of things is concerned, there might be an infinite variety in such agreements, as to form. Nevertheless, the conditions of business have in practice reduced such agreements to a few generally recognized forms, prominently what are known as pools" and "trusts." A "pool" may be defined as an agreement for the division of profits, illegal as restricting competition. It will be noted that, apart from 66 Drake v. Siebold, 81 Hun (N. Y.), 178; s. c., 30 N. Y. Suppl. 697 (1894). So of the constitution and by-laws of an association of dealers. United States v. Coal Dealers' Assoc., 85 Fed. Rep. 252 (Cir. Ct. Cal., 1898). For an application of the rule allowing a resort to the surrounding circumstances, for the purpose of construing an agreement in writing, see People v. North River Sugar Refining Co., 54 Hun (N. Y.), 354, 377; s. C., 7 N. Y. Suppl. 406 (1889). In United States v. Hopkins, 82 Fed. Rep. 529 (Cir. Ct. Kan., 1897), the monopoly condemned resulted mainly from the enforcement of a "rule of an exchange" composed of persons engaged in the livestock commission business. Such rule prohibited any member from dealing with any person violating any of the rules or regulations of the exchange, or an expelled or suspended member, after notice of such suspension had been issued by the secretary or board of directors. The court, in determining the question of the existence of an illegal monopoly, considered not only "what appeared upon the face of its (the exchange's) preamble, rules and by-laws," but "the entire situation and the practical working and results of the defendants' methods of doing busi ness." It appeared that the enforcement of such rule operated as a "boycott," to drive out of business all independent dealers. In Field Cordage Co. v. National Cordage Co., 6 Ohio Cir. Ct. 615 (1892), similar agreements with others engaged in the same business, were considered. See also as to reading different instruments together, Judd v. Harrington, 139 N. Y. 105; s. c., 34 N. E. Rep. 790 (1893). As to the question of legality being one of law rather than of fact, see § 17. That a contract in restriction of competition is to be strictly construed as against a party complaining of violation, see Wiggins Ferry Co. v. Ohio & Mississippi Ry. Co., 72 Ill. 360 (1874). In Standard Oil Co. v. Scofield, 16 Abb. N. C. (N. Y.) 372 (Supm. Ct., Sp. T., 1885), the rule that all reasonable intendments are to be indulged in, in support of a pleading demurred to, was applied, sustaining the complaint in an action based on a contract claimed to be illegal as "in restraint of trade," i. e., as creating an unlawful restriction upon competition. 1 In American Biscuit & Manuf. Co. v. Klotz, 44 Fed. Rep. 721 (Cir. Ct. La., 1891), "pooling" is defined as "an aggregation of property or capital belonging to different per the element of illegality, there seems to be no difference in kind between a pool and an ordinary partnership. The distinction between a pool and a trust is artificial rather than substantial. In case of a trust, in addition to the agreement for division of profits, the parties to the agreement (commonly, but not necessarily, corporations or stockholders therein) surrender the direct control of the management of the business covered by the agreement, to a central board of "trustees," the interest of such parties being commonly sons, with a view to common liabilities and profits," and it is said that the expression in the Federal anti-trust act, "combination in the form of trust,” “would seem to point to just what in popular language is meant by pooling." By 5 of the Interstate Commerce Act of 1887, it is forbidden to "any common carrier subject to the provisions of this act, to enter into any contract, agreement or combination with any other common carrier or carriers, for the pooling of freights of different and competing railroads, or to divide between them the aggregate or net proceeds of the earnings of such railroads, or any portion thereof." See as to pooling contracts at common law and under this provision, United States v. Trans-Missouri Freight Assoc., 58 Fed. Rep. 58; S. C., 19 U. S. App. 36 (8th Cir., 1893). A pooling agreement among such carriers, entered into prior to such act, was condemned in Chicago, Milwaukee & St. Paul Ry. Co. v. Wabash, St. Louis & Pacific Ry. Co., 27 U. S. App. 1; S. C., 61 Fed. Rep. 993 (8th Cir., 1894). The court say: "The contract removed every incentive to the companies to afford the public proper facili ties, and to carry at reasonable rates, for, under its provisions, a company is entitled to its full percentage of gross earnings, even though it does not carry a pound of freight. The necessary and inevitable result of such a contract is to foster and create poorer service and higher rates." See note on "Syndicates and Pools" in 16 Abb. N. C. 380. 