As to third parties, they cannot be held liable as general partners.

and there was substituted for it the Uni- appoint auditors, and, in the events speform Limited Partnership Act (Hurd's cified, to call for a dissolution, were apRev. Stat. 1919, chap. 106a, SS 45-75). propriate in a limited partnership. See § The Uniform (General) Partnership Act 19, Act of 1874; § 10, Uniform Limited (id. §§ 1-45) became effective on the same Partnership Act. Under the circumday. The Act of 1874 provided that no stances, these provisions do not indicate limited partnership should be deemed to any intent on the part of Hecht and Finn have been formed until the certificate to become general partners, or support should be filed in the office of the county petitioners' contention that they are liaclerk. The first effort to form a limited ble as partners. partnership was given up. The final effort failed because the certificate was not filed until after the repeal of the Act of Section 16 of the Uniform (General) 1874. Limited partnerships organized Partnership Act provides that: "When under the Act of 1917 are not authorized represents himself, or to do a brokerage business, and no at- consents to another representing him to tempt was made to organize under it. anyone, [561] as a partner in an existHecht and Finn were not partners as ing partnership he is liable to to Marcuse and Morris. It is well settled any such person who has, on the in Illinois that, as between the parties, the faith of such representation, given credit question of partnership is one of inten- to the actual or apparent partnership, tion, to be gathered from the facts and and if he has made such representation circumstances. Goacher v. Bates, 280 Ill. or consented to its being made in a public 372, 376, 117 N. E. 427; National Surety manner he is liable. There was

"..

a person

Co. v. T. B. Townsend Brick & Contract- no such representation of Hecht or Finn ing Co. 176 Ill. 156, 161, 52 N. E. 938; to any person or to the public. On the Grinton v. Strong, 148 Ill. 587, 596, 36 contrary, they were published to the world N. E. 559; Lycoming Ins. Co. v. Bar- as limited partners. It is true that they ringer, 73 Ill. 230, 233, 234; Smith v. were not. But no person could have Knight, 71 Ill. 148, 150, 22 Am. Rep. 94. been misled to his disadvantage by the [560] See also London Assur. Co. v. statement that they were. RepresentaDrennen, 116 U. S. 461, 472, 29 L. ed. 688, tion on mistaken belief that they were 690, 6 Sup. Ct. Rep. 442. The Uniform limited partners was not a holding out (General) Partnership Act provides: "A as general partners. The lack of power partnership is an association of two or of a limited partnership created under more persons to carry on as co-owners a the later act to carry on a brokerage business for profit." Section 6 (1). business gives no additional significance persons who are not partners to the representations. The firm was not as to each other are not partners as to held out as having been organized under third persons." Section 7 (1). “. . that act. The failure to complete the common property or part ownership does organization did not injure any persons not of itself establish a partnership, dealing with the firm. Creditors are as whether such co-owners do or do not share well off as if the limited partnership had any profits made by the use of the prop- been perfected. The $190,000 handed erty." Section 7 (2). "The receipt by a over by Hecht and Finn was not withperson of a share of the profits of a busi-drawn. Hecht and Finn did not intend ness is prima facie evidence that he is a or agree to become general partners. The partner in the business . . . Section things intended and done do not constitute 7 (4). a partnership. They did nothing to estop Hecht and Finn did not carry on the them from denying liability as such. The business of the firm as co-owners or other-case is not doubtful. But if it were, their wise. They had no authority, actual or intent should be followed. Beecher v. apparent, to act for or bind the copart-Bush, 45 Mich. 188, 193, 40 Am. Rep. nership. The agreements of the parties, 465, 7 N. W. 785. See also Post v. their subsequent conduct, the repayment Kimberly, 9 Johns. 470, 502, et seq. To of dividends received with interest, to- hold them liable as general partners would gether with the other facts and circum-give creditors what they are not entitled stances above alluded to, are more than to have, and would impose on Hecht and sufficient to rebut and overcome any in- Finn burdens that are not theirs to hear. ference legitimately resulting from the Moreover, we think that § 11 of the receipt of a share of the profits. The Uniform Limited Partnership Act was provisions of the agreement giving re-applicable and was properly invoked by spondents right to have access to the Hecht and Finn. It provides: books of the firm, to have statements, to "A person who has contributed to the

concerted action unlaw-| individual against whom the concerted ac-
tion is directed.

