of the brick company under an implied contract of hire. Accordingly an award of compensation was affirmed. In holding that the relation of employer and employee existed between the brick company and Starbuck, the court said:

"Section 76 of the Workmen's Compensation Act (Laws 1915, c. 106) provides that 'employer' shall include any individual, firm, association, corporation, etc., using the services of another for pay, and that 'employee' shall include every person, including a minor, lawfully in the service of another under any contract of hire or apprenticeship, written or implied, except one whose employment is both casual and not in the usual course of the trade, business, occupation, or profession of the employer. Appellant was using the services of Starbuck for pay, and comes within the statutory definition of an employer, and we hold the facts in this case sufficient to justify the board in finding that Starbuck was in the service of appellant under an implied contract of hire.

"This is not a case where appellant let a contract to the equipment company to do a particular work, and where appellant reserved no control over the manner in which the work should be performed, except that it should conform to a particular standard, and where an injured employee of the contractor is prosecuting a common law action for damages. Cases of that character are not of controlling influence. Appellant, as owner, was required to install, and as a matter of fact was installing, the gas machine in a building then in course of construction. It had sole power and authority to employ and discharge the necessary laborers for that purpose. The man

ner and means of doing that work were under its control, and it cannot be said as a matter of law that the authority of the equipment company was anything more than a privilege of selecting some person to supervise as to the result of the work and to assist appellant

in the installation of the system. The reservation would not make it the employer of the men doing the work." Truck Driver Held Not Unlicensed Chauffeur at Time of Injury

A. E. Norris Coal Co. v. Jackson, Appellate Court of Indiana, 141 N. E. Rep. 227

was

One William E. Jackson struck by a railway train and killed. At the time of the accident, he was hauling coal for the defendant, the A. E. Norris Coal Co., using for that purpose an automobile truck which he himself was driving. The truck was not owned by the defendant, but had been borrowed by Jackson to be used by him in doing hauling about the city of Connersville, Ind.

In a proceeding by the plaintiffs against the coal company under the Workmen's Compensation Act an award was granted. From the award the defendant appealed on the ground that the deceased was a contractor and not an employee and that in any case the plaintiffs were not entitled to an award, for the reason that at the time of his death, in violation of a statutory duty, Jackson was driving the truck as a chauffeur without having first obtained a chauffeur's license. The defendant also urged that as Jackson did not have a chauffeur's license his employment by the defendant was illegal and that, therefore, no award should be granted.

The court in affirming the award held that as there was some evidence to support the finding of the Industrial Board that Jackson, at the time of his death, was an employee and not a contractor, such finding was conclusive.

The court further held that the deceased, at the time of the accident was not acting as a chauffeur within the meaning of the Indiana statute defining a chauffeur as "any person operating or dri g a motor vehicle as an employee for hire." Therefore, the defendant's argument, based on the supposition that the deceased was a chauffeur, was held to be without merit. With reference to this point, the court said:

"In this connection it is well to note that the appellant herein was not, as shown by the undisputed testimony, and about which fact there is no dispute, the owner of the truck which the deceased was driving at the time he was killed. Appellant, as disclosed by this record, had no interest in said truck; it belonged to one Villiams, who had

given Jackson permission, to use the same in doing hauling about the city of Connersville. So far as the appellant is concerned in this case, the said truck was in Jackson's possession, and he was using it, and rightly so, as his own property, hauling and delivering coal therein. He, upon the record before us, was in no proper sense a chauffeur, a person operating or driving a motor vehicle as an employee for hire; he needed no license as a chauffeur before driving said truck upon the public highways of this state. Upon the facts as shown by this record the said Jackson stood, so far as appellant is concerned, upon the same footing as if he (Jackson) had been the owner of said truck. Having found that said Jackson was an employee of the appellant, the Industrial Board was fully justified, upon this record, in awarding compensation to the appellees.'

A contract in which the manufacturer of an article attempts to fix the price at which dealers may resell is unlawful under the Sherman Anti-Trust Act.

This applies in the case of a patented article as well as in the case of

an unpatented article. After a pat ented article is sold, it passes beyond the limits of the monopoly created by the patent.

In this case the plaintiff's sold to the defendants 8,000 patented oil pipe attachments for Ford automobiles at $1.20 each.

