public, and which tends to create a monopoly.83 So as "any form of combination between corporations, or corporations and natural persons, for the purpose of regulating production and repressing competition by means of the power thus centralized." 84 There may be a tendency to limit the application of the term to so-called "industrial," as distinguished from railroad or other corporations of a public character, restrictions resulting from agreements among corporations of the latter class being designated as pools.85 This distinction is not, however, very rigidly applied.

§ 137. Pools.-Reference has just been made to what may be a tendency to designate as pools rather than trusts, restrictions resulting from agreements in restriction upon competition among railroad or other corporations of a public character, as distinguished from so-called industrial corporations.86 The dis

83 State ex inf. Crow v. Firemen's Fund Ins. Co., 152 Mo. 1, 43; 52 S. W. 595, 607; 45 L. R. A. 363, 376 (1899). See Pocahontas Coke Co. v. Powhatan Coal & Coke Co., 60 W. Va. 508, 520; 56 S. E. 264, 269; 10 L. R. A. N. S. 268, 280; 116 Am. St. Rep. 901 (1907).

84 MacGinniss v. Boston, etc., Consolidated Copper & Mining Co., 29 Mont. 428, 454; 75 Pac. 89, 95 (1904). In People ex rel. v. American Tobacco Co., 2 Chicago L. J. Weekly, 249 (Cook Co. Cir. Ct., 1897?), a "commercial trust" was 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." See also Chicago, Wilmington, etc., Coal Co. v. People, 114 Ill. App. 75, 112 (1904).

The illegality of so-called "voting trusts" is ordinarily based on a different ground from those considered in this treatise. As to such, see Cook on Corporations, 6th ed., § 622.

85 It 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." As to pools, see § 137.

88 In American Biscuit & Manuf. Co. v. Klotz, 44 Fed. 721 (C. C. La., 1891), "pooling" was defined as "an aggregation of property or capital belonging to different persons, with a view to common liabilities and profits," and it was 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." Compare Chicago, Wilmington, etc., Coal Co. v. People, 114 Ill. App. 75, 112 (1904). By § 5 of the Interstate Commerce Act of 1887, it is for

tinction between a pool and a trust is one of form rather than of substance, though it may be that the term pool as ordinarily used has special reference to the element of distribution of profits. Apart from the element of illegality, there seems to be no difference in kind between a pool and an ordinary partnership.

§ 138. Agreements for future delivery.-There is no necessary connection between the question of the legality of agreements for future delivery, and that of the legality of restrictions upon competition. But agreements for future delivery being, as bidden 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, U. S. v. Trans-Missouri Freight Assoc., 58 Fed. 58; 7 C. C. A. 15; 24 L. R. A. 73 (8th C., 1893); Re Pooling Freights, 115 Fed. 588 (D. C. Tenn., 1902). In Interstate Commerce Commission v. Southern Pacific Co., 132 Fed. 829, 846 (C. C. Cal., 1904), "any contract, agreement or combination between different and competing railroads, whereby the volume or quantity of freights each or any shall receive for transportation, is to be determined by or through any conventional means or agency which was intended to and does suppress competition, either in rate or service or competition directly addressed to shippers" was held to be "a traffic pool," within the meaning of § 5. But see reversal in Southern Pacific Co. v. Interstate Commerce Commission, 200 U. S. 536, 557; 26 Supm. 330, 336; 50 L. Ed. 585

(1906). In Tift v. Southern Ry. Co., 138 Fed. 753, 761 (C. C. Ga., 1905), where relief was allowed under § 5 against excessive rates resulting from concert of action among railroad carriers, it was said: "Pooling may be as well effected by a concert in fixing in advance the rates which in the aggregate would accumulate the earnings of naturally competing lines, as by depositing all of such earnings to a common account and distributing them afterwards." 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., 61 Fed. 993; 9 C. C. A. 659 (8th C., 1894). The court said: "The contract removed every incentive to the companies to afford the public proper facilities, 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 serv ice and higher rates." See note on "Syndicates and Pools" in 16 Abb. N. C. 380; article in 16 Harv. Law Rev. 79 (1902-3) by R. L. Raymond.

will presently be seen, so closely incident to corners,87 it becomes desirable, for the purpose of clearness of comprehension at least, to consider the question of their legality. What appears to be the generally accepted doctrine has been thus stated: "A contract for the sale of goods to be delivered at a future day is valid, even though the seller has not got the goods, nor any other means of getting them than to go into the market and buy them; 88 but such a contract is only valid when the parties really intend and agree that the goods are to be delivered by the seller and the price to be paid by the buyer; and if under guise of such a contract the real intent be merely to speculate in the rise or fall of prices, and the goods are not to be delivered, but one party is to pay to the other the difference between the contract price and the market price of the goods at the date fixed for executing the contract, then the whole transaction constitutes nothing more than a wager and is null and void." 89 To make such agreement illegal it must appear that not merely one, but both parties, did not contemplate a delivery, but merely a settlement of differences.90 Agreements for future delivery have taken a great variety of forms, such as what are commonly known as "options," "puts," "calls," etc.91 The question of the legality of such an agreement is ordinarily one of fact depending on the circumstances of the case.92 Of course, in case of the price contracted for being the lower, the damages are payable by the party contracting to sell, and in case of it being the higher, by the party contracting to buy.