[For other cases, see Conspiracy, I. in Digest
Sup. Ct. 1908, and in 1918, 1922 Supps.]
[No. 102.]

uary 7, 1924.

3. An act lawful when done by one may become wrongful when done by many, acting in concert, taking on the form of a conspiracy which may be prohibited if the Argued November 27, 1923. Decided Januresult be hurtful to the public or to the| ett, 88 Fed. 873; Great Atlantic & P. Tea Co. v. Cream of Wheat Co. 141 C. C. A. 594, 227 Fed. 46; Mennen Co. v. Federal Trade Commission, 30 A.L.R. 1120, 288 Fed. 774.

Arizona.-Truax v. Bisbee Local, 19 Ariz. 379, 171 Pac. 121.

Colorado.-Master Builders' Asso. v. Domascio, 16 Colo. App. 25, 63 Pac. 782. Connecticut.-State V. Glidden, 55 Conn. 46, 3 Am. St. Rep. 23, 8 Atl. 890. District of Columbia.-American Federation of Labor v. Buck's Stove & Range Co. 33 App. D. C. 83, 32 L.R.A. (N.S.) 749 (opinion of Van Orsdel, J.). Illinois-Wilson v. Hey, 232 Ill. 389, 16 L.R.A.(N.S.) 85, 122 Am. St. Rep. 119, 83 N. E. 928, 13 Ann. Cas. 82.

Indiana. Jackson v. Stanfield, 137 Ind. 592, 23 L. R. A. 588, 36 N. E. 345, 37 N. E. 14.

Louisiana. Graham v. St. Charles Street R. Co. 47 La. Ann. 214, 27 L.R.A. 416, 49 Am. St. Rep. 366, 16 So. 806; Lewis v. Huie-Hodge Lumber Co. 121 La. 658, 46 So. 685.

Mississippi.-Wesley v. Native Lumber Co. 97 Miss. 814, 53 So. 346, Ann. Cas. 1912D, 796.

New Jersey.-Alfred W. Booth & Bro. v. Burgess, 72 N. J. Eq. 181, 65 Atl. 226. New York.-Matthews v. Shankland, 25 Misc. 604, 56 N. Y. Supp. 123; People v. McFarlin, 43 Misc. 591, 89 N. Y. Supp. 527.

Pennsylvania.-Patterson v. Building Trades Council, 11 Pa. Dist. R. 500. Texas. International & G. N. R. Co. v. Greenwood, 2 Tex. Civ. App. 76, 21 S. W. 559.

Vermont.-Boutwell v. Marr, 71 Vt. 2, 43 L.R.A.803, 76 Am. St. Rep. 746, 42 Atl. 607.

|eral, guarantee to the citizen. It is not within the power of the courts to compel an owner of property to sell or part with his title to it, without his consent, and against his wishes, to any particular person."

In United States v. Trans-Missouri Freight Asso. 166 U. S. 290, 41 L. ed. 1007, 17 Sup. Ct. Rep. 540, the court, in speaking of the rights of persons carrying on a private business, as contrasted with the duty of one carrying on a business affected by a public interest, said: "The trader or manufacturer carries on an entirely private business and can sell to whom he pleases; he may charge different prices for the same article to different individuals; he may charge as much as he can get for the article in which he deals, whether the price be reasonable or unreasonable; he may make such discrimination in his business as he chooses, and he may cease to do any business whenever his choice lies in that direction."

This doctrine, however, admits of a probable exception where such refusal affects a necessity of life, or even a staple article of trade, of which no other supply is available.

He may elect to confine his sales exelusively to wholesalers. Great Atlantic & P. Tea Co. v. Cream of Wheat Co. 141 C. C. A. 594, 227 Fed. 46; Mennen Co. v. Federal Trade Commission, 30 A.L.R. 1120, 288 Fed. 774.

He may refuse to sell goods to any except those who buy from him exclusively. Dueber Watch-Case Mfg. Co. v. E. Howard Watch & Clock Co. 14 C. C. A. 14, 35 U. S. App. 16, 66 Fed. 637.

