liability may be enforced against him, though, as will presently be seen, it is otherwise in case of an agreement related to the illegal restriction.19 § 170. Non-enforcibility of agreement because of relation to restriction. An agreement, legal considered by itself, is frequently non-enforcible because of its relation to an illegal restriction upon competition. Such an agreement may be one between the parties to the illegal restriction and in such case the question is merely one of severability.20 More difficult ques 56 N. W. 864; 39 Am. St. Rep. 902 (1893). So under Federal act. Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 545; 22 Supm. 431, 434; 46 L. Ed. 679 (1902); Hadley Dean Plate Glass Co. v. Highland Glass Co., 143 Fed. 242; 74 C. C. A. 462 (8th C., 1906). To similar effect, Houck v. Wright, 77 Miss. 476; 27 So. 616 (1899). See effect of Connolly v. Union Sewer Pipe Co., discussed in Continental Wall Paper Co. v. Voight, 212 U. S. 227, 260; 29 Supm. 280, 291 (1909). So in proceeding to enforce contract for exclusive employment. Harrison v. Glucose Sugar Refining Co., 116 agreement. The Charles E. Wisewall, 74 Fed. 802 (D. C. N. Y., 1896); affirmed in 86 Fed. 671; 30 C. C. A. 339; 42 L. R. A. 85 (2d C., 1898). See as to insurance of property by member of trust formed for purpose of controlling the price thereof, Springfield Fire & Marine Ins. Co. v. Cannon, 46 S. W. 375 (Tex. Civ. App., 1898). 19 See § 170. 20 In Burlington, C. & N. Ry. Co. v. Northwestern Fuel Co., 31 Fed. 652 (C. C. Minn., 1887), an agreement to make a special rate for shipments of coal reaching a certain amount, being held void, as in restriction upon competition, was Fed. 304; 53 C. C. A. 484; 58 L. R. A. 915 (7th C., 1902). But such a defense has in several instances been made available under the anti-trust acts. See c. XX. In 2 Eddy on Combinations, § 913, it is suggested that such legislation may be unconstitutional and is difficult to apply in practice. In Crystal Ice Co. v. Wylie, 65 Kan. 104; 68 Pac. 1086 (1902), it was held no cause for enhancing damages for breach of a contract for the sale of goods, that the seller had agreed to deliver all the goods manufactured by it to another, in violation of the antitrust law. also held not separable from a provision in the same agreement, not to ship less than a certain amount for less than a certain rate. In Drake v. Siebold, 81 Hun, 178; 30 N. Y. Suppl. 697 (1894), a case of an illegal combination among coal dealers to fix the price, a contract between two parties thereto for the sale of coal at the price fixed by the combination, was held non-enforceable, though it was intimated that the seller was not necessarily precluded from all remedy for non-payment of coal delivered under the contract. See Erie Railway Co. v. Union Locomotive, etc., Co., 35 N. J. Law, 240 (1871); Hunt v. Riverside tions, however, are presented by agreements between a third person and a party to the illegal restriction.21 "Upon the question whether the particular contract sought to be enforced arises out Co-operative Club, 140 Mich. 538; 104 N. W. 40; 112 Am. St. Rep. 420 (1905); 15 Am. & Eng. Enc. of Law, 2d ed., pp. 988-91. See Edwards County v. Jennings, 89 Tex. 618; 35 S. W. 1053 (1896), for an application of the rule that a promise made upon several considerations, one of which is unlawful, is void. For a careful discussion, see Central N. Y. Telephone, etc., Co. v. Averill, 58 Misc. 59; 110 N. Y. Suppl. 273 (Supm. Ct., Sp. T., 1908), where it was held that there could be "no severance of the legal and illegal parts of the contract." 21 Compare American Handle Co. v. Standard Handle Co., 59 S. W. 709, 720 (Tenn. Ch. App., 1900). In Houck v. Anheuser-Busch Brewing Assoc., 88 Tex. 184; 30 S. W. 869 (1895), an agreement by a seller to sell to none but the buyer, was held illegal, as calculated to aid the buyer in producing an illegal restriction upon competition, overruling on this point decision below in 27 S. W. 692 (Tex. Civ. App., 1894). In National Harrow Co. v. Hench, 84 Fed. 226 (C. C. N. Y., 1898), a suit between the same parties as in 76 Fed. 667; 83 Fed. 36; 27 C. C. A. 349; 39 L. R. A. 299 (for facts, see § 120), a suit upon the theory that, holding the legal title to the patents, the complainant could sue the owners of the equitable title, not as licensees, but as infringers, was held not maintainable, the assignment under which the complainant claimed being regarded as part of the general illegal scheme. See also Bobbs-Merrill Co. v. Straus, 139 Fed. 155, 178 (C. C. N. Y., 1905). It may be a question whether the rule that an agreement, legal considered by itself, may be illegal by means of its relation to an ille gal restriction upon competition, was not overlooked in