2. Parties are to be given the widest latitude to make contracts with reference to their private interests, and the court is not at liberty to indulge in inferences which would restrict parties in the right to combine their interests. do not include all of a commodity or trade, or create such restrictions as to materially affect the freedom of commerce. The supreme court of Illinois says in People's Gas Light & C. Co. v. Chicago Gas Light & C. Co., 20 Ill. App. 492: The tendency of the courts is to regard contracts in partial restraint of competition with less disfavor than formerly, and the strictness of the ancient rule has been greatly modified by the modern cases.' Maule, J., in Proctor v. Sargent, 2 Scott, N. R. 289, remarked that many persons who are well informed upon the subject entertain an opinion that the public would be better served if, by permitting restrictions of this sort, encouragement were held out to individuals to embark large capitals in trade, and that it would be expedient to allow parties to enter into any description of contract for that purpose that they might find convenient.' Greenhood, Pub. Pol. 689, and cases cited. And in Skrainka v. Scharringhausen, 8 Mo. App. 522, it is said: "The old doctrine of the common law that contracts in restrain of trade are void is no longer to be rigorously insisted upon precisely as it was insisted upon in the earlier cases in which it was announced. It has been modified by the more recent decisions, as the laws of trade have become better understood during the development of our commercial system, and the changes which have been introduced in the social system. Presbury v. Fisher, 18 Mo. 59; Long v. Towl, 42 Mo. 545, 97 Am. Dec. 355. It is not that contracts in restraint of trade are any more legal and enforceable now than they were at any former period, but that the court looks differently at the question as to what is a restraint of trade.' “We find nothing in the terms of the present agreement which would necessarily work an unreasonable restriction in the manner of conducting the business in question, or which would necessarily interfere with the freedom or right of others not parties to the contract to engage in and carry on such business. The parties themselves, it is true, have combined their business as severally carried on by them, and have agreed to be bound by a schedule or rate of charges to be fixed by the associa tion; but this in itself is not an unlawful restraint of trade so long as it does not appear that the rates to be charged are unreasonable, or the restrictions such as to preclude a fair competition with others engaged in the business. In Collins v. Locke, L. R. 4 App. Cas. 674, it is held that where the object of an agreement was to parcel out the stevedoring business of the port of Melbourne among the parties to it, and so prevent competition, at least among themselves, and reasonably keep up the price, it was not invalid, though its effect might be to create a partial restraint upon the power of the parties to exercise their trade. In Master Stevedores' Ass'n v. Walsh, 2 Daly, 1, where an agreement not materially unlike the present was entered into between master stevedores, fixing a rate of prices to be charged by the members in their business, and making a penalty for any member doing work for less, and an action was brought to enforce 3. The invalidity of agreements providing for such combinations is never to be inferred but must be made to appear clearly. 4. Combinations between individuals or firms for regulating prices and competition are not monopolies, and are not unlawful as in restraint of trade, so long as they are reasonable and do not include all of a commodity or trade, or create such restrictions as to materially affect the freedom of commerce. such penalty for a default by one of the members, it was held that such an association was not an unlawful combination, as injurious to trade or commerce, nor the restrictions unlawful, as being in restraint of trade. 'An agreement between a number of persons to act concertedly in fixing prices at which they will sell a particular product in a particular city is not illegal, as being in restraint of trade, unless it appears that they have a monopoly of that product. Ray, Contractual Limitations, p. 223, and cases there cited. See also People's Gas Light & C. Co. v. Chicago Gas Light & C. Co., and Skrainka v. Scharringhausen, supra; Ontario Salt Co. v. Merchants' Salt Co., 18 Grant (U. C.), 542; Central Shade Roller Co. v. Cushman, 143 Mass. 353. In Ontario Salt Co. v. Merchants' Salt Co., supra, speaking of an agreement of similar import between salt manufacturers to keep up the price of that commodity, it is said: 'I know of no rule of law ever having existed which prohibited a certain number (not all) of the producers of a staple commodity agreeing not to sell below a certain price,- and nothing more than this has been agreed to by the parties here.' We find nothing necessarily inconsistent with the doctrines of these cases in the cases cited by appellants. In the case of Pacific Factor Co. v. Adler, 90 Cal. 117, the language relied upon has express reference to contracts 