25 L. ed. 989; Sullivan v. Haug, 82 Mich. Wheat. 270, 6 L. ed. 625; Clarke v. Roches548. 10 L. R. A. 263, 46 N. W. 795; Cov-ter, 24 Barb. 471. ington & L. Turnp. Road Co. v. Sandford, 164 U. S. 578, 41 L. ed. 560, 17 Sup. Ct. Rep. 198; New York, N. H. & H. R. Co. v. New York, 165 U. S. 628, 41 L. ed. $53, 17 Sup. Ct. Rep. 418; New York & N. E. R. Co. v. Bristol, 151 U. S. 556, 38 L. ed. 269, 14 Sup. Ct. Rep. 437; Ames v. Union P. R. Co. Inters. Com. Rep. 835, 64 Fed. 165; Brass v. North Dakota ex rel. Stoeser, 153 U. S. 391, 38 L. ed. 757, 4 Inters. Com. Rep. 670, 14 Sup. Ct. Rep. 857; Lowe v. Kansas, 163 U. S. 81, 41 L. ed. 78, 16 Sup. Ct. Rep. 1031; Duncan v. Missouri, 152 U. S. 377, 38 L. ed. 485, 14 Sup. Ct. Rep. 570; Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77, 69 Ill. 80.

v. Rogers, 64 Ill. 434; Evans v. Hughey, 76 | 483, 21 L. ed. 473; Dennehy v. McNulta, 41 Ill. 115: Clause v. Bullock Printing Press Co. 118 I. 612, 9 N. E. 201; United States v. Buchanan, 8 How. 83, 12 L. ed. 997; Dushane v. Benedict, 120 U. S. 630, 30 L. ed. 810, 7 Sup. Ct. Rep. 696; Scammon v. Kimball, 5 Biss. 431, Fed. Cas. No. 12,435.

L. R. A. 609, 30 C. C. A. 422, 59 U. S. App. 264, 86 Fed. 825; Jackson v. Akron Brick Asso. 53 Ohio St. 303, 35 L. R. A. 287, 41 N. E. 257; Greenhood, Pub. Pol. Rules 108, 109; Norton v. Blinn, 39 Ohio St. 145; Bishop v. American Preservers' Co. 157 Ill. 284, 41 N. E. 765.

The contracts between the defendant in

It does not appear that any agreements or contracts made by the defendant in error, and relating to the conduct of its busi-error and the manufacturers within the ness, are in restraint of interstate com

merce.

"Akron district," did not operate either in restraint, or partial restraint, of trade, nor did they amount to a conspiracy between the parties, to control prices, by creating a monopoly.

Fed. 104; Coquard v. National Linseed Oil
Co. 171 Ill. 484, 49 N. E. 563; Brown v.
Rounsavell, 78 Ill. 589; Linn v. Sigsbee, 67
Ill. 80: Hursen v. Gavin, 162 Ill. 377, 44 N.
E. 735; Cook v. Meyers, 166 Ill. 289, 46 N.
E. 765; Hudson v. Green Hill Seminary
Corp. 113 Ill. 618.

United States v. E. C. Knight Co. 156 U. S. 1, 39 L. ed. 325, 15 Sup. Ct. Rep. 249; Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 44 L. ed. 136, 20 Sup. Ct. Oregon Steam Nav. Co. v. Winsor, 20 Rep. 96; Hopkins v. United States, 171 U. Wall. 64, 22 L. ed. 315; Gibbs v. ConsoliS. 578, 43 L. ed. 290, 19 Sup. Ct. Rep. 40; dated Gas Co. 130 U. S. 396, 32 L. ed. 979, Re Greene, 52 Fed. 113. 9 Sup. Ct. Rep. 553; Dolph v. Troy LaunDefendant in error is a corporation, or-dry Mach. Co. 28 Fed. 553; Re Greene, 52 ganized under the laws, and is a citizen of the state of Ohio. The contract for the sale of the sewer pipe was made in the state of Ohio, and the property was delivered to plaintiffs in error free on board of cars at Akron, Ohio, and therefore the statutes of the state of Illinois cannot be pleaded as a defense. The title to the property passed from the vendor to the vendee on delivery. *Mr. Justice Harlan delivered the opin-[541] Parsons, Contr. p. 754; Adams v. Coul-ion of the court: liard, 102 Mass. 167; Roundtree v. Baker, 52 Ill. 241, 4 Am. Rep. 597; Schlee v. Guckenheimer, 179 Ill. 593, 54 N. E. 302; Liverpool & G. W. Steam Co. v. Phenix Ins. Co. 129 U. S. 397, 32 L. ed. 788, 9 Sup. Ct. Rep. 469.