§ 139. Corners.-A corner is simply a specific form of an agreement in restriction upon competition. The parties to

87 See § 139.

88 See Dewey on Contracts for Future Delivery, p. 26; 14 Am. & Eng. Enc. of Law, 2d ed., p. 607.

89 Irwin v. Williar, 110 U. S. 499, 508; 4 Supm. 160, 165; 28 L. Ed. 225 (1884). For numerous illustrations of such agreements held illegal, see Dewey on Contracts for Future Delivery; 14 Am. & Eng. Enc. of Law 2d ed., p. 610. In

many States statutes have been enacted in prohibition of such agreements.

90 See Dewey on Contracts for Future Delivery, p. 50; 14 Am. & Eng. Enc. of Law, 2d ed., p. 611.

91 See Dewey on Contracts for Future Delivery, p. 27; 14 Am. & Eng. Enc. of Law, 2d ed., p. 605. 92 See decisions, supra.

such an agreement, which is commonly on an extensive sale, instead of relying on the normal demand for the commodity in question, endeavor to create an artificial demand by means of entering into agreements for future delivery to themselves. Their success depends on those that have agreed to deliver to them becoming unable to procure the commodity for that purpose, by reason of the supply thereof being under the control of the very persons to whom they have contracted to deliver.93 Such inability to deliver makes them liable for damages. It would seem clear on principle that the legality of a corner is to be determined by the tests already stated, though many decisions have proceeded on the assumption that, for the purpose of such determination the question of the legality of the agreements for future delivery is material. As has been said with reference to the distinction between a pool and a trust, the

93 The transactions condemned as "cornering," in Samuels v. Oliver, 130 Ill. 73; 22 N. E. 499 (1889), consisted of buying all the market supply of an article of staple necessity, and entering into contracts for the delivery of a larger amount than could, in the state of the market supply, be delivered. Here it was testified by the president of the Chicago Merchants' Exchange (130 Ill. 84; 22 N. E. 502): "By 'cornering the market,' I mean when parties have contracts on hand for a greater amount than the sellers have cash grain to deliver." In Wright v. Cudahy, 168 Ill. 86; 48 N. E. 39 (1897), a contract was held illegal, as in violation of § 130 of the Criminal Code, making it a crime to "forestall the market by spreading false rumors, to influence the price of commodities therein, or corner the market, or attempt to do so." In the testimony a corner was defined as "where somebody succeeds in buying for future delivery more property of a given kind, than

is possible for the seller to deliver before the day of the maturity of the contract." Similarly a corner in wheat was condemned as illegal in Raymond v. Leavitt, 46 Mich. 447; 41 Am. Rep. 170 (1881). So a corner in oats, Ex parte Young, 6 Bissell, 53; Fed. Cas. No. 18145 (1874); Bank of Montreal V. Waite, 105 Ill. App. 373 (1903). See further as to corners, Wright v. Crabbs, 78 Ind. 487 (1881; wheat); Kirkpatrick v. Bonsall, 72 Pa. St. 155 (1872); Sampson v. Shaw, 101 Mass. 145; 3 Am. Rep. 327 (1869; railroad stock); Foss v. Cummings, 149 Ill. 353; 36 N. E. 553 (1894; corn); Wells v. McGeoch, 71 Wis. 196; 35 N. W. 769 (1888); Klingel's Pharmacy Sharpe, 104 Md. 218; 64 Atl. 1029; 7 L. R. A. N. S. 976; 118 Am. St. Rep. 399 (1906).

V.

That the legality of a corner does not depend on what may have been the common law doctrine with reference to the legality of forestalling or engrossing, see § 123.

distinction between a corner and a pool or a trust is one of form rather than of substance. As the term pool may have special reference to the element of distribution of profits, so it may be that the term corner has special reference to the element of raising price.

§ 140. Agreements for exclusive service, dealing or agency.An agreement for exclusive service, dealing or agency obviously involves the existence of a monopoly as to the particular service, dealing or agency, yet the legality of such an agreement seems never to have been seriously questioned.94 But an agreement