The refusal of a dealer in cotton ties and bagging to sell any ties unless the purchaser will buy from him a corresponding amount of bagging is not unfair competition within the Federal Trade Commission Act, where it does not appear that such dealer holds a monopoly of either ties or bagging, or has ability, purpose, or intent to acquire one, or that the public suffers injury thereby. Federal Trade Commission v. Gratz, 253 U. S. 421, 64 L. ed. 993, 40 Sup. Ct. Rep. 572.

In Locker v. American Tobacco Co. 121 App. Div. 443, 106 N. Y. Supp. 115, it is said: "It is the well-settled law of this state that the refusal to maintain trade relations with any individual is an inherent right which every person may exercise lawfully for reasons he deems sufficient, or for no reasons whatever; and it is immaterial whether such refusal is based upon reason or is the result of mere caprice, prejudice, or malice. It is a part of the liberty of action A manufacturer cannot be required by which the Constitutions, state and Fed- the Federal Trade Commission to accord

N WRIT of Certiorari to the United ment of a method of competition held to

See same case below, 280 Fed. 529.
The facts are stated in the opinion.

the Eighth Circuit to review a judgment Act. Affirmed.
setting aside an order of the Federal
Trade Commission, requiring abandon-
to retailers the same discount which it
allows wholesalers on the same quantity
of goods. Mennen Co. v. Federal Trade
Commission, 30 A.L.R. 1120, 288 Fed.
774.

A retail dealer may stop dealing with a wholesaler because he thinks such dealer is acting unfairly in trying to undermine his trade. Eastern States Retail Lumber Dealers' Asso. v. United States, 234 U. S. 600, 58 L. ed. 1490, L.R.A.1915A, 788, 34 Sup. Ct. Rep. 951.

An individual engaged in a retail business may make it a fixed rule of conduct not to buy from a producer or wholesaler who sells to consumers in competition with himself. Crenada Lumber Co. v. Mississippi, 217 U. S. 433, 54 L. ed. 826, 30 Sup. Ct. Rep. 535.

not a violation of the Federal Anti-trust Act. Union P. Coal Co. v. United States, 97 C. C. A. 578, 173 Fed. 737.

And the refusal to a jobber of the usual discount from the list price in consequence of his noncompliance with the manufacturer's request that he maintain a fixed resale price affords no basis for an action for damages under the Federal Anti-trust Act. Cudahy Packing Co. v. Frey & Son, 171 C. C. A. 661, 261 Fed. 65; Welch Grape Juice Co. v. Frey & Son, 171 C. C. A. 664, 261 Fed. 68, writ of certiorari denied by supreme court, 251 U. S. 551, 64 L. ed. 410, 40 Sup. Ct. Rep. 56.

But the action of a manufacturer in issuing circulars to its trade, suggesting uniform resale prices, both wholesale and retail, to be charged for its product, and in refusing to continue to sell to any dealer who fails to maintain such prices, or who sells to another dealer failing to maintain them, has been held to be an "unfair method of competition" within the meaning of the Federal Trade Commission Act. Federal Trade Commission v. Beech-Nut Packing Co. 257 U. S. 441, 66 L. ed. 307, 19 A.L.R. 882, 42 Sup. Ct.

The inherent right of every individual to refuse to deal with any person, for any reason, or for no reason whatever, includes the right to refuse to deal with one who refuses to comply with his wishes as to the price at which his products shall be resold. See United States v. Colgate & Co. 250 U. S. 300, 63 L. ed. 992, 7 A.L.R. 443, 39 Sup. Ct. Rep. 465; Union P. Coal Co. v. United States, 97 C. C. A. 578, 173 Fed. 737; Great At-Rep. 150. lantic & P. Tea Co. v. Cream of Wheat Where he acts in combination with Co. 224 Fed. 566, affirmed in 141 C. C. A. 594, 227 Fed. 46; Cudahy Packing Co. v. Frey & Son, 171 C. C. A. 661, 261

Fed. 65; Welch Grape Juice Co. v. Frey & Son, 171 C. C. A. 664, 261 Fed. 68,

writ of certiorari denied in 251 U. S. 551, 64 L. ed. 410, 40 Sup. Ct. Rep. 56; New York Ice Co. v. Parker, 21 How. Pr. 302; John D. Park & Sons Co. v. National Wholesale Druggists' Asso. 50 N. Y. Supp. 1064; Locker v. American Tobacco Co. 121 App. Div. 443, 106 N. Y. Supp. 115, affirmed on opinion below in 195 N. Y. 565, 88 N. E. 289; State v. Scollard, 126 Wash. 335, 32 A.L.R. 1082, 218 Pac. 224.