The Union Sewer Pipe Company-a corporation organized under the laws of Ohio and doing business in Illinois-brought its action against Thomas Connolly, a citizen of Illinois, in the circuit court of the United States for the northern district of Illinois, on two negotiable promissory notes both

The state statute of 1893 is void as being in contravention of art. 2, § 2, of the Con-executed at Chicago by the defendant; one. stitution of the state of Illinois.

Ritchie v. People, 155 Ill. 98, 29 L. R. A. 79, 40 N. E. 454; Harding v. People, 160 Ill. 459, 32 L. R. A. 445, 43 N. E. 624; Braceville Coal Co. v. People, 147 Ill. 66, 22 L. R. A. 340, 35 N. E. 62; Millett v.

People, 117 Ill. 294, 57 Am. Rep. 869, 7 N.
E. 631; Frorer v. People use of School
Fund, 141 Ill. 171, 16 L. R. A. 492, 31 N.
E. 395; Cooley, Const. Lim. § 393.

State legislation of this character is also inhibited by the 14th Amendment to the Constitution of the United States.

Smyth v. Ames, 169 U. S. 522, 42 L. ed. 840, 18 Sup. Ct. Rep. 418; Duncan v. Missouri, 152 U. S. 377, 38 L. ed. 485, 14 Sup. Ct. Rep. 570; Gulf, C. & S. F. R. Co. v. El lis, 165 U. S. 150, 41 L. ed. 666, 17 Sup. Ct. Rep. 255; Yick Wo v. Hopkins, 118 U. S. 356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064; Ex parte Virginia, 100 U. S. 339, 25 L. ed. 676; Re Grice, 79 Fed. 627.

It is no defense to an action for goods sold and delivered that plaintiff is a member of an illegal trust or combination to interfere with the freedom of trade and commerce, since the illegality of the combination is collateral to the contract of sale, and cannot taint it with illegality, or make it contrary to public policy.

National Distilling Co. v. Cream City Importing Co. 86 Wis. 352, 56 N. W. 864; Brooks v. Martin, 2 Wall. 70, 17 L. ed. 732; Planters' Bank v. Union Bank, 16 Wall.

dated December 15th, 1894, the other dated January 15th, 1895, and each payable to the order of the plaintiff corporation ninety days after date at the First National Bank of Chicago.

These notes were given on account of the purchase by the defendant from the plaintiff of sewer pipe commonly known standard Akron pipe, at prices agreed upon between the parties.

as

The pipe company also brought an action in the same court against William E. Dee, a citizen of Illinois, upon an open account for $2,389.26, the value at agreed prices of certain pipe purchased by him from the plaintiff in June, 1896. The plaintiff suppliea the pipe under a written contract executed between it and the defendant in Illinois under date of August, 1895.

Each of the defendants filed a plea of the general issue, with notice of special de

fenses and of set-off.

The special defenses in each case were substantially the same. The notice in the Connolly Case was that the defendant on the trial of the action would rely on these special matters:

"First. That the plaintiff is, and at all times since about the 1st day of January, 1893, has been, a trust or combination of the capital, skill, and acts of divers persons and corporations carrying on a commercial business in the states of Ohio and Illinois and between said states and elsewhere in

