acts, on their part, constitutes a conspiracy within the meaning of the Penal Code, and the members of such association are guilty of a misdemeanor. Ordinarily persons in their dealings may adopt such method as they please to regulate the measure of compensation or prices in the future, through the period of the operation of their contracts, but they cannot effectually do so to accomplish an unlawful purpose. As the business of buying and selling coal is in itself legitimate, the fact that the prices adopted between the vendor and the vendee are in furtherance of a scheme of an association to regulate the price thereof would not deny to the seller all remedy for non-payment of the price of the coal delivered by him under such contract; but the contract, so far as the prices therein provided for, are founded or dependent upon the prices fixed by such association, is ineffectual and void. Where it appears that a contract, which is the subject of an action, is void as against public policy, the court will decline to enforce it by judgment, although such infirmity is not pleaded, if the invalidity of the contract appears in the presentation thereof by the plaintiff upon the trial, but if the contract, as alleged and proved by the plaintiff, is valid on its face, the defense that it is in fact against public policy and illegal is not available, unless specially pleaded.1 these facts appeared: In defendant's charter the object of its organization was stated to be the "buying and selling of milk at wholesale and retail." A large majority of the stockholders were milk dealers in the city of New York, and creamery or milk commission men in that vicinity. At the first meeting of its board of directors a by-law was adopted, declaring that said board shall have the power to make and fix the standard or market price at which milk shall be purchased by the stockholders of the company." Acting under this by-law, the board fixed from time to time the price of milk to be paid by dealers. No milk was purchased by defend ant, but it did a commission business, selling milk for farmers to dealers, who would purchase at the price fixed, guaranteeing payment and charging a commission therefor. The prices so fixed largely controlled the market in and about said city. Held, that the evidence justified a finding that the corporation was a combination inimical to trade and commerce, and so unlawful, and that a judgment granting the relief sought was proper. People v. Milk Exchange, 145 N. Y. 267. 1 Drake v. Siebold, 81 Hun, 178. See also Craft v. McConoughy, 79 Ill. 346; People v. Fisher, 14 Wend. § 174. Monopoly under Patent.-A patent, for the time for which the special privilege is granted is, essentially, a monopoly. The idea of a patent is the prevention of any manufacture or sale of the article patented by other parties. The patent confers the exclusive privilege of manufacture and sale. This is not a matter of governmental favor, but a consideration for the labor and money 10; Arnot v. P. & E. Coal Co., 68 N. Y. 558. A combination between independent dealers to prevent competition between themselves in the sale of an article of prime necessity is, in the contemplation of law, an act inimical to trade or commerce, without regard to what may be done under and in pursuance of it, and although the object of such a combination was merely the due protection of the parties against ruinous rivalry, and no attempt was made to charge undue or excessive prices. Where it appears that the parties acted under the agreement, an indictment for conspiracy is sustainable upon trial of an indictment for conspiracy to raise the price of coal at retail and to destroy free competition, the court charged the jury that if the defendants entered into an organization agreement for the purpose of controlling the price and managing the business of the sale of coal, so as to prevent competition in price between the members of the organization, the agreement was illegal, and if the jury found this was their intent, and that the price was raised in pursuance of the agreement, the crime of conspiracy was established. Held, no error. People v. Sheldon, 139 N. Y. 251. See also Hooker v. Vandewater, 4 Denio, 349; Stanton v. Allen, 5 Denio, 434; Saratoga Co. Bank v. King, 44 N. Y. 87; Leonard v. Poole, 114 N. Y. 371; People v. Milk Exchange, 145 N. Y. 267. An agreement, the real nature and purpose of which is to suppress competition in articles of food, and so tends to enhance the price, is contrary to public policy and is void. Certain parties who were brokers and dealers in sheep and lambs, executed an agreement, by its terms organizing an association for the declared purpose "of guarding and protecting their business interests from loss by unreasonable competition," by which they agreed to pool their commissions, except such as should be agreed to be paid to a certain butchers' association, and the association so formed entered into an agreement with the butchers' association, by the terms of which the brokers were only to sell to the butchers, and the butchers to buy only of the brokers belonging to their respective associations. In an action brought by plaintiff, as treasurer of the brokers' association, against one of its members to recover damages stipulated therein for a breach of the agreement, held, that the two agreements were to be taken and considered together; that they were intended to control the markets, fix the price and destroy competition, and so were invalid and not enforceable; that the the public might be prejudiced, and whether they were so, in fact, was not material. Judd v. Harrington, 139 N. Y. 105. expended in the invention of the patented article. In a monopoly of this character there is no restraint of trade. No right of any other party is abridged or in any way infringed. In order to render a monopoly illegal its operation must depose some person or class of persons of some privilege which they had previously enjoyed. But this is not true of a monopoly under a patent right. The patent simply secures to the patentee the reward or, for a limited time, the sole enjoyment of the fruit of his skill and labor in producing the article patented. Moreover, the protection which is given to an individual as a patentee is extended to a combination of individuals or companies which are in possession of patents relating to the same article, provided the combination is not otherwise illegal. In a recent case before the United States Circuit Court for the Northern District of New York, it was held that the fact that a corporation owning letters patent upon a particular kind of machinery has entered into a combination with other manufacturers thereof to secure a monopoly in its manufacture and sale, and to that end has acquired all the rights