Accordingly, an ice company which cuts off a dealer's supply of ice because of his failure to adhere to a fixed resale price is not liable in damages. New York Ice Co. v. Parker, 21 How. Pr. 302. The refusal of a coal company to sell coal to a retail dealer unless he will discontinue an advertisement he has caused to be put in the newspaper, to the effect that he will sell coal at a price lower than the retail price then prevailing, is

others.

Although a trader may refuse to deal

with another for any reason, or for no combine with others to do so is not clear. reason at all, the extent to which he may

such a combination would, in the abAlthough there is some indication that sence of statute, be regarded as an actionable wrong against one thereby prevented from obtaining goods (see Brown v. Jacobs's Pharmacy Co. 115 Ga. 429, 57 L.R.A. 547, 90 Am. St. Rep. 126, 41 S. E. 553; Klingel's Pharmacy v. Sharp & Dohme, 104 Md. 218, 7 L.R.A.(N.S.) 976, 118 Am. St. Rep. 399, 64 Atl. 1029, 9 Ann. Cas. 1184; Delz v. Winfree, 80 Tex. 400, 26 Am. St. Rep. 755, 16 S. W. 111; Murray v. McGarigle, 69 Wis. 483, 34 N. W. 522; Hawarden v. Youghiogheny & L. Coal Co. 111 Wis. 545, 55 L.R.A. 828, 87 N. W. 472), the question must be regarded as an open one, depending upon the extent to which the courts may regard it as expedient to permit persons to combine to further their own interests, where such combination operates to the detriment of others.

Mr. Adrien F. Busick argued the cause, and, with Mr. W. H. Fuller and Solicitor General Beck, filed a brief for petitioner:

The court in Federal Trade Commission v. Gratz, 253 U. S. 421, 64 L. ed. 993, 40 Sup. Ct. Rep. 572, interpreted the substantive law of the Trade Commission Act as creating two classes of practices which are unfair within the meaning of the statute; first, those which are contrary to good morals because characterized by deception, bad faith, fraud, or oppression; and, second, those which have a dangerous tendency unduly to hinder competition.

Federal Trade Commission v. BeechNut Packing Co. 257 U. S. 441, 66 L. ed. 307, 19 A.L.R. 882, 42 Sup. Ct. Rep. 150; Federal Trade Commission v. Winsted Hosiery Co. 258 U. S. 483, 66 L. ed. 729, 42 Sup. Ct. Rep. 384.

This proceeding involves involuntary restraint of trade; and control of the

That such a combination is justifiable, | as an attempt to protect the common interests of the members thereof, is held in Ware & De Freville v. Motor Trade Asso. [1921] 3 K. B. 40, 19 A.L.R. 893, 90 L. J. K. B. N. S. 949, 125 L. T. N. S. 265, 37 Times L. R. 213, 65 Sol. Jo. 239 -C. A.

Although a dealer does not violate the Federal Anti-trust Act by refusing to sell to others, and may withhold his goods from them unless they sell them at a price which he fixes for their resale, he may not, consistently with the act, go beyond the exercise of this right, and by contracts or combinations, expressed or implied, unduly hinder or obstruct the natural flow of commerce in the channels of interstate trade. Federal Trade Commission v. Beech-Nut Packing Co. 257 U. S. 441, 66 L. ed. 307, 19 A.L.R. 882, 42 Sup. Ct. Rep. 150.

A combination of distributors of moving-picture films throughout the United States, to refuse to supply films to an exhibitor because of his refusal to deal with some of them, is within the Federal Anti-trust Act. Binderup v. Pathe Exch. 263 U. S. 291, ante, 308, 44 Sup. Ct. Rep. 96.