the United States of America, and organ- | was, a combination in the form of a trust, ized for the express purpose of unlawfully in restraint of trade and commerce among and contrary to the common law creating the several states, and doing business as and carrying out restrictions in trade, to such throughout the United States and bewit, in the trade of buying, selling, and oth-tween the states of Ohio and Illinois, conerwise dealing in certain articles of mer- trary to the provisions of an act of Conchandise, to wit, sewer, and drainage pipes, gress of date of July 2d, 1890, and entitled [542 and also for the express purpose of *unlaw-An Act to Protect Trade and Commerce fully and contrary to the common law lim- against Unlawful Restraints and Monopoiting the production of said articles of mer- lies,' and that this action is brought solely chandise and increasing the market price to recover the price of articles of merchanthereof; and also for the express purpose dise, to wit, sewer and drainage pipes, sold of unlawfully and contrary to the common to the defendant by the plaintiff, then and law preventing competition in the manu- there acting and doing business as such a facture, making, transportation, sale, or combination, as aforesaid, in violation of purchase of said articles of commerce; also the provisions of said act. for the express purpose of unlawfully and "Thirdly. That the plaintiff is, and at all contrary to the common law fixing stand- times since the 1st of January, 1893, was, ards or figures whereby the prices of said a trust doing business as such in the state articles of merchandise intended for sale, of Illinois and elsewhere, contrary to the use, and consumption in this state should provisions of an act of the legislature_of be controlled and established; and also for the state of Illinois entitled 'An Act to Dethe express purpose of unlawfully and con- fine Trusts and Conspiracies against Trade, trary to the common law being a pretended Declaring Contracts in Violation of This agency whereby the sale of said articles of Provision Void, and Making Certain Acts commerce should and might be covered up and Violations Thereof Misdemeanors, and and made to appear to be for the original Prescribing Punishment Thereof and Matvendors thereof, and so as to enable the ters Connected Therewith, Approved June original vendors or manufacturers thereof 20th, 1893, in Force July 1st, 1893;' that to control the wholesale and retail price of this action is brought solely to recover the such articles of commerce after the title price of articles of merchandise, to wit, thereto had passed from such vendors or sewer and drainage pipes, sold to the demanufacturers; and for the further express fendant by the plaintiff, then and there purpose of unlawfully and contrary to the acting and doing business in violation of the common law making and entering into and provisions of said act, and that the defendcarrying out a certain contract or certain ant hereby pleads said act in defense to contracts by which the several persons or this action and the whole thereof." corporations forming the plaintiff, or be- The set-offs claimed by Connolly were: ing the pretended stockholders thereof, to Treble the amount of the actual damages wit, have bound themselves not to sell, dis-sustained and allowed by the act of Conpose of, or transport said articles of com-gress of July 2d, 1890, chap. 647, known as merce below certain common standard fig- the Sherman anti-trust act, $56,970.44; ures or card or list prices in excess of the actual damages sustained by reason of the true market values thereof, and by which violation by the plaintiff of the provisions they have agreed to keep the prices of said of the Illinois statute of July 1st, 1893, articles of commerce at certain fixed or $17,323.48; and for money had and received graduated figures, and by which they have by plaintiff of defendant contrary to law, established certain settled prices of said $17.323.48. articles of commerce between themselves and others, so as to preclude a free and unrestricted competition among themselves and others in the sale and transportation of said articles of commerce, and by which they have agreed to pool, combine, and unite any interests they may have in connection with the sale and transportation of said articles of commerce so that the prices thereof may effect advantageously to themselves; that all of the claims of the plaintiff against the defendant in this action arise wholly out of, and are in respect of, sales of said articles of merchandise made between the 1st day of January, A. D. 1893, and the 1st day of March, 1896, to this de[543]fendant by the plaintiff in the ordinary course of its business as such a trust or combination acting as aforesaid, and that this action is brought to recover the alleged price thereof and for no other pur

pose.

"Secondly. That the plaintiff is, and at all times since the 1st day of January, 1893,

The set-offs claimed by Dee were of like character, but of larger amounts.

*Both cases were, by agreement, submit-[544] ted to the same jury, and were treated as one consolidated case. At the trial the defendants respectively asked leave to amend their notices of special defenses, but leave was denied.

The circuit court disallowed both the first and second of the above special defenses, and in respect of the third its decision was that the Illinois trust statute of 1893 was in violation of the Constitution of the United States. It consequently directed the jury to find a verdict for the plaintiff in each case: in the Connolly Case, for the amount of the two notes sued on: in the Dee Case, for the amount of the plaintiff's open accounts against him. Verdicts having been returned as directed, and a motion for new trial in one case, and motions for new trial and in arrest of judgment in the other, having been overruled, judgments were entered on the verdicts.

