superintendent of streets. The defendant is not bound by the admissions, against its interest, made by a police officer in the form of a narration. The evidence of the police officer should have been limited to a description of the condition of the walk, based upon personal observation, and a record of the condition made by him. It does not appear that the place described by the police officer in the record is the place where the plaintiff is alleged to have sustained injury. See Donaldson v. Boston, 16 Gray, 508; 3 Greenl. Ev. c. 4, SS 483, 484; Buttrick v. Lowell, 1 Allen, 172; Billings v. Worcester, 102 Mass. 329, 330; Rooney v. Randolph, 128 Mass. 580; Hayes v. Cambridge, 136 Mass. 402, 403.

W. H. Anderson, for plaintiff.

The evidence of plaintiff's daughter was rightfully admitted, because the declarations were the expressions of present pain, and were not narrative of past feelings. 1 Greenl. Ev. § 102; Bacon v. Charlton, 7 Cush. 586; Jacobs v. Whitcomb, 10 Cush. 257; Palmer v. Crook, 7 Gray, 420; Hatch v. Fuller, 131 Mass. 576; Roosa v. Boston Loan Co., 132 Mass. 439, 440. The book of the police officer was properly admitted. It was a declaration of the defendant against its interest, and was only produced on notice from the plaintiff. The evidence offered by the defendant to show a rule of the police department was rightfully excluded. The existence or non-existence of such a.rule would have no effect to control or limit the liability of the city to a person injured by a defect caused by ice and snow, and it could not affect the matter of notice. The ruling of the court as to the origin of the ice was sufficiently favorable to the defendant, and was correct. Billings v. Worcester, 102 Mass. 329; Fitzgerald v. Woburn, 109 Mass. 204; Stanton v. Springfield, 12 Allen, 571, and cases cited.

DEVENS, J. The city of Lowell was responsible for the defect in its highway, if it had reasonable notice thereof, or, by the exercise of reasonable care and diligence on its part, might have had such notice. Pub. St. c. 52, § 18. Such notice may be given to its officials, and the reasonable care and diligence which must be exercised is to be exercised by them. The book which was admitted in evidence was kept in the office of the city messenger, in the city government building, and had been thus kept from 1871 up to the time of the injury, which was of recent date. The printed headings on its pages indicated that it was kept for the purpose of entering complaints as to the condition of the streets, sidewalks, etc., and recording the time when such complaints were attended to. It was in evidence that the superintendent of streets had, in consequence of similar notices, repaired defects complained of. The object with which the book apparently was kept was that the city should receive notice of defects. Upon this book a policeman of the defendant city had entered a notice of the defective condition of the sidewalk a day previous to the occurrence of the plaintiff's injury, and it was properly admitted in evidence upon the question of notice. Whether the defect was the same, and the place of the injury the same, as that pointed out by the entry recorded, it was for the jury to determine. It does not appear, as defendant contends, that the book was admitted as a narrative of the condition of the way at the time it was made. The actual condition of the way was proved by other evidence, and no further weight appears to have been given to the book than that derived from its bearing upon the question of notice.

The defendant requested the court to rule "that the origin of the ice [by which the defect was occasioned] was not material on the question whether the ice constituted a defect," but as the court (the case being tried without a jury) found, as a fact, "that the ice on which the plaintiff fell was a defect, without reference to its origin, "—that is, independently of the manner in which it was occasioned, this request of the defendant was immaterial. We do not intend to intimate that, even if material, it should have been

granted; especially in view of St. 1877, c. 234, § 2, (Pub. St. c. 52, § 18,) which renders a defendant town or city liable only for an injury or damage through a defect "which might have been remedied, or which damage or injury might have been prevented, by reasonable care and diligence. Billings v. Worcester, 102 Mass. 329; Fitzgerald v. Woburn, 109 Mass. 204; Rooney v. Randolph, 128 Mass. 580; Hayes v. Cambridge, 136 Mass. 402; Olson v. Worcester, 142 Mass. 536; S. C. 8 N. E. Rep. 441; Post v. Boston, 141 Mass. 189; S. C. 4 N. E. Rep. 815.

The exceptions taken at the trial were not argued, and need not be discussed. Exceptions overruled.

(143 Mass. 353)

CENTRAL SHADE-ROLLER Co. v. CUSHMAN.

(Supreme Judicial Court of Massachusetts. Suffolk. January 11, 1887.) CONTRACT-RESTRAINT OF TRADE-PATENTS-COMPETITION-PRICES.