certain decisions under the Federal anti-trust act. See § 199. For instances, however, of such agreements sustained independently of such ct, see National Distilling Co. v. Cream City Importing Co., 86 Wis. 352; 56 N. W. 864; 39 Am. St. Rep. 902 (1893); Olmstead v. Distilling & Cattle Feeding Co., 77 Fed. 265 (C. C. Ill., 1896); affirmed in Dennehy v. McNulta, 86 Fed. 825; 30 C. C. A. 422; 41 L. R. A. 609 (7th C., 1898), where the non-performance of the condition for exclusive trade, was held to prevent recovery on the vouchers, it being held that, the condition being the sole consideration for the promise, if illegal, left no consideration to support it. In Olmstead v. Distilling & Cattle Feeding Co., the court, following Re Greene, 52 Fed. 104 (C. C. Ohio, 1892), erroneously relied on Mogul S. S. Co. v. McGregor, App. Cas. (1892) 25, as an authority, overlooking the distinction there clearly taken between agreements illegal as between the parties, and those giving a right of action to an outside party. This distinction was pointed out in Trenton Potteries Co. v. Oliphant, 56 N. J. Eq. 680, 737; 39 Atl. 923, 945 (1898). As to when agreement may be le of an illegal transaction, the court will not be restricted to a partial statement of the facts, but will consider all the circumstances connected with the transaction." 22 § 171. Remedies by or against agent.-The doctrine already considered precluding enforcibility of an agreement in restriction upon competition has been applied to the case of one seeking recovery for services rendered or money advanced as agent in furtherance of such an illegal restriction.28 On the other hand, an agent who has received money or other property from, or on behalf of, his principal, is held not allowed to assert as against the principal seeking to recover such property that it was received in the course of a transaction illegal as in restriction upon competition.24 § 172. Agreement of sale.-The question of the non-enforcibility of an agreement because of its relation to an illegal gal, though based on executed illegal transaction that furnished a motive, see Brightman v. Bates, 175 Mass. 105; 55 N. E. 809 (1900). 22 Continental Wall Paper Co. v. Voight, 212 U. S. 227, 266; 29 Supm. 280, 294 (1909). 23 Gibbs v. Consolidated Gas Co. of Baltimore, 130 U. S. 396; 9 Supm. 553; 32 L. Ed. 979 (1889). Here the illegality of the restriction was known to the agent. See 15 Am. & Eng. Enc. of Law, 2d ed., p. 1010. So in case of illegal contracts for future delivery. See 14 Id., p. 640. On the other hand, in Wright v. Crabbs, 78 Ind. 487 (1881), recovery was allowed for services as broker in procuring contracts for the purchase of wheat, in ignorance of the fact that the employer was utilizing such contracts for creating a "corner" in the wheat. 24 Murray V. Vanderbilt, 39 Barb. (N. Y.) 140, 152 (1863); Hardy v. Jones, 63 Kan. 8; 64 Pac. 969; 88 Am. St. Rep. 223 (1901); 15 Am. & Eng. Enc. of Law, 2d ed., p. 1009. But in Leonard v. Poole, 114 N. Y. 371; 21 N. E. 707; 4 L. R. A. 728; 11 Am. St. Rep. 667 (1889), an action for an accounting was held not maintainable, notwithstanding the objection that the parties from whom the accounting was sought, were mere agents of the others; this on the ground that the parties, being engaged in a criminal scheme to advance prices, were all principals. But this reasoning seems inconclusive, the proceeding being for the enforcement, not of a criminal, but of a civil liability. See also Keene v. Kent, 4 N. Y. State Rep. 431 (Supm. Ct., Gen. T., 1886), where the same contract was involved. And in Samuels v. Oliver, 130 Ill. 73; 22 N. E. 499 (1889), recovery was not allowed, either by agent against principal, or vice versa, for money received or advanced in promotion of a "cornering" transaction. restriction upon competition has most frequently arisen in connection with agreements of sale. As has already been seen, though the circumstance that one is a party to such an illegal restriction does not necessarily prevent him from enforcing liability or prevent liability being enforced against him under an agreement to sell goods or render services, it is otherwise, in case of an agreement related to the illegal restriction.25 Thus an agreement to sell to a party to such restriction may, because of the existence of such relation, be non-enforcible by such party.26 There is some conflict among the decisions as to the 25 See § 170. 