'entered into with the object in view of controlling and if necessary suppressing the supply, and thereby enhancing the price of articles of actual necessity.' In Santa Clara Valley Lumber Co. v. Hayes, 76 Cal. 387, 393, in the language of the court: The very essence and mainspring of the agreement - the illegal objectwas to form a combination among all the manufacturers of lumber at or near Felton, for the sole purpose of increasing the price of lumber, limiting the amount thereof to be manufactured, and give plaintiff control of all lumber manufactured.' In Vulcan Powder Co. v. Hercules Powder Co., 96 Cal. 510, the contract precluded the parties absolutely from shipping to or selling the commodity within a large part of the territory of the United States, and restricted the output of the powder within the territory wherein the parties were at liberty to sell; and it was held that the contract was void, as in restraint of trade. The cases from other states relied upon are as clearly distinguishable from the present as are the foregoing. After a careful review of all the authorities, we are unable to say from the terms of the present contract that it, to any extent, trenches upon the rule of public pol icy invoked, or that there is anything within its provisions which should preclude the parties thereto from enforcing it. This conclusion renders the motion to dismiss the appeal of no consequence." $239. Combination of owners of amusement resorts.Two keepers of amusement resorts entered into an agreement not to pay, for a period of twelve months, any bonus to any club or social organization as an inducement for the selection of the parks or resorts kept by them. Such an agreement is not void as against public policy. "A custom of offering a bonus to certain organizations to hold festivals in this private park or in that must, one would think, have a tendency to enhance the price of admission to the entertainment. An agreement to be no longer a party to such a system of unfair competition strikes us as being eminently in the interest of good morals, fair and free trade, and honest rivalry in business. If dry-goods houses in a certain town should agree to employ no drummers for trade, or hotel-keepers to employ no runners, the contract would be much of the same character, and we see nothing illegal about it."1 1 By the court, in Koehler v. Feuerbacher et al. (1876), 2 Mo. App. 11. The court further said: "We see nothing contrary to public policy in the contract set out in the petition, and think it is clearly one which the court must enforce. What constitutes public policy is not, perhaps, exactly determinable; it is indefinite in its nature, changing with the habits, wants and opinions of society. Forestalling, regrating and engrossing were prohibited by statute in England three hundred years ago, and were considered to be against policy so late as the time of Blackstone. They are now the great basis of profits; are not only practiced every day, but are recognized as the very life of trade, and without them it may be said that commerce, as known amongst us, would be at an end. To buy merchandise on its way to market, to buy provisions in any market and to sell them again in the same market, or within four miles of the place, or to buy up provisions in large quantities for the purpose of selling again, were statutory offenses in England in the mid dle of the last century, and were recognized as offenses at common law long after the repeal of the statute. It is quite safe to consider that they would not now be held to be against public policy. "Contracts in total restraint of trade, or of marriage, against the prohibitions of statutes, to infringe a copyright, to defraud the government or third parties, to oppress third parties or prevent the due course of justice, or induce a violation of public duty, that tend to encourage unlawful or immoral acts, or that are founded on trading with an enemy, are all against public policy and void. And, probably, this is a complete enumeration of the several classes to which contracts against public policy may be reduced. Undoubtedly the courts will give no countenance to an action founded on a contract which comes fairly under any of these heads. But we fail utterly to see that the contract set forth in the petition can be brought under any one of them. It is urged that it is a combination against the public to € 240. Combination of gas companies.- Under the incorporation laws of the state of New York1 the charter of the Buffalo City Gas Company authorized the company to "purchase, acquire, hold and dispose of the stock, bonds and other evidences of indebtedness of any corporation, domestic or foreign, and issue in exchange therefor its stock, bonds or other obligations." Under this power it was held broadly that the Buffalo City Company had the power to make a contract to purchase the stocks and bonds of another gas company which owned a franchise which, if operated in competition with the former company, might be disastrous to its business; and it was also held that the Buffalo City Company might issue its own stock and bonds in payment for the stock and bonds of the rival company.2 1. The purpose of the combination, to secure itself against ruinous competition, is "a lawful purpose" within the meaning of section 42 of the Stock Corporation Law, which provides that no corporation shall issue stocks or bonds except for money, labor done, or property actually received for the use and lawful purposes of such corporation. 