Where several parties, severally engaged in the business of manufacturing and selling balance shade-rollers, for the purpose of avoiding competition, organize themselves into a corporation, and severally enter into an agreement with the corporation, so organized, that all sales of the shade-roller shall be made in the name of the corporation, and at once reported to it; that, when either party shall establish an agency in any city for the sale of a roller made exclusively for that purpose, no other party shall take orders for the same roller in the same place; and that the prices for rollers of the same grade, made by the different parties, shall be the same, and shall be according to a schedule contained in the contract, subject to changes which may be made by the corporation upon recommendation of threefourths of the stockholders,-the agreement is valid, and not void as in restraint of trade.1

Bill in equity for an account, and for an injunction to restrain the defendant from violating an agreement made by him with the plaintiff. Hearing in the supreme court on the demurrer of the defendant, before DEVENS, J., who sustained the demurrer, and the plaintiff appealed. The facts are stated in the opinion.

J. B. Warner, for plaintiff.

The attempt to apply to this subject the rules which forbid a restraint of trade is without precedent. Morse Twist-drill Co. v. Morse, 103 Mass. 73; Taylor v. Blanchard, 13 Allen, 370, 373; Vickery v. Welch, 19 Pick. 523; Leather Cloth Co. v. Lorsont, L. R. 9 Eq. 345; Printing, etc., Co. v. Sampson, L. R. 19 Eq. 462; Peabody v. Norfolk, 98 Mass. 452. The burden is upon the defendant to make it "plainly and obviously clear that the contract is against public policy; such being the burden upon a party who seeks to put a lestraint upon the freedom of contract." Rousillon v. Rousillon, 14 Ch. Div. 351, 365; Phippen v. Stickney, 3 Metc. 384; Marsh v. Russell, 66 N. Y. 288; Stearns v. Barrett, 1 Pick. 443, 450; Morris v. Colman, 18 Ves. 437; Marsh v. Russell, 66 N. Y. 288; Wallis v. Day, 2 Mees. & W. 273. See Mitchel v. Reynolds, 1 P. Wms. 181; S. C. 1 Smith, Lead. Cas. 756; Gale v. Reed, 8 East, 80. An agreement to sell the entire product of the business to one party, who agrees to buy it, cannot possibly be a restraint. Schwalm v. Holmes, 49 Cal. 665; Long v. Towl, 42 Mo. 545; Wiggins Ferry Co. v. Chicago & A. R. Co., 73 Mo. 389; Ainsworth v. Bentley, 14 Wkly. Rep. 630; Perkins v. Lyman, 9 Mass. 521; Barfield v. Nicholson, 2 Sim. & S. 1; Stiff v. Cassell, 2 Jur. (N. S.) 348; Ingram v. Stiff, 5 Jur. (N. S.) 947.

The cases in which agreements to prevent competition have been adjudged illegal are usually those where the end is accomplished by a wholesale restraint of trade, as in contracts not to manufacture, or not to sell at all, or except by permission of an association. Hilton v. Eckersley, 6 El. & Bl. 47; Hornby v. Close, L. R. 2 Q. B. 153; Central Ohio Salt Co. v. Guthrie, 35

1See Dolph v. Troy Laundry Machinery Co., 28 Fed. Rep. 553, and note; Mandeville v. Harman, (N. J.) 7 Atl. Rep. 37.

Ohio St. 666; India Bagging Ass'n v. Kock, 14 La. Ann. 168; Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. St. 173; Arnot v. Pittston & Elmira Coal Co., 68 N. Y. 558; Raymond v. Leavitt, 46 Mich. 447; S. C. 9 N. W. Rep. 525; Craft v. McConoughy, 79 Ill. 346; Stanton v. Allen, 5 Denio, 434. See Phippen v. Stickney, 3 Metc. 384; Gibbs v. Smith, 115 Mass. 592. It is not a principle of law that competition is to be guarded to the extent of prohibiting an honest combination of persons having similar interests. Collins v. Locke, 4 App. Cas. 674; Wickens v. Evans, 3 Younge & J. 318; Skrainka v. Scharringhausen, 8 Mo. App. 522; 1 Wood, Ry. Law, 600; Central Trust Co. v. Ohio Cent. Ry., 23 Fed. Rep. 306; Hare v. London & N.W. Ry. Co., 2 Johns. & H. 80; Mallan v. May, 11 Mees. & W. 653, 665; Griffiths v. Earl of Dudley, 9 Q. B. Div. 357, 364; Perkins v. Lyman, 9 Mass. 521; Palmer v. Stebbins, 3 Pick. 188; Com. v. Hunt, 4 Metc. 111, 130; Carew v. Rutherford, 106 Mass. 1; Bowen v. Matheson, 14 Allen, 499; Snow v. Wheeler, 113 Mass. 179; Long v. Towl, 42 Mo. 545, 549. If any danger is apprehended from the possible abuse of powers of combination, we submit that the court should wait until it has a clear case of illegal action within the limits already recognized by the law. It cannot be well to meet the possible evil, which may never arise, by selecting an inoffensive case as the occasion for an interference which may be itself the greater evil. Master Stevedores' Ass'n v. Walsh, 2 Daly, 1.