Combinations of manufacturers to cut off the supply of goods of anyone who fails to adhere to the resale price fixed by them have been generally held to be violative of the Anti-trust Laws. See Mines v. Scribner, 147 Fed. 927; Jayne v. Loder, 7 L.R.A. (N.S.) 984, 78 C. C. A. 653, 149 Fed. 21, 9 Ann. Cas. 294; Denver Jobbers' Asso. v. People, 21 Colo.

market by respondent need not be slown.

United States v. Patten, 226 U. S. 525, 541, 57 L. ed. 333, 341, 44 L.R.A. (N.S.) 325, 33 Sup. Ct. Rep. 141; Loewe v. Lawlor, 208 U. S. 274, 293, 294, 52 L. ed. 488, 496, 28 Sup. Ct. Rep. 301, 13 Ann. Cas. 815; United States v. Keystone Watch Case Co. 218 Fed. 502; Steers v. United States, 112 C. C. A. 423, 192 Fed. 1.

The practice burdens interstate commerce, hinders competition, and destroys that equality of opportunity to compete which it was the purpose of the Trade Commission Act to preserve.

Eastern States Retail Lumber Dealers' Asso. v. United States, 234 U. S. 600, 58 L. ed. 1490, L.R.A.1915A, 788, 34 Sup. Ct. Rep. 951; Duplex Printing Press Co. v. Deering, 254 U. S. 443, 467, 65 L. ed. 349, 357, 16 A.L.R. 196, 41 Sup. Ct. Rep. 172; Swift & Co. v. United States, 196 U. S. 375, 49 L. ed. 518, 25 Sup. Ct. Rep. App. 326, 122 Pac. 404; Straus v. American Publishers' Asso. 177 N. Y. 473, 64 L.R.A. 701, 101 Am. St. Rep. 819, 69 N. E. 1107; John D. Park & Sons Co. v. National Wholesale Druggists' Asso. 50 N. Y. Supp. 1064.

Combinations of dealers to refuse to deal with anyone who may sell goods directly to their trade have likewise been held to be violative of the Anti-trust Laws. See Grenada Lumber Co. v. Mississippi, 217 U. S. 433, 54 L. ed. 826, 30 Sup. Ct. Rep. 535; People v. Butler, 221 Mich. 626, 192 N. W. 685; Eastern States Retail Lumber Dealers' Asso. v. United States, 234 U. S. 600, 58 L. ed. 1490, L.R.A.1915A, 788, 34 Sup. Ct. Rep. 951.

A combination of jobbers to refuse to purchase from manufacturers who should give jobbers' terms to one doing both a wholesale and retail business is held, in Wholesale Groceries' Asso. v. Federal Trade Commission, 277 Fed. 657, to constitute unfair competition, within the Federal Trade Commission Act.

It has, however, been held that dealers may combine to refuse to sell to any except those who will purchase from them exclusively, without violating the Federal Anti-trust Act,-at least, when there is nothing to show that the parties so combined constitute substantially all, or even a majority, of the manufacturers of such goods, and when the field of manufacture is open to all. Dueber Watch-Case Mfg. Co. v. E. Howard Watch & Clock Co. 14 C. C. A. 14, 35 U. S. App. 16, 66 Fed. 637.

ON

N WRIT of Certiorari to the United States Circuit Court of Appeals for the Eighth Circuit to review a judgment setting aside an order of the Federal Trade Commission, requiring abandonto retailers the same discount which it allows wholesalers on the same quantity of goods. Mennen Co. v. Federal Trade Commission, 30 A.L.R. 1120, 288 Fed. 774.

A retail dealer may stop dealing with a wholesaler because he thinks such dealer is acting unfairly in trying to undermine his trade. Eastern States Retail Lumber Dealers' Asso. v. United States, 234 U. S. 600, 58 L. ed. 1490, L.R.A.1915A, 788, 34 Sup. Ct. Rep. 951. An individual engaged in a retail business may make it a fixed rule of conduct not to buy from a producer or wholesaler who sells to consumers in competition with himself. Crenada Lumber Co. v. Mississippi, 217 U. S. 433, 54 L. ed. 826, 30 Sup. Ct. Rep. 535.

ment of a method of competition held to be in violation of the Trade Commission Act. Affirmed.

