The judgment recited that "the court having heard all the evidence offered and being fully advised in the premises finds for the defendants and against the plaintiffs that the allegations of the petition of the plaintiffs are not supported by the law and the evidence."

A motion for a new trial was denied and the case was then taken to the Supreme Court of the Territory, which court reversed the judgment of the court below, and the case was remanded to the District Court, with instructions to that court to render judgment for plaintiffs in the case (appellees here) in accordance with the opinion of the Supreme Court, and the prayer of the amended petition.

Mr. B. B. Blakeney, with whom Mr. G. T. Fitzhugh was on the brief, for appellants:

An act is not necessarily invalid because in restraint of trade, when the restriction of trade is an ancillary or incidental result.

To be condemned by the law a contract must be an agreement between the parties to restrict trade, and such contract is invalid, whatever may be the result of its operation. If a purchaser buys one or more compresses and operates them as his own property, competition is to that extent restricted, but being incidental, such contract is not invalid, and will not be held invalid because the purchaser may have taken a contract from the seller obligating the seller not to carry on or resume such business. Such provisions are usual and have been sanctioned by the courts. Fowle et al. v. Park et al., 131 U. S. 88; Gibbs v. Gas Co., 130 U. S. 396; Cin., P. B. S. & P. P. Co. v. Bay et al., 200 U. S. 179; United States v. Joint Traffic Association, 171 U. S. 505; Bement & Sons v. National Harrow Co.,

209 U. S.

Argument for Appellants.

186 U. S. 70, 92; Navigation Company v. Windsor, 20 Wall. 64, 68; Diamond Match Co. v. Roeber, 106 N. Y. 473; Tode v. Gross, 127 N. Y. 480; Beal v. Chase, 31 Michigan, 490; Hubbard v. Miller, 27 Michigan, 15; National Ben. Co. v. Union Hospital Co., 45 Minnesota, 272; Whitney v. Slayton, 40 Maine, 224; Pierce v. Fuller, 8 Massachusetts, 222; Richards v. Seating Co., 87 Wisconsin, 503; National Enameling & Co. v. Haveman, 120 Fed. Rep. 415; United States v. Addyston P. & S. Co., 29 C. C. A. 141; S. C., 85 Fed. Rep. 271; Davis v. Booth, 131 Fed. Rep. 31, 37; S. C., 127 Fed. Rep. 871; In re Greene, 52 Fed. Rep. 104; Chicago, St. L. &c. Ry. Co. v. Pullman, 139 U. S. 79; Jarvis et a!. v. Knapp, 121 Fed. Rep. 39; Booth et al. v.. Davis, 127 Fed. Rep. 871, and cases cited; Carter v. Alling, 43 Fed. Rep. 208; Harrison v. Refining Co., 116 Fed. Rep. 304; State v. Shippers Compress &c. Co., 95 Texas, 603; S. C., 69 S. W. Rep. 58.

The statutes of Oklahoma expressly authorize a contract of this character. Wilson's Revised and Annotated Statutes of Oklahoma, §§ 819, 820.

Both of these statutes were adopted from the statutes of California and have been frequently construed by the Supreme Court of that State. Brown v Kling, 101 California, 295; Gregory v. Speiker, 110 California, 150; Ragsdale v. Nagle, 106 California, 332; City Carpet Beating &c. Works v. Jones, 102 California, 506; Vulcan Powder Company v. Hercules Powder Company, 96 California, 510.

Under these sections of the statute one who leases a compress and its good will may enter into a contract to refrain from carrying on a similar business within a specified county. The contract of lease in controversy limits such competition to fifty miles.

The evidence did not disclose whether a radius of fifty miles would have carried it without the boundaries of the county or not, but if fifty miles was an excessive restriction, the excess only was invalid and the restriction might be enforced within the limits of the law.

Argument for Appellees.

209 U.S.

Such a contract being valid could not serve as a basis for concluding that it would be against public policy by creating an unnecessary restraint of trade, preventing competition and creating a monopoly.