The contract gave to the defendants the exclusive right to sell and distribute attachments in the states of Wisconsin and Illinois for a period of one year.

It was provided that the defendants would not, by themselves or their agents, install the attachments for less than $5.00 each.

The plaintiffs delivered and were paid for 375 attachments. The defendants then refused to accept and pay for the remainder, and the plaintiff's brought this action to recover the balance of $3,150 which they claimed to be due.

It was held that the contract was void because in unlawful restraint of trade and that the plaintiffs, therefore, could not recover.

A manufacturer may indicate his wishes conceng the price at which his product is to be sold. And he may decline to deal with those who fail to observe his wishes. But he may not enter into a contract which undertakes to bind dealers to observe fixed retail prices.

Action at law to recover on a contract and note. To the answer of

the defendant, alleging that the contract violated the provisions of the Sherman Anti-Trust Act, plaintiffs demurred. The demurrer was overruled, and plaintiffs elected to stand on the demurrer, and judgment was entered against plaintiffs for costs. Plaintiffs appeal. Affirmed.

Nagle & Hill, of Clarion, and Mitchell & Files, of Ft. Dodge, for appellants.

Birdsall, McGrath & Archerd, of Clarion, for appellee.

Opinion of the Court Written by Judge De Graff

*

DE GRAFF, J.-The issue presented in this case is one of law arising on a demurrer to the defendant's answer. The action is in contract. Plaintiffs seek to recover from the defendant $3,150 with interest. It appears that on August 6, 1921, a written contract was entered into between the parties hereto whereby defendant, "in consideration of the sum of $1.20 each, or the total of $3.600, agrees to and does hereby purchase from the first party (plaintiffs) three thousand oil pipe. attachments for Ford automobiles." Under this contract 375 attachments were received, and the sum of $150 was paid therefor. It was further stipulated that the defendant should have the exclusive right and privilege to sell and distribute the

said attachments as purchased from the plaintiffs within the states of Wisconsin and Illinois for a period of one year, and that the defendant should be the sole representative as distributor of the patented attachment. It was further agreed:

"It being expressly understood that the second party (defendants) by themselves or any one for them shall not install the said attachments for less than $5.00 each and that they shall not by themselves or agents sell or otherwise dispose of any of the same outside of the territory herein described."

Upon the execution of the contract a note was signed by defendants in the sum of $3,600, due in 210 days from the date of the contract. The failure and refusal on the part of the defendant to accept or pay for the remainder of the attachments is the provocation for the instant suit.

The answer of the defendant al

leges, in substance, that the plaintiffs undertook and planned to suppress competition in the sale of their attachment throughout the several states; to maintain and enhance its price to the ultimate consumer; to fix $5 as its price to each user; that, in pursuance of the plan, and for the purpose of carrying it into effect, the contract in suit was devised; that this contract and other like contracts with

various individuals throughout the states were made, and that as a result thereof competition was suppressed throughout the states, and the price of the attachment to the consuming public was maintained and enhanced, and that said contract and all similar contracts resulted in restraint of trade, and are contrary to and in violation of the statutes of the United States, and void.

To this answer plaintiffs demurred on the following grounds:

(1) That the answer wholly fails to plead a defense in whole or in part to plaintiffs' cause of action..

(2) That the action is based upon a written contract, and that the matters set forth in said answer do not plead a defense thereto or any facts that would invalidate the contract or defeat plaintiffs' right to recover thereon.

(3) That the matters set forth in the answer tend to vary and contradict the terms and provisions of the written contract.

The question presented by the demurrer may be stated as follows: Can a patentee in connection with the act of delivering his patented article to another lawfully reserve by contract a part of his monopoly right to sell? The Supreme Court of the United States, the final authority on the principle involved, has answered in the negative. In United States v. Schrader's Son, 252 U. S. 85, 40 Sup. Ct. 251, 64 L. Ed. 471, it is said:

"It seems unnecessary to dwell upon the obvious difference between the situation presented when a manufacturer merely indicates his wishes concerning prices and declines further dealings with all who fail to observe them, and' one where he enters into agreementswhether express or implied from a course of dealing or other circumstances with all customers throughout the different states which undertake to bind them to observe fixed resale prices."

The fact that the article is patented is not material. After the right of sale has been exercised the article passes beyond the limits of the monopoly created by the patent. In the instant case the plaintiffs made a