reason said defendant refused to order or receive any lobsters from said Zander after the fifteenth day of May, 1917." Upon the issues as thus made up the cause proceeded to trial, and upon such trial plaintiff's assignor, Zander, testified to an agreement between himself and the fisheries company represented by said Kondo, by which Zander was to receive the lobsters, which in turn he was to sell to the defendant. He testified also that so far as he, Kondo, and the fisheries company were concerned, it was understood that during the pendency of the contract Kondo would not ship lobsters into the territory, and consequently they did not, nor did either of them, sell or supply lobsters to any other person than said defendant for delivery or use north of the thirty-sixth parallel of latitude; that he deemed himself obligated not to sell lobsters to any other parties than the defendant in that territory. There was some testimony offered on behalf of the defendant to the effect that the fisheries company violated this understanding. Upon the submission of the cause findings were waived, and the court rendered judgment in plaintiff's favor for the sum of four thousand five hundred dollars and costs. From such judgment the defendant has prosecuted this appeal. The appellant in his reply brief makes for the first time the contention that the contract, upon which the plaintiff seeks to recover, is illegal and void for the reason that it is such a contract in restraint of trade as would constitute a violation of the terms of the Sherman Anti-Trust Act. The respondent objects to a consideration of the point upon the ground that objection comes too late. [2] But a void contract, a contract against public policy or against the mandate of the statute, may not be made the foundation of any action either in law or in equity. (Santa Clara Valley Mill & Lumber Co. v. Hayes, 76 Cal. 387-390, [9 Am. St. Rep. 211, 18 Pac. 391]; Estate of Groome, 94 Cal. 69-72, [29 Pac. 487]; Chateau v. Singla, 114 Cal. 91-94, [55 Am. St. Rep. 63, 33 L. R. A. 750, 45 Pac. 1015].) As the appellant comes now into court pleading that he has violated the law and is seeking relief based upon his own unlawful acts, respondent contends that the court should leave him where it finds him. But neither the silence nor the consent of the partics justifies the court in retaining jurisdiction of such an action. (Ball v. Putnam, 123 Cal. 134-140, [55 Pac. 773].) Anyone sued upon a contract may set up a defense that it is a violation of an act of Congress, and if it is found to be so, that fact will constitute a good defense to the action. (Bement v. National Harrow Co., 186 U. S. 70-88, [46 L. Ed. 1058, 22 Sup. Ct. Rep. 747, see, also, Rose's U. S. Notes].) The burden ordinarily rests upon the party asserting the invalidity of the contract to show how and why it is unlawful (Harbison-Walker Co. v. Stanton, 227 Pa. St. 5563, [75 Atl. 988]), and, as a general rule, cases will not be reversed upon points which the respondent has not had an opportunity to discuss, but in cases of this kind it matters not that no objection is made by either party. [3] When the court discovers a fact which indicates that the contract is illegal and ought not to be enforced, it will, of its own motion, instigate an inquiry in relation thereto. (Kreamer v. Earl, 91 Cal. 112-118, 27 Pac. 735]; Pacific Wharf & Storage Co. v. Standard American Dredging Co., 184 Cal. 21, [192 Pac. 847].) In this case, however, appellant raised the objection as to the invalidity of the contract in his closing brief in the district court of appeal, and the point was discussed by both parties to the appeal in the petition and answer on application for hearing in this court. The contract entered into by the parties to this controversy is contained in two written documents reading as follows: "A. Paladini, "San Francisco, Cal. "Dear Sir: "San Francisco, April 2, 1917. "I agree to deliver to you f. o. b. San Diego live lobsters at seventeen (17) cents per pound, and boiled lobsters at nineteen (19) cents per pound, and will agree to deliver to you up to five tons per week, from date to October 15th, 1917, subject to weather conditions and run of lobsters. "You are to have the exclusive right to sell these lobsters in California north of parallel 36 degrees north latitude, and in the states of Oregon, Washington and Nevada. "This is contingent upon your agreeing to take at least four tons of lobsters a week from me on these terms. The payments to be made upon presentation to you of shipping receipts showing that goods were received in good order by the transportation company. "Yours truly, "W. E. ZANDER." "San Francisco, April 2, 1917. "W. E. Zander, "San Francisco, Cal. "Dear Sir: "I agree to take from you or your shipper at least four tons of lobsters a week from date to October 15th, 1917, in lots of boiled and live lobsters as I shall require, at the price quoted to me in your letter of this date, and on the terms and conditions therein contained. I am to have the exclusive right to sell the lobsters in California north of parallel 36 degrees north latitude, and also in the states of Oregon, Washington and Nevada. "Yours truly, "A. PALADINI." During the year 1917 the defendant was engaged in the fish trade in San Francisco. Part of his business consisted in buying and selling lobsters. At that time, as now, under the fish and game laws of the state the months from March 1st to October 14th constituted a closed season during which no lobsters may be taken in California, or in waters lying south for a distance of ten miles from the international boundary line between the United States and