of other manufacturers for the exclusive sale and manufacture of such machine under patents, will not entitle a stranger to the combination to enjoin the corporation from bringing any suits for infringement against him or his customers.1 * * 1 Strait v. National Harrow Co., right is prima facie only, and that 51 Fed. Rep. 819. The com- the holder must be prepared to plaint alleges that the plaintiffs, maintain it in the courts when atand other persons threatened with tacked, it is still a right on his part suit, do not infringe any of the to sue such alleged violators. The patents of the defendant, but, as present action would convert the was said by Mr. Justice Hunt, in right to sue into a liability to be Celluloid Manfg. Co. v. Goodyear sued, which is quite a different Dental Vulcanite Co., 13 Blatchf. thing. The defendant has 384: To allow the action is to re- a right of action against each one verse the proper position of the of these individuals. It has the parties. Whoever receives letters right to sue the whole of them. It patent from the United States re- has the right to sue any one of ceives thereby a prima facie right them, and to allow the others to go to maintain an action against every undisturbed. While it would not infringer of the right given by such be a highminded theory, I know of letters. While it is true that such no principle that, as a matter of It is to be observed that the basis of this decision is that no rights of third parties or of the public are infringed, and that the combination gave the parties concerned no rights and no power which the individuals had not previously possessed. The monopoly was not created by the combination, but was enjoyed by the interested parties before it was law, would prevent its seeking the feeblest of them all,-the one least able to defend himself,-and to make a victim of him. If that individual shall appear to have infringed upon this defendant's patents, he is liable to the damages, although he may be poor,unable to defend himself,-although others may have offended in a greater degree, and although we may condemn the spirit which selected him as the particular defendant. On principle, this cannot be doubted. See also Asbestos Felting Co. v. United States & F. Salamander Felting Co., 13 Blatchf. 453; Tuttle v. Matthews, 28 Fed. Rep. 98; Kelley v. Manufacturing Co., 44 Fed. Rep. 19; Chemical Works v. Hecker, 11 Blatchf. 552. If the defendant had brought suit against the plaintiffs for some breach of contract or violation of its alleged rights, founded upon the combination agreement, then it might become pertinent to inquire into the character of the combination and ascertain whether the court would enforce any rights growing out of it. But in a suit brought for the infringement of a patent by the owner, any such inquiry, at the behest of the infringer, would be as impertinent as one in respect to the moral character or antecedents of the plaintiff in an ordinary suit for trespass upon his property. Even a gambler, or the keeper of a brothel, cannot be deprived of his property because he is an obnoxious person or a criminal, and it is no defense to the trespass upon it, unless it was removed or destroyed in the suppression of a nuisance, that it was used in carrying on the unlawful occupation. Ely v. Supervisors, 36 N. Y. 297." Ibid., 820. A defendant in a patent suit, who was the manufacturer of certain articles claimed to be an infringement of plaintiff's patent, sought to obtain an order enjoining the prosecution of three suits begun in other districts against its customers, as well as the commencement of new suits, and the sending of letters and circulars to others engaged in the trade, threatening prosecution for selling articles made by the defendart. Held, First, that the prosecution of suits in other districts should not be enjoined, because such suits were begun before this suit, and because comity demanded that application should be made to the court in which such suits were pending. Second, that as the plaintiff might recover substantial damages against the defendant's vendees, in addition to those which he would be entitled to recover against the defendant as manufacturer, the commencement of new suits should not be enjoined. unless irreparable injury was threatened to defendant's business, or there was evidence of malice or bad faith on the part of the plaintiff in commencing such formed. In the opinion in this case, Wallace, Judge, said: "This is a suit wherein the relief demanded is a permanent injunction to restrain the defendant from instituting or prosecuting any action in any court of law or equity against the plaintiffs for the infringement of any letters patent owned by the defendant covering improvements in springtooth harrows, or from instituting or prosecuting any such suits against any person using the spring-tooth harrows manufactured by the plaintiffs. The defendant has demurred to the complaint. In substance the complaint shows that the defendant has entered into a combination with various other manufacturers of spring-tooth harrows for the purpose of acquiring a monopoly in this country in the manufacture and sale of the same, and, as an incident thereto, has acquired all the rights of the other manufacturers for the exclusive sale and manufacture of such harrows under patents, or interests in patents, owned by them respectively. Such a combination may be an odious and wicked one, but the proposition that the plaintiffs, while infringing the rights vested in the defendant under letters patent of the United States, is entitled to stop the defendant from bringing or prosecuting any suit therefor, because the defendant is an obnoxious corporation, and is seeking to perpetuate the monopoly which is conferred. upon it by its title to the letters patent, is a novel one, and entirely unwarranted. The party having such a patent has a right to bring suit on it, not only against a manufacturer who infringes, but against the dealers and users of the suits. And third, that plaintiff had a right to notify persons using his device of his claim, and to call attention to the fact that, by selling or using it, they were making themselves liable to prosecution, and that an injunction would not be ordered unless the language of his letters or circulars was false, malicious, offensive or opprobrious, or they were used for the willful purpose of inflicting an in jury. Kelly v. Ypsilanti Dress Stay Manufacturing Co., 44 Fed. Rep. 19. See also Allis v. Stowell, 16 Fed. Rep. 783; Booth v. Seevers, 19 Pat. Off. Gaz. 1140; Birdsell v. Hagerstown Agricultural Mfg. Co., 1 Hughes (U. S.), 64; Ide v. Ball Engine Co., 31 Fed. Rep. 901; National Cash Register Co. v. Boston Cash Indicator Co., 41 Fed. Rep. 51; Tuttle v. Matthews, 28 Fed. Rep. 98. |