1It is said in Spelling on Trusts and Monopolies, § 109, that "the latter-day 'trust' is but an adaptation of the railroad pool to manufacturing and trading corporations." 2 See Cook on Stock, Stockholders, etc., § 503a, quoted and applied in State ex rel. v. Standard Oil Co., 49 Ohio St. 137, 185; s. c., 30 N. E. Rep. 279 (1892); also article by Prof. T. W. Dwight in 3 Pol. Sci. Quart. 592, 611 (1888), with a discussion of the "Sugar Trust" deed; article by U. M. Rose on "Strikes and Trusts" in 27 Am. Law Rev. 708 (1893); article by S. C. T. Dodd in 7 Harv. Law Rev. 157 (1893). In 1 Harv. Law Rev. 133 (1887), F. J. Stimson defines a trust as a combination of property, real or personal, with powers of management or absolute disposal, or of stock in corporations, in the hands of a few persons," and 66 represented by "trust certificates" received in lieu of stock in the corporations. The legal effects produced in such case by the character of the parties as stockholders, we shall says that "the origin of the word 'trust' seems to have been the wellknown Standard Oil monopoly." In People ex rel. v. American Tobacco Co., 2 Chicago L. J. Weekly 249 (Cook Co. Cir. Ct., 1897?), a "commercial trust" is defined as "a combination of persons, copartnerships or corporations engaged in similar industries, for the purpose of uniting their respective interests under one governing body, invested with the power to limit the production, dictate the sales, and regulate the prices of the articles produced by its agents and members, thereby tending to destroy competition." The so-called "trust "agreements are all essentially similar in form. The following, under consideration and thus described in Bishop v. American Preservers' Co., 157 Ill. 284, 311; s. C., 41 N. E. Rep. 765 (1895), is here presented by way of illustration: "The agreement recites that it is designed by its signers to form a In State v. American Cotton Oil Trust, 40 La. Ann. 8; s. C., 3 So. Rep. 409 (1888), an injunction was refused against dealing in the shares of the American Cotton Oil Trust, the court saying: "If these certificates have been taken as the price or in exchange for $10,000,000 of property transferred to the trust, then, whatever be their validity and effect as shares of stock, whether or not they confer on the holders the privileges of corporate stockholders, and whether or not trust for the purpose of securing co-operation in the business of manufacturing preserves, etc., and of selling and dealing in the same in home and foreign markets." There were nine trustees, six designated by name and authorized to elect three others. "Such trustees are empowered to organize corporations with all or any of the powers specified in the purposes of the agreement; and the stock of such corporations is to be issued to or purchased by said trustees. For this stock the trustees are to issue certificates of trust. The agreement is to go into effect within sixty days from the time those holding the majority of the stock in seven specified corporations, formed or to be formed, shall transfer the same to the trustees. Each signer of the agreement agrees to assign and transfer to said trustees absolutely, all the shares which he may own in said corporations formed or to be formed, and is to they confer any right to participate in the carrying on of any illegal business, yet they undoubtedly do represent an interest in the property referred to, and as such have a legal and real value; and we cannot understand how such property rights can be placed hors de commerce by an injunction." See also, as to the rights of a transferee of a Standard Oil Trust certificate, Rice v. Rockefeller, 134 N. Y. 174; s. c., 31 N. E. Rep. 907 (1892). hereafter consider. The legal difficulties experienced in the organization and conduct of such trusts, have led to their disuse, and combined action to restrict competition is now commonly through the medium of corporate organization. The original term "trust" is, however, commonly applied to the new forms of combination. receive therefor, not money, but trust certificates, equal to the appraised amount of the earning capacity of his stock, as fixed by the trustees and the stockholder. The trustees are authorized to purchase in the same way, by the issue of trust certificates, other stocks of the same companies, and also the property and business of any firm or individual engaged in the business of manufacturing and dealing in said