The court below overlooked a well recognized principle which would control in any event in the disposition of this case. If the Gulf Compress Company itself was a monopoly, the Shawnee Compress Company could not for that reason prevent the specific performance of a contract for sale or lease, and, a priori, the minority stockholders could not interpose to prevent such performance. Trenton Pottery Co. v. Olyphant, 51 N. J. E. 507; Diamond Match Co. v. Roeber, 106 N. Y. 473; Metcalf v. American School Furniture Co., 122 Fed. Rep. 115– 120; Connolly v. Union Sewer Pipe Co., 184 U. S. 547; Wiloughby v. Chicago Junction Ry. Co., 50 N. J. 656.

Mr. James R. Keaton and Mr. Andrew Wilson, with whom Mr. John W. Shartel, Mr. Frank Wells and Mr. Noel W. Barksdale were on the brief, for appellees:

The contract of lease from the Shawnee Compress Company to the Gulf Compress Company, of April 26, 1905, tended to create a combination unreasonably in restraint of trade, the prevention of competition and the establishment of a monopoly, therefore being against public policy. 26 Stat. at Large, 209, c. 647, § 3; Wilson's Statutes of Oklahoma, §§ 819, 820. The contract is illegal under the common law, also, which declares all contracts in unreasonable restraint of trade to be contrary to public policy and void.

Under the act of Congress above referred to not only contracts in unreasonable restraint of trade, but every contract in restraint of trade is condemned. See Pocahontas Coke Co. v. Powhatan Coal &c. Co., 60 W. Va. 508; S. C., 56 S. E. Rep. 264; Addyston Pipe & Steel Co. v. United States, 175 U. S. 211. In view of the evidence, it certainly cannot be said that any portion of the lease would unquestionably have been entered into regardless of the provisions for illegal restraint and hence

the entire contract must fall. Okla. Stat. 1893, § 810; Wilson's Ann. Stat. § 767; Bishop v. Palmer, 146 Massachusetts, 469; Western Wooden-Ware Assn. v. Starkey, 84 Michigan, 76; Saratoga Co. Bank v. King, 44 N. Y. 87; Consumers' Oil Co. v. Nunnemaker, 142 Indiana, 560; More v. Bonnet, 40 California, 251; Frost v. More, 40 California, 347.

A contract based upon several considerations, one of which is unlawful, is void. Edwards Co. v. Jennings, 89 Texas, 618; Gage v. Fisher, 5 N. D. 297; Collins v. Merrell. (Ky.), 2 Met. 163; St. L. J. & Co. R. R. Co. v. Mathers, 104 Illinois, 257.

Furthermore, these provisions, in connection with the undisputed testimony to the effect that one of his purposes in procuring the execution of said lease on behalf of the Gulf Compress Company was to prevent unreasonable or unnecessary competition, renders the entire lease contract void, under § 3 of the Sherman law which applies to trade and commerce within the Territories as well as to interstate commerce. Northern Securities Co. v. United States, 193 U. S. 196; Western WoodenWare Association v. Starkey, 84 Michigan, 76; Santa Clara Val. M. & L. Co. v. Hayes, 76 California, 387; Pacific Factor Co. v. Adler, 90 California, 110; Anheuser-Busch v. Houck, 88 Texas, 184; State v. Distilling Co., 29 Nebraska, 700.

MR. JUSTICE MCKENNA, after making the foregoing statement, delivered the opinion of the court.

The Supreme Court of the Territory, in its opinion, discussed only two of the questions urged upon its consideration, to wit (1) the legal power of the Shawnee Compress Company to execute the lease; and (2) the purpose in its execution to secure a monopoly of the business of compressing cotton and to unlawfully restrict competition. Of the first the court said: "We find no express authority to lease set out in the articles of incorporation, but we are nevertheless of the opinion the weight of authority is that when a strictly private corporation finds it cannot profitably continue operations it may lawfully make a lease of its entire property for a term of years."