Moorfield Storey, for respondent.

The contract is clearly in restraint of trade, and therefore void. Certainly a court of equity will not enforce it. Craft v. McConoughy, 79 Ill. 346; Raymond v. Leavitt, 46 Mich. 447; S. C. 9 N. E. Rep. 525; India Bagging Ass'n v. Kock, 14 La. Ann. 168; Central Ohio Salt Co. v. Guthrie, 35 Ohio St. 666; Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. St. 173; Stanton v. Allen, 5 Denio, 434; Arnot v. Pittston & Elmira Coal Co., 68 N. Y. 558; Keeler v. Taylor, 53 Pa. St. 467; Story, Eq. § 292 et seq; California & Hecla Min. Co. v. Quincy Min. Co., (N. Y. Sup. Court,) -; Saratoga Co. Bank v. King, 44 N. Y. 87; Hartford & N. H. R. R. v. New York & N. H. R. Co., 3 Rob. (N. Y.) 411.

The court will look through the form to the substance. Craft v. McConoughy, ubi supra; Central Ohio Salt Co. v. Guthrie, ubi supra.

The fact that in this case the combination relates to articles protected by patents is immaterial.

The general rule is modified where an article is patented only so far as is necessary to secure the patentee the fruits of his patent. Mitchel v. Reynolds, 1 P. Wms. 181; S. C. 1 Smith, Lead. Cas. 756; Oregon Steam Nav. Co. v. Winsor, 20 Wall. 64.

W. ALLEN, J. The contract which is sought to be enforced by this bill (and the validity of which is the only question presented by the demurrer and argued by the parties) was made between the plaintiff, of the first part, and three manufacturers, under several patents of certain curtain fixtures known as "Wood Balance Shade-rollers," of the second part, in pursuance of an arrangement between the persons forming the party of the second part that the plaintiff corporation should be created for the purpose of becoming a party to the combination, was to prevent, or rather to regulate, competition between the parties to it in the sale of the particular commodity which they made. This is a lawful purpose, but it is argued that the means employed to carry it out-the creation of the plaintiff corporation and the terms of the contract with it—are against public policy and invalid. The fact that the parties to the combination formed themselves into a corporation of which they were the stockholders, that they might contract with it, instead of with each other, and carry out their scheme through its agency, instead of that of a pre-existing person, is obviously immaterial, and the only ground upon which it can be

TUU

argued that the contract is invalid is the restraint it puts upon the parties to it.

Does the contract impose a restraint as to the manufacture on the sale of balance and shade-rollers which is void as against public policy? The contract certainly puts no restraint upon the production of the commodity to which it relates. It puts no obligation upon and offers no inducement to any person to produce less than to the full extent of his capacity. On the contrary, its apparent purpose is, by making prices more uniform and regular, to stimulate and increase production. The contract does not restrict the sale of the commodity. It does not look towards withholding a supply from the market in order to enhance the price, as in Craft v. McConoughy, 79 Ill. 346, and other cases cited by the defendant. On the contrary, the contract intends that the parties shall make sales, and gives them full power to do so; the only restrictions being that sales not at retail or for export shall be in the name of the plaintiff, and reported to it, and the accounts of them kept by it; and the provision that, when any party shall establish an agency in any city or town for the sale of a roller made exclusively for that purpose, no other party shall take orders for the same roller in the same place. To these restrictions, clearly valid, there is added the one which affords an argument for the invalidity of the contract,-the restriction as to price. That restriction is, in substance, that the prices for rollers of the same grade, made by different parties, shall be the same, and shall be, according to a schedule contained in the contract, subject to changes which may be made by the plaintiff upon recommendation of three-fourths of its stockholders. In effect, it is an agreement between three makers of a commodity that for three years they will sell it at a uniform price fixed at the outset, and to be changed only by consent of a majority of them. The agreement does not refer to an article of prime necessity, nor to a staple of commerce, nor to merchandise to be bought and sold in the market, but to a particular curtain fixture of the parties' own manufacture. It does not look to affecting competition from outside,—the parties have a monopoly by their patents,-but only to restrict competition in price between themselves. Even if such an agreement tends to raise the price of the commodity, it is one which the parties have a right to make. To hold otherwise would be to impair the right of persons to make contracts, and to put a price on the products of their own industry.

