John L. Seager, LL.B., '90, is assistant general counsel of the D. L. & W. R. R. Co., with offices at 90 West Street, New York City. S. J. Kelly, LL.B., '92, is practicing law at 923-925 University Block, Syracuse, N. Y.

Ellis Albert Griffith, LL.B., '93, died on June 13 at Geneva, N. Y., following an illness of two years.

Charles Francis McLindon, LL.B., '93, died at his home in Troy, N. Y. on July 4th, from blood poisoning.

Frank K. Nebeker, LL.B., '95, of Salt Lake City, was summoned to Washington in August to assist the Department of Justice in the prosecution of the I. W. W.

James Harris Vickery, LL.B., '96, who practiced law in Berlin as an international lawyer from 1901 until the outbreak of the war, now has law offices at 3 and 4 Lincoln's Inn Fields, London, W. C.

Judge Charles H. Mayer, LL.B., '98, of the Missouri circuit court, division No. 2, Buchanan county, has resigned from the bench to resume private practice at Sturgis, Mo.

James Gregory Gregg, LL.B., '98, died of pneumonia in February at his home in New York City. Mr. Gregg was a law partner of John T. McGovern, LL.B., 'oo, practicing at 141 Broadway, New York City.

David Percy Williams, LL.B., '98, has been appointed assistant general counsel of the Pittsburgh, Cincinnati, Chicago & St. Louis R. R. Co., with offices at 1215 Syndicate Trust Bldg., St. Louis, Mo.

Ernest G. Lorenzen, Ph.B., '98, LL.B., '99, professor of law in the University of Minnesota since 1914, has been appointed professor of law in the Yale Law School. After his graduation from the Cornell College of Law Mr. Lorenzen studied in Paris, Heidelberg, and Göttingen. He is author of "Cases on the Conflict of Laws" and of numerous articles in American and European Law reviews.

Roy V. Rhodes, LL.B., 'o1, is in practice with offices in the Van Nuys Bldg., Los Angeles, Cal.

Godfrey Goldmark, LL.B., '02, has been appointed an assistant counsel of the New York State Public Service Commission for the First District, of which ex-Justice William L. Ransom, LL.B., '05, is chief counsel.

Rensselaer L. Curtis, Law, '02-'03, lately of the U. S. Treasury department, has been admitted to partnership in the law firm of Decker & Smith of Syracuse. The name of the new firm is Decker, Smith & Curtis, the other members being Frank N. Decker, LL.B., '05, and Jacob G. Smith, A.B., '03.

Alfred Huger, LL.B., '03, who is practicing law at Charleston, S. C., has been appointed Admiralty Counsel to the Federal Shipping Board.

Charles R. McSparren, LL.B., '04, has resigned as counsel to the New York State Tax Department to become associated with the law firm of Morris, Plante & Saxe in New York City.

William L. Ransom, LL.B., '05, formerly a Justice of the City Court of New York and now counsel to the New York Public Service Commission for the First District, was the Fusion candidate for District Attorney of New York County in the recent election.

A. Raymond Cornwall, LL.B., '05, is a member of the law firm of McCartin, Alverson & Cornwall, 43-46 Otis Building, Watertown, N. Y., and postmaster of the city.

Ernest Westervelt Kelsey, LL.B., '05, died at Colorado Springs on September 6.

Ralph S. Kent, A.B., '02, LL.B., '05, has formed a partnership with C. DeForest Cummings and George G. Smith for the general practice of law, under the name of Kent, Cummings & Smith, with offices at 21-25 Dun Bldg., Buffalo, N. Y.

William Eaton Sill, LL.B., '07, is with the State Tax Commission in Albany.

Fred E. Gardner, LL.B., '09, is the junior member of the law firm of Gardner & Gardner, Rochelle, Ill.

The address of A. J. Argue, LL.B., '09, is changed from Tulsa, Oklahoma, to 2532 Main Street, Buffalo, N. Y.

Edward F. Lindsay, LL.B., '09, is now practicing law at 32 Broadway, New York, having recently withdrawn from the firm of Bouvier, Geer & Lindsay.

Charles L. McKelvy, LL.B., '12, is practicing law at Big Timber, County seat of Sweet Grass County, Montana. On May 30 he married Miss Elizabeth Skidmore Sharman at Lethbridge, Alberta.

Howard A. Swartwood, LL.B., '12, is a member of the law firm of Newell, Rhodes & Swartwood, Peoples Trust Company Bldg., Binghamton, N. Y.

James I. Clarke, LL.B., '12, advertising manager of the National Bank of Commerce in New York, served as manager of the advertising bureau in the publicity department of the Liberty Loan Committee for the district of New York during the campaign for sale of the second issue of Liberty Bonds.

R. D. W. Clapp, LL.B., '13, is second vice-president of the First Trust Company of Wichita, Kansas.

Dudley S. Ingraham, LL.B., '13, is purchasing agent of the E. Ingraham Company, clocks and watches, Bristol, Conn.

Hugo Zeller, LL.B., '13, has been admitted to partnership in the law firm of Thomas & Houghton, 111 Broadway, New York.

Leslie H. Groser, LL.B., '13, has left the firm of Bowers & Sands and is now associated with De Forest Brothers, attorneys, at 30 Broad Street, New York.