products. The trustees are to exercise supervision over the corporations whose stocks are transferred to them, and are empowered to elect themselves directors and officers in such corporations, and procure such management of the same as will be conducive to the interests of the holders of the trust certificates. These trust certificates are divided into shares of the par value of $100 each and are prepared by the trustees. They provide that the holders thereof shall be bound by the terms of the trust agreement, and of the by-laws passed in pursuance thereof, and are intended to show the interest of each beneficiary in the trust. The trustees hold the stocks transferred to them, in trust for the holders of the certificates, and are to receive and hold the dividends or interest upon said stocks, and are to distribute the same by declaring dividends upon the certificates. The stocks so transferred to the trustees are to be held by them for the benefit of all the owners of the trust certificates. The trust is to continue for twenty-five years, subject to the right of seventy-five per cent. of the holders of the certificates to terminate it after the expiration of one year, and of sixty-five and two-thirds per cent. of such holders to terminate it at the end of five years; and the trustees cannot sell or surrender any of the stocks held by them, during the continuance of the trust, without the consent of a majority in number and value of the holders of the trust certificates." See also descriptions of the agreements under consideration in State ex rel. v. Standard Oil Co., 49 Ohio St. 137; s. c., 30 N. E. Rep. 279 (1892); People v. North River Sugar Refining Co., 121 N. Y. 582; s. c., 24 N. E. Rep. 834 (1890); Distilling & Cattle Feeding Co. v. People, 156 Ill. 448; s. c., 41 N. E. Rep. 188 (1895); Gould v. Head, 38 Fed. Rep. 886 (Cir. Ct. Colo., 1889); Same v. Same, 41 Id. 240 (Cir. Ct. Colo., 1890); and see Spelling on Trusts and Monopolies, ch. 12. What are known as car trusts" resemble in name only the trusts now under consideration. See, generally, Ray on Contractual Limitations, p. 248. 1 See § 31. § 27. Agreements to fix price or wages; "corners.”— Leaving for the present out of consideration agreements generally that tend to restrict competition, we confine our attention to agreements to fix price. The fixing of the price of a commodity by a single individual engaged in business, is one of the ordinary incidents of commercial intercourse. But, though the price is fixed by his immediate agency, it is, speaking generally, in reality fixed by conditions beyond his control, that is, by the forces of competition, so that it would be idle for him to seek to establish a price materially exceeding the price so fixed. There is an obvious. distinction between such a case, and that of a single individual fixing the price in the absence of any effect produced by the forces of competition. Now in case of an agreement to fix the price of a commodity, if the parties to the agreement do not constitute so substantial a portion of the whole number of those dealing in such commodity, that the agreement, if executed, can have any material effect upon the price generally, it would seem to follow that there is no illegality in such agreement, there being neither actual injury nor tendency to injury. This is the view taken in National Distilling Co. v. Cream City Importing Co., 86 Wis. 352; S. C., 56 N. W Rep. 864 (1893); Herriman v. Menzies, 115 Cal. 16; s. C., 46 Pac. Rep. 730 (1896). In Herriman v. Menzies it was applied to an agreement of an association of stevedores in San Francisco, "to govern and control the business of master stevedores, to be carried on by its members," with a provision for fixing prices to be charged by members, it not appearing that the parties controlled the business of stevedoring in San Francisco, to the extent of ability to exclude competition or control prices, or that they comprised more than an But where such parties are insignificant fraction of those engaged there in the business. So under the Federal anti-trust act, in United States v. Nelson, 52 Fed. Rep. 646 (Cir. Ct. Minn., 1892); Dueber Watch-case Manuf. Co. v. Howard Watch & Clock Co., 55 Fed. Rep. 851 (Cir. Ct. N. Y., 1893); 35 U. S. App. 16, 28; s. C., 66 Fed. Rep. 637, 644 (2d Cir., 1895); though see United States v. Trans-Missouri Freight Assoc., below. But under an express statutory prohibition of such agreements, it seems immaterial whether or not the parties constitute so substantial a portion. For instances of such prohibition see Clancey v. Onondaga Salt Manuf. Co., 62 Barb. (N. Y.) 395 (1862); also Beechley v. |