1. The defendant in error insists that these tion did not prevent the plaintiff corporacases should have gone to the circuit court tion from selling pipe that it obtained from of appeals, and has moved on that ground its constituent companies or either of them. that the writ of error be dismissed. The It could pass a title by a sale to anyone defense in each case was based in part on desiring to buy, and the buyer could not the Illinois statute of 1893. The plaintif justify a refusal to pay for what he insisted at the trial that that statute was bought and received by proving that the in violation of the Constitution of the seller had previously, in the prosecution of United States, and its position was sus-its business, entered into an illegal combitained by the circuit court. There have nation with others in reference generally to been suits in which the circuit court upon the sale of Akron pipe. the claim of the defendant has applied the Constitution of the United States to the case before it, and put the plaintiff out of court. Here, the plaintiff claimed that the state enactment upon which defendants re-action against the plaintiffs for the inlied was unconstitutional, and its position upon that point was sustained. In Loeb v. Columbia Twp. 179 U. S. 472, 477, 45 L. ed. 280, 285, 21 Sup. Ct. Rep. 174, 177, this court said: "The circuit court of appeals act does not declare that the final judg ment of a circuit court in a case in which there was a claim of the repugnancy of a state statute to the Constitution of the United States may be reviewed here only upon writ of error sued out by the party making the claim. In other words, if a claim is made in the circuit court, no matter by which party, that a state enactment is invalid under the Constitution of the United States, and that claim is sustained or rejected, then it is consistent with the words of the act, and, we think, in harmony [545]with its object, that this court review the judgment at the instance of the unsuccessful party, whether plaintiff or defendant. It was the purpose of Congress to give opportunity to an unsuccessful litigant to come to this court directly from the circuit court in every case in which a claim is made that a state law is in contravention of the Constitution of the United States." Upon the authority of that case, the motion to dismiss is denied.

In Strait v. National Harrow Co. 51 Fed. S19, a suit in which the plaintiffs sought a permanent injunction restraining the defendant from instituting or prosecuting any fringement of letters patent owned by the defendant covering certain improvements in spring-tooth harrows, *or from instituting[546] or prosecuting any such suits against any person using the spring-tooth harrows manufactured by the plaintiffs, the court said: "In substance, the complaint shows that the defendant has entered into a combination with various other manufacturers of spring-tooth harrows for the purpose of acquiring a monopoly in this country in the manufacture and sale of the same, and, as an incident thereto, has acquired all the rights of the other manufacturers for the exclusive sale and manufacture of such harrows under patents, or interests in patents, owned by them respectively. Such a combination may be an odious and wicked one, but the proposition that the plaintiffs, while infringing the rights vested in the defendant under letters patent of the United States, is entitled to stop the defendant or prosecuting any suit from bringing therefor because the defendant is an obnoxious corporation, and is seeking to perpetuate the monopoly which is conferred upon it by its title to the letters patent, is a novel one, and entirely unwarranted. The party having such a patent has a right to bring suit on it, not only against a manu

and users of the patented article, if he believes the patent is being infringed; and the motive which prompts him to sue is not open to judicial inquiry, because, having a legal right to sue, it is immaterial whether his motives are good or bad, and he is not required to give his reasons for the attempt to assert his legal rights. The exercise of the legal right cannot be affected by the motive which controls it.' Kiff v. Youmans, 86 N. Y. 329, 40 Am. Rep. 543."

2. The defendant Connolly purchased Akron sewer pipe from the plaintiff. and for the agreed price thereof gave the two prom-facturer who infringes, but against dealers issory notes upon which he was sued. The defendant Dee also purchased Akron sewer pipe at an agreed price as shown by the account upon which he was sued. Each de fendant disputed his liability to the plaintiff upon the ground that prior to the making of the contracts with the defendants respectively for pipe, the plaintiff corporation entered into a combination with certain firms, corporations, and companies engaged in Ohio in the manufacture of Ak ron pipe which combination, it is alleged, was in illegal restraint of trade, and therefore forbidden by the principles of the common law as recognized and enforced both in Ohio and Illinois.

This defense cannot be maintained. Assuming, as defendants contend, that the alleged combination was illegal if tested by the principles of the common law, still it would not follow that they could, at common law, refuse to pay for pipe bought by them under special contracts with the plaintiff. The illegality of such combina

In National Distilling Co. v. Cream City Importing Co. 86 Wis. 352, 355, 56 N. W. 864, 865, which was an action to recover the price of goods sold and delivered, one of the defenses was the plaintiff was a member of an illegal trust or combination to interfere with the freedom of trade and commerce. The supreme court of Wisconsin said: "The first defense does not deny any allegation of the complaint, but the substance of it is that the sale and delivery of the goods in question to the defendant was void as against public policy, because the