But we cannot assume that the purpose and effect of the combination is to unduly raise the price of the commodity. A natural purpose and a natural effect is to maintain a fair and uniform price, and to prevent the injurious effects, both to producers and consumers, of fluctuating prices caused by undue competition. When it appears that the combination is used to the public detriment, a different question will be presented from that now before us. The contract is apparently beneficial to the parties to the combination, and not necessarily injurious to the public, and we know of no authority or reason for holding it to be invalid as in restraint of trade or against public policy. We have not overlooked other provisions of the contract, which were adverted to in the argument, but we do not find anything which renders it invalid, or calls for special consideration.

In the opinion of a majority of the court, the entry must be, demurrer overruled.

(143 Mass. 169)

COMMONWEALTH v. SMITH.

(Supreme Judicial Court of Massachusetts. Suffolk. January 4, 1887.) ADULTERATION-MILK-POSSESSION-AGENT IN CHARGE OF WAGON.

Under a complaint charging the defendant with having in his possession adulterated milk, with intent unlawfully to sell the same, there is evidence of intent to sell sufficient to submit to the jury if it is shown that the defendant's milk-wagon,

in charge of his servant, and with the usual cans upon it, was at the corner of a public street in the early morning, and that the sample collector was permitted, without objection, to take a sample of milk therefrom.

Complaint under Pub. St. c. 57, § 5, charging the defendant with having in his possession, in Boston, adulterated milk, with intent unlawfully to sell the same. Trial in the superior court, before STAPLES, J., where the jury returned a verdict of guilty, and the defendant alleged exceptions. The facts are stated in the opinion.

Samuel Hoar, for defendant.

The government was bound to prove, beyond a reasonable doubt, not only that the defendant, by his servant, had in his possession, in the county of Suffolk, milk which was below the legal standard, but was also bound to prove, beyond a reasonable doubt, that such possession was accompanied by the intent of the defendant to sell the same contrary to law. Com. v. Intoxicating Liquors, 105 Mass. 595; Com. v. Hersey, 2 Allen, 180. It is not sufficient if the evidence tends to show that the servant had the unlawful intent, accompanied by the possession of the milk, where it is not the intent of the servant, but the intent of the defendant, which constitutes the offense charged in the complaint. Com. v. Wachendorf, 141 Mass. 270; S. C. 4 N. E. Rep. 817. In the case at bar, the government did not prove that the defendant was a licensed or unlicensed seller of milk. The evidence of his application for such a license was admitted for the sole purpose of showing his ownership of the wagon and the agency of his driver. The government failed to show that the defendant, by himself or his servant, had ever sold, or attempted to sell, any milk whatever. It failed to show that he had ever formed any general intent to sell milk anywhere, and, more particularly, it failed to show that he had formed any intent to sell the particular milk in question. If this were a civil action, where the plaintiff must prove his case by a preponderance of the evidence only, the evidence would not be sufficient to authorize the jury to find for him. Kendall v. Boston, 118 Mass. 234.

H. N. Shepard, Asst. Atty. Gen., for the Commonwealth, cited Com. v. McCarthy, 119 Mass. 355.

DEVENS, J. Even if it be conceded that the milk which the defendant was charged with having in his possession, with intent to sell, was adulterated, it is the contention of the defendant, and this was the only point argued, that the case for the government afforded no evidence of any intent on the part of defendant to sell, even if it were true that the milk was adulterated, and was in the possession of the defendant by his servant. The team of the defendant, bearing the name, and being also numbered, was at a corner of a public street and place in the city, in the early morning. The servant of the defendant was upon it. There were several cans in the wagon. From one of the cans (which was an eight-quart can) the collector of milk samples took a sample, which was the alleged adulterated milk. The fact that the wagon was that of the defendant; the place where it was, the time when it was there; the different cans, and the contents; the fact that the sample collector was permitted, without objection from defendant's servant, who had the wagon and its contents in charge, to take a sample,-furnished evidence against the defendant of an intent to sell the milk, which the jury was properly allowed to consider. Exceptions overruled.

(143 Mass. 172)

COMMONWEALTH v. SPEAR.

(Supreme Judicial Court of Massachusetts. Suffolk. January 4, 1887.)

1. ADULTERATION-MILK-ANALYSIS OF SAMPLES-PUB. ST. MASS. CH. 57, ? 2, and St. 1884, CH. 310, ? 3.

Pub. St. Mass. c. 57, 2, and St. 1884, c. 310, 23, providing for an analysis of milk by public inspectors, do not provide an exclusive mode of proof of adulteration, in