26 In Santa Clara Valley Mill & Lumber Co. v. Hayes, 76 Cal. 387; 18 Pac. 391; 9 Am. St. Rep. 211 (1888), recovery was not allowed for breach of an agreement by a manufacturer of lumber for sale thereof, it appearing that the agreement was part of a scheme on the part of the plaintiff, to form a combination among all the manufacturers of lumber in the vicinity, for the purpose of increasing the price, limiting the supply, and giving the plaintiff the control thereof. By the agreement the defendant was not to manufacture other lumber to be sold in the region, under a penalty. The scheme included similar contracts between the plaintiff and other manufacturers in the region. So in Pacific Factor Co. v. Adler, 90 Cal. 110; 27 Pac. 36; 25 Am. St. Rep. 102 (1891), recovery was not allowed for breach of an agreement to sell and deliver 187,500 grain bags or burlaps, it appearing that the agreement was part of a scheme on the part of the plaintiff to control the supply of grain bags within the State, for the purpose of increasing the price. similar effect, Finck v. Schneider Granite Co., 187 Mo. 244, 269; 86 To S. W. 213, 220; 106 Am. St. Rep. 452 (1905). In Bishop v. American Preservers' Co., 157 Ill. 284, 306; 41 N. E. 765, 772; 48 Am. St. Rep. 317 (1895), in an action of replevin, it appearing that the plaintiff was a party to an illegal combination in restraint of trade, held error to exclude evidence offered to sustain a defense that "the transfer of defendant's goods and machinery and business, by means of a bill of sale to the plaintiff, and the delivery of the shares of stock to defendant, and the redelivery thereof to the trustees of the combination in exchange for trust certificates, and the appointment of defendant as custodian of the property and agent to carry on the business theretofore exclusively his own, were all parts of the illegal scheme, and aids in the accomplishment of the unlawful objects of the trust." So in State v. Nebraska Distilling Co., 29 Neb. 700; 46 N. W. 155 (1890), a conveyance of property was held illegal, as made to a combination formed to restrict competition. In Fisher v. Flickinger Wheel Co., 28 Ohio Cir. Ct. R. 501 (1906), the rights of creditors of a party to an illegal combination being involved, conditions under which such agreement is non-enforcible by the seller. That it is enforcible by him in case of his ignorance of the existence of any illegal restriction seem established.27 And, according to many decisions, it is enforcible by him notwithstanding knowledge by him of the existence of such illegal restriction, it being essential, according to such decisions, that he be a participant in the illegal transaction.28 According to many other decisions, however, mere knowledge seems sufficient.29 Whether, in any instance, the seller "does anything beyond making the sale," 30 so as to be within the doctrine thus stated, seems largely determinable according to the circumstances of the particular case. 31 Sometimes he is quite obvi the court refused to give effect to a sale of personal property by such party, that was illegal as an incident of the combination, the contract of sale remaining executory, because of possession not having been given, though payment had been made. See under Me. (§ 215). Opposed, however, to the above decisions, and to the weight of authority seem Trenton Potteries Co. v. Oliphant, 58 N. J. Eq. 507; 43 Atl. 723; 46 L. R. A. 255; 78 Am. St. Rep. 612 (1899); Metcalf v. American School Furniture Co., 122 Fed. 115, 121 (C. C. N. Y., 1903). See § 169. The latter decision may, however, be sustained within the doctrine forbidding relief against illegal contracts that have been executed. See § 174. 27 In Carter-Crume Co. v. Peurrung, 86 Fed. 439; 30 C. C. A. 174 (6th C., 1898), was sustained an agreement for the sale of the entire product of the seller, in the absence of knowledge by him that this was intended by the buyer as but one step in such an illegal combination. See as to effect of knowledge of seller that goods are to be used for an unlawful purpose, Oli ver v. Gilmore, 52 Fed. 562 (C. C. Mass., 1892). 28 Tracy v. Talmage, 14 N. Y. 162; 67 Am. Dec. 132 (1856). See Arnot v. Pittston & Elmira Coal Co., infra; 15 Am. & Eng. Enc. of Law, 2d ed., p. 987. As to effect of knowledge by lessor of illegality of purpose of lessee, see Brooklyn Distilling Co. v. Standard Distilling, etc., Co., 120 App. D. 237; 105 N. Y. Suppl. 264 (1907); affirmed in 193 N. Y. 551; 86 N. E. 564 (1908). 29 15 Am. & Eng. Enc. of Law, 2d ed., p. 987. 30 See Arnot v. Pittston & Elmira Coal Co., infra. 31 In Arnot v. Pittston & Elmira Coal Co., 68 N. Y. 558, 566; 23 Am. Rep. 190, 194 (1877), recovery was not allowed for coal sold under an agreement that was part of an illegal scheme of the buyer to enhance prices. It bound the buyer to ta e all the coal that the seller might desire to send "north of the State line," to the extent of two thousand tons a month, it being, however, optional with the seller to deliver, and the only consideration for the agreement of the buyer being the agreement of the |