See same case below, 280 Fed. 529. The facts are stated in the opinion. not a violation of the Federal Anti-trust Act. Union P. Coal Co. v. United States, 97 C. C. A. 578, 173 Fed. 737.

And the refusal to a jobber of the usual discount from the list price in consequence of his noncompliance with the manufacturer's request that he maintain a fixed resale price affords no basis for an action for damages under the Federal Anti-trust Act. Cudahy Packing Co. v. Frey & Son, 171 C. C. A. 661, 261 Fed. 65; Welch Grape Juice Co. v. Frey & Son, 171 C. C. A. 664, 261 Fed. 68, writ of certiorari denied by supreme court, 251 U. S. 551, 64 L. ed. 410, 40 Sup. Ct. Rep. 56.

But the action of a manufacturer in issuing circulars to its trade, suggesting uniform resale prices, both wholesale and retail, to be charged for its product, and in refusing to continue to sell to any dealer who fails to maintain such prices, or who sells to another dealer failing to maintain them, has been held to be an "unfair method of competition" within the meaning of the Federal Trade Commission Act. Federal Trade Commission v. Beech-Nut Packing Co. 257 U. S. 441, 66 L. ed. 307, 19 A.L.R. 882, 42 Sup. Ct.

others.

The inherent right of every individual to refuse to deal with any person, for any reason, or for no reason whatever, includes the right to refuse to deal with one who refuses to comply with his wishes as to the price at which his products shall be resold. See United States v. Colgate & Co. 250 U. S. 300, 63 L. ed. 992, 7 A.L.R. 443, 39 Sup. Ct. Rep. 465; Union P. Coal Co. v. United States, 97 C. C. A. 578, 173 Fed. 737; Great At-Rep. 150. lantic & P. Tea Co. v. Cream of Wheat Where he acts in combination with Co. 224 Fed. 566, affirmed in 141 C. C. A. 594, 227 Fed. 46; Cudahy Packing Co. v. Frey & Son, 171 C. C. A. 661, 261 Fed. 65; Welch Grape Juice Co. v. Frey & Son, 171 C. C. A. 664, 261 Fed. 68, writ of certiorari denied in 251 U. S. 551, 64 L. ed. 410, 40 Sup. Ct. Rep. 56; New York Ice Co. v. Parker, 21 How. Pr. 302; John D. Park & Sons Co. v. National Wholesale Druggists' Asso. 50 N. Y. Supp. 1064; Locker v. American Tobacco Co. 121 App. Div. 443, 106 N. Y. Supp. 115, affirmed on opinion below in 195 N. Y. 565, 88 N. E. 289; State v. Scollard, 126 Wash. 335, 32 A.L.R. 1082, 218 Pac. 224.

Although a trader may refuse to deal with another for any reason, or for no combine with others to do so is not clear. reason at all, the extent to which he may

such a combination would, in the abAlthough there is some indication that tionable wrong against one thereby presence of statute, be regarded as an acvented from obtaining goods (see Brown v. Jacobs's Pharmacy Co. 115 Ga. 429, 57 L.R.A. 547, 90 Am. St. Rep. 126, 41 S. E. 553; Klingel's Pharmacy v. Sharp & Dohme, 104 Md. 218, 7 L.R.A. (N.S.) 976, 118 Am. St. Rep. 399, 64 Atl. 1029, 9 Ann. Cas. 1184; Delz v. Winfree, 80 Tex. Accordingly, an ice company which 400, 26 Am. St. Rep. 755, 16 S. W. 111; cuts off a dealer's supply of ice because Murray v. McGarigle, 69 Wis. 483, 34 of his failure to adhere to a fixed resale N. W. 522; Hawarden v. Youghiogheny price is not liable in damages. New & L. Coal Co. 111 Wis. 545, 55 L.R.A. York Ice Co. v. Parker, 21 How. Pr. 302. 828, 87 N. W. 472), the question must be The refusal of a coal company to sell regarded as an open one, depending coal to a retail dealer unless he will dis-upon the extent to which the courts may continue an advertisement he has caused regard it as expedient to permit persons to be put in the newspaper, to the effect to combine to further their own interthat he will sell coal at a price lower ests, where such combination operates than the retail price then prevailing, is to the detriment of others.