Mexico, extended westerly in the Pacific Ocean. (Pen. Code, sec. 628.) W. E. Zander, plaintiff's assignor, had contracts with fishing companies operating in Mexican waters south of the prescribed boundary line. He entered into the foregoing contract with appellant, and supplied the lobsters under its terms until the latter part of May, or first part of June, when the appellant refused to accept any further shipments upon the ground that, according to Zander's testimony, the market was overstocked and he could not sell them as fast as they were to be delivered under the contract. The evidence for the appellant was that he refused the shipments because Zander refused to stop the fisheries companies from selling lobsters to other persons in his exclusive territory. Whatever may have been the reason for appellant re-. fusing to go forward in the performance of the agreement, it seems to be conclusively established that in the inception of the transaction it was contemplated by the parties that the contract was one which would result in at least a partial restraint of trade. In that connection it appears that Zander obtained from the companies supplying him the exclusive right to sell lobsters in the northern two-thirds of California and in the states of Oregon, Washington, and Nevada. He testified that under his agreement with appellant he was obligated not to, and did not, sell any lobsters in that territory to anyone else than the defendant, and that the fisheries company understood, and were bound by, his contract. The evidence for the appellant is to the same effect, but went further and tended to establish a breach of this agreement on the part of the fisheries companies. The plain terms of the contract itself confirm the intent of the parties to prevent either Zander or the parties supplying him from engaging in the business of selling lobsters to anyone but appellant within the specified territory. There can be no escape from the conclusion that underlying the agreement, and as part of the consideration for the contract, was the purpose of putting it into the power of the appellant to control the lobster market within the limits of the states mentioned, so far as lay within the power of Zander and the fisheries companies, by restraining themselves from exercising their own lawful business of supplying the market generally. The result would tend toward a monopoly of the trade in appellant and a restriction of the trade of the other parties to the contract. [4] We think the contract is illegal, not only as being in violation of the federal statute (Sherman anti-trust law), but also as being contrary to the provisions of our own code section, which provides that every contract by which one is restrained from exercising a lawful profession, trade, or business of any kind, otherwise than relating to exceptions in favor of sales of goodwill and in favor of partnership arrangements, is to that extent void. (Civ. Code, sec. 1673.) This last objection to the contract was not raised by either party, but it suggests itself so logically in relation to the transaction that we have considered it in connection with the point raised by the appellant. The Sherman Anti-trust Act, by the first section, declares that "every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations, is . . . illegal." (26 U. S. Stats. at Large, 209 [7 Fed. Stats. Ann., p. 336; U. S. Comp. Stats. 1918, Compact ed., sec. 8820].) The act was passed for the purpose of protecting trade and commerce among the several states, or with foreign nations, from unlawful restraints and monopolies. [5] An agreement which has some direct and immediate effect upon interstate commerce is within the inhibition of the statute. (Standard Oil Co. v. United States, 221 U. S. 1-66, [Ann. Cas. 1912D, 734, 34 L. R. A. (N. S.) 834, 55 L. Ed. 619, 31 Sup. Ct. Rep. 502].) It is not essential that the result of the contract should be a complete monopoly in order to vitiate the agreement. It is sufficient if it really tends to that end and deprives the public of the advantages which flow from free competition. (United States v. Knight Co., 156 U. S. 1-16, [39 L. Ed. 325, 15 Sup. Ct. Rep. 249, see, also, Rose's U. S. Notes].) The effect of the contract at bar may be well understood in view of the fact that its duration was only for the closed season for lobsters in the state during which the supply for the trade must of necessity come from an outside source. It seems to us to be very plain that the agreement was intended to effect a virtual monopoly of the lobster trade in the central and northern portions of this state, and so far as shipments to Oregon, Washington, and Nevada were concerned. It was, therefore, within the provisions of the federal act. (Addyston Pipe & Steel Co. v. United States, 175 U. S. 211-241, [44 L. Ed. 136, 20 Sup. Ct. Rep. 96].) So far as our own statute is material, we think argument on the question is concluded by the decision of this court in Santa Clara Valley Mill & Lumber Co. v. Hayes, 76 Cal. 387, [9 Am. St. Rep. 211, 18 Pac. 391], which approved and followed Arnot v. Pittston & Elmira Coal Co., 68 N. Y. 558, [23 Am. Rep. 190]. The case had to do with a combination among manufacturers of lumber, limiting the amount to be manufactured, and giving the plaintiff in the action control of the supply for one year within certain territory. The action was one to recover damages for a breach of the agreement. The trial court gave judgment for the defendants. In affirming the judgment this court said: "Plaintiff had an undoubted right to purchase any or all of the lumber it chose, and to sell at such prices and places 187 Cal. 47 |