Cedric Aylwin Major, LL.B., '13, is assistant to the general counsel of the Lehigh Valley Railroad Co., 143 Liberty Street, New York.

A. R. de Jesus, LL.B., '13, was promoted in June from the municipal court of Coamo to the office of judge of the municipal court of San Juan, Porto Rico.

Thomas A. Cookingham, LL.B., '14, is practicing law at 403 Warren St., Hudson, N. Y.

Harry Z. Harris, LL.B., '14, has opened an office at 511 Insurance Bldg., Rochester, N. Y.

J. David McCredie, LL.B., '15, is in business in Aurora, Ill.

W. Manville Johnson, LL.B., '15, has changed his address from Mount Vernon, N. Y., to 73 West Eighty-eighth Street, New York City.

Walter M. Horwitz, LL.B., '15, has been admitted to partnership in the firm of Horwitz & Rosenstein, 115 Broadway, New York City. Roscoe G. Gwilliam, LL.B., '16, has formed a partnership with Reinhard L. Gideon, under the firm name of Gideon & Gwilliam, for the general practice of law, First National Bank Bldg., Ogden, Utah. Arthur I. Abelson, LL.B., '16, is with Abelson & Liberman, wholesale jewelers, Utica, N. Y.

Selby G. Smith, LL.B., '16, is managing clerk with Kenefick, Cooke, Mitchell & Bass, Marine Bank Bldg., Buffalo, N. Y.

Volume III

JANUARY, 1918

Number 2

Contracts to Keep Up the Price on Resale and to Buy or Use Other Articles in Connection with Those Sold

BY ALBERT M. KALES1

I

Suppose a manufacturer whose goods are neither patented nor subject to any copyright and are in competition with similar goods of other manufacturers and not the subject of any public necessity, and who does not occupy any preponderant position in the business in which he is thus engaged, sells his commodity to retail distributors with the covenant by them not to sell, and that the goods are not to be sold by anyone, for less than certain prices. If such a contract is valid, is it enforcible between the parties by injunction? If so, is it enforcible specifically in equity against third parties who take with notice of the restrictive covenant? These are important questions, but they are subordinate to the settlement of the validity of the contract as between the parties.

Before the decision in the United States Supreme Court of the Dr. Miles Medical Co. casela it had been held in England and in several states of the Union-that is to say in a number of common law jurisdictions where the question arose that such a contract was valid, as between the parties so that damages for the breach might be recovered,2 or an injunction against the breach obtained.3 In one case at least the injunction was allowed against third parties who had notice of the contract, and who had procured an original party to the contract to purchase and resell to the defendant so that the defendant might sell for a lower price than that specified.* Recently, however, in the Dr. Miles Medical cases the United States

1Of the Chicago Bar.

1Dr. Miles Medical Co. v. Park & Sons Co., 220 U. S. 373 (1911).

Elliman, Sons & Co. v Carrington & Son, L. R. [1901] 2 Ch. 275; Garst v. Harris, 177 Mass. 72 (1900).

Grogan v. Chaffee, 156 Cal. 611 (1909); Garst v. Charles, 187 Mass. 144 (1905). See also Clark v. Frank, 17 Mo. App. 602 (1885); New York Ice Co. v. Parker, 21 How. Prac. (N. Y.) 302 (1861).

'Garst v. Charles, supra, note 3.

'Dr Miles Medical Co. v. Park & Sons Co., supra, note Ia.

Supreme Court has held that no injunction should issue against the third party who took the commodity with notice of the restrictive agreement. It made no difference that the bill alleged, and the demurrer admitted that the defendant sought to sell the complainant's goods to others who might sell them at cut rates and "thus attract and secure custom and patronage for other merchandise, and not for the purpose of making or receiving a direct money profit," and for this purpose procured the commodities from the complainant's "wholesale and retail agents" by "false and fraudulent representations and statements, and by surreptitious and dishonest methods, and by persuading and inducing directly and indirectly" a violation of their contract. It should also be noted that the decision of the United States Supreme Court did not go on the ground that equity would not give specific performance of a restrictive covenant relating to the disposal of personal property, or that specific performance in general could not be given against a third party who took property with notice of the restriction. The court went solely on the ground that the agreement was illegal between the parties and not enforcible in any kind of an action.

This sharp division of opinion between the United States Supreme Court and the courts of other jurisdictions justifies an examination of the merits of the opposing contentions.

The United States Supreme Court first makes the point that the seller cannot control the passing of title to future purchasers by requiring that title shall pass only at certain prices. Such an attempt, if successful, would, it insists, impose an illegal restraint or forfeiture upon alienation. If this be a sound principle and applicable it would be no answer to it that there is no restriction upon the passing of title, but only a contract as to the price which the purchaser may ask upon a resale. If such an agreement is enforced specifically in equity between the parties and against third parties with notice, there is produced the effect of a restraint on the alienation of the commodity itself. If an attempt to do the latter is illegal, certainly equity would not permit the former. If damages may be collected for the breach of the attempted contract in question there is to a less degree only, a deterrent to alienation. Ignoring, however, the decisive effect of the rule forbidding restraints on alienation, the Supreme Court considers the validity of the arrangement merely as an agreement between the parties. This agreement it finds is illegal because it is one of a scheme of contracts with many retailers which operates as an arrangement between all the retailers to eliminate competition between themselves, and to fix the price at which they will sell a given commodity. This, it is said, is as objectionable