vendor was at the time a member of an un- | nation is illegal, or that its prices were unlawful trust or combination, formed to un- reasonable." lawfully interfere with the freedom of It is undoubtedly the general rule that a [547] trade and commerce *and in restraint there- contract made in violation of a statute is of and to accomplish the ends therein set void, and no recovery can be had upon it, forth. Conceding, for the purposes as in Embrey v. Jemison, 131 U. S. 336, of this case, that the trust or combination 348, 33 L. ed. 172, 177, 9 Sup. Ct. Rep. in question may be illegal, and its members 776. That was an action upon a promismay be restrained from carrying out the sory note given in execution of a contract purposes for which it was created by a court for the purchase of "future delivery" cotof equity in a suit on behalf of the public, ton, neither the purchase nor delivery of acor may be subject to indictment and pun- tual cotton being contemplated by the parishment, there is, nevertheless, no allega- ties, but the settlement in respect to which tion showing or tending to show that the was to be on the basis of the "difference" contract of sale between the plaintiff and between the contract price and the market defendant was tainted with any illegality, price of cotton futures, according to the or was contrary to public policy. The ar- fluctuations in the markets. The contract gument, if any the case admits of, is that, was held to be a wagering contract, and as the plaintiff was a member of the so- therefore illegal and void. As there could called 'trust,' or 'combination,' the defend- be no recovery upon the original agreement ant might voluntarily purchase the goods without disclosing the fact that it was illein question of it at any agreed price, and gal and one that could not, for that reason, convert them to its own use, and be justi- be enforced or made the basis of a judgment, fied in a court of justice in its refusal to it was held that attention could not be withpay the plaintiff for them, because of the drawn from the illegality of the contract connection of the vendor with such trust or by the device of taking notes for the amount combination. The plaintiff's cause of ac- claimed under that contract. So, in Miller tion is in no legal sense dependent upon, or v. Ammon, 145 U. S. 421, 427, 36 L. ed. 759, affected by, the alleged illegality of the 762, 12 Sup. Ct. Rep. 884, 887. That was trust or combination, because the illegality, an action to recover the value of 1,125 galif any, is entirely collateral to the transac- lons of wines sold in Chicago by one who tion in question, and the court is not called had not obtained a license to sell liquors at upon in this action to enforce any contract all, an ordinance of that city expressly tainted with illegality, or contrary to public declaring that no person, firm, or corporapolicy. The mere fact that the plaintiff tion should sell or offer for sale "any spiris a member of a trust or combination, cre- ituous or vinous liquors in quantities of 1 ated with the intent and purposes set forth gallon or more at a time, within the city, in the answer, will not disable or prevent without having first obtained a license it in law from selling goods within or af- therefor," under a penalty of not less than fected by the provisions of such trust or $50 or more than $200 for each offense. It combination, and recovering their price or was held that the action could not be mainvalue. It does not appear that it had stip-tained, because "an act done in disobedience ulated to refrain from such transactions. to the law creates no right of action which A contrary doctrine would lead to most a court of justice will enforce." In that startling and dangerous consequences." case the sale from which it was attempted That case was cited with approval by the to imply the promise of the buyer to pay circuit court of appeals for the seventh cir- for what he received was itself expressly 549] cuit in Dennehy v. McNulta, 41 L. R. A. forbidden by law under a penalty. The ac609, 611, 612, 30 C. C. A. 422, 424, 427, 59 tion there was upon the sale, and there was U. S. App. 264, 270, 273, 86 Fed. 825, 827, a direct connection between it and the pur829. In that case the court said: "The chase of the wines. So, again, in McMulmere fact that the corporation, as one of len v. Hoffman, 174 U. S. 639, 654, 43 L. the contracting parties, may constitute an ed. 1117, 1123, 19 Sup. Ct. Rep. 839, 845, unjust monopoly, and that its general busiafter an extended review of the cases, ness is illegal-a status apparently held in American and English, the court said: "The Distilling & Cattle Feeding Co. v. People authorities from the earliest time to the ex rel. Moloney, 156 Ill. 448, 41 N. E. 188. present unanimously held that no court will cannot serve, ipso facto, to create default lend its assistance in any way toward carryor liability on its contracts generally; nor ing out the terms of an illegal contract." can such fact be invoked collaterally to af[548]fect in any manner its independent contract obligations." Again: "In the case of an injurious combination of the nature assert ed here, the remedy is by well-recognized and direct proceedings; but one who voluntarily and knowingly deals with the parties so combined cannot, on the one hand, take the benefit of his bargain, and, on the other, have a right of action against the seller for the money paid, or any part of it. either upon the ground that the combi

In the present case other considerations must control. This is not an action to enforce or which involves the enforcement of the alleged arrangement or combination between the plaintiff corporation and other corporations, firms, and companies in relation to the sale of Akron pipe. As already suggested, the plaintiff, even if part of a combination illegal at common law, was not for that reason forbidden to sell property it acquired or held for sale. The purchases by the defendants had no necessary or direct