2. The contract is not obnoxious to section 7 of the Stock Corporation Law as being a combination with another company for the creation of a monopoly or the unlawful restraint of trade, or the prevention of competition in a necessary of life, especially where it is not shown that the purchasing company does not intend to use the plant or exercise the franchise acquired under the purchase; nor does it effect a practical consolidation of two corporations contrary to the method pointed out by the statute.' keep up prices; but it seems very clear that it is nothing of the kind." 1 Sec. 40 of the Stock Corporation Law (Laws of 1890, ch. 564, as amended by Laws of 1892, ch. 688). 2 Rafferty et al. v. Buffalo City Gas Co. (1899), 37 App. Div. 618. The court of appeals in its opinion said: "It is further said that the contemplated purchase operates to effect a combination with another company for the creation of a monopoly or the unlawful restraint of trade, or the prevention of competi tion in a necessary of life, contrary to the provisions of section 7 of the Stock Corporation Law. A monopoly is not constituted. No exclusive privilege or right as against individuals or corporations to manufacture and sell and distribute gas is acquired. Nor, in a more restricted use of the word 'monopoly,' is that condition brought about by the force of this contract. A more plausible objection to it would be that it is a § 241. The supreme court of Illinois arrived at conclusions somewhat opposed to the foregoing, in a case wherein an information in the nature of a quo warranto was filed by the at contract in restraint of trade to prevent competition, but it is made to appear that that objection is untenable. Contracts that are intended to effect or must necessarily result in an unlawful restraint of trade or the prevention of competition may, under certain circumstances, be enjoined, but whether at the suit of a stockholder against his own company or its directors it is not now necessary to consider. The contract of purchase here involved does not appear on its face to be in unlawful restraint of trade nor to prevent lawful competition. The avowed and apparent purpose of it is to prevent ruinous competition. It is not even shown that the Buffalo City Gas Company does not intend to use the plant of the People's Gas Light Company or to refrain from acting under the franchise of the Queen City Gas Company. "Contracts cannot be said to be in restraint of trade where a purchase otherwise lawful is made by one party of the business and all its incidents of another party, even where the selling party enters into a covenant not to engage in the same business within a determined territory, such covenant being no wider nor broader than is necessary for the protection of the thing sold. (Diamond Match Co. v. Roeber, 106 N. Y. 473.) If such a covenant could be enforced, then the contract, being otherwise legal and unobjectionable, must, of course, be valid. But it is urged that the effect of the contract is to prevent lawful competition. It is not necessarily so. It seems to be a contract which the directors of the Buffalo City Gas Company regarded as necessary, not merely to its prosperity and for the enhancement of its profits, but to the existence of its business. What the rivalry of the only partially developed business of the People's Gas Light Company has done already to the detriment of the Buffalo City Gas Company appears from the papers. A contract made to prevent or avoid destructive competition is not necessarily invalid. It was said in the case of the Diamond Match Co. v. Roeber (supra): 'We suppose a party may legally purchase the trade and business of another for the very purpose of preventing competition, and the validity of the contract, if supported by a consideration, will depend upon its reasonableness as between the parties. Combinations between producers to limit production and to enhance prices are or may be unlawful, but they stand on a different footing.' In People v. North River Sugar Refining Co. (54 Hun, 354) Mr. Justice Barrett says: 'Excessive competition may sometimes result in actual injury to the public, and competitive contracts, to avert personal ruin, may be perfectly reasonable. It is only when such contracts are publicly oppressive that they become unreasonable, and are condemned as against public policy.' And later, it is said by Judge Gray in Vinegar Co. v. Foehrenbach (148 N. Y. 65): But not all combinations are condemned, and self-preservation may justify prevention of undue and ruinous competition, when the prevention is sought by fair and legal methods.' "We are not able to say, and cannot adjudge from what is now before us, that the contract under consideration is anything other than a reasonable one made to prevent the apprehended consequences set forth by the |