of the Sherman Anti-Trust Law. The substance of the activity of the defendant in each instance was an attempt to establish a uniform price for resale by the dealers to whom it sold that product. In neither of the cases was it charged that the defendant had monopolized or attempted to monopolize any part of its industrial field. In each case the defendant manufactured 'branded,' or 'specialty,' goods.

In one of the two cases, United States v. Colgate & Co., the defendant accomplished this purpose by giving the dealers notice of the uniform prices to be charged for the goods, and informing them that in case of departure from the specified prices no more goods would be sold to them. To this policy the defendant vigorously and rigidly adhered, with the result-as the indictment charged-that a uniform price of resale was maintained. Upon a demurrer it was held that this indictment failed to charge any offense. In the case of United States v. A. Schra der's Sons, Inc., a similar maintainance of resale price was attained by means of contracts between the defendant and the dealers. The trial court sustained a demurrer to the indictment on the ground that the Dr. Miles case has been overruled by the Colgate decision. The trial court pointed out that, in its opinion, there was no real difference upon the facts between the cases, and said: "The only difference is that in the former (the Miles case) the arrangement for marketing its product was put in writing, whereas in the latter the wholesale and retail dealers observed the price fixed by the vendor. This is a distinction without a difference. The tacit acquiescence of the wholesalers and retailers in the prices thus fixed is the equivalent for all practical purposes of an express agreement.' This decision of the trial court was, however, reversed by the Supreme Court, Mr. Justice Holmes and Mr. Justice Brandeis dissenting, with Mr. Justice Clarke concurring only in the result.

Sherman Act of July 2, 1890, c. 647, Sec. 1; 26 Stat. at. L. 209: "Every contract, combination in the form of a trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations, is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor. . . .” 'Supra, note 1.

Ibid.

"Opinion quoted on page 3 of Supreme Court's opinion.

In view of the opinion of the court below, and of the dissent, the Supreme Court seems almost cavalier in the statement: '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 agreements whether express or implied from a course of dealing or other circumstances—with all customers throughout the different states which undertake to bind them to fixed resale prices." The business result of the two methods is the same, and if contracts to the end in question fall within the prohibition of the Sherman Law, it is to be remembered that that prohibition is not limited to 'contracts,' but extends to 'combinations' and 'conspiracies.' But the court even blurs the technical line which it draws between contract and no contract with its talk concerning agreements 'implied from a course of dealing or other circumstances.' What the decision of the court would be, for instance, in the case of an agreement by a manufacturer to give a rebate to the dealers who maintained his uniform prices, seems quite uncertain."

The decision in the Miles case has been ably and, it is believed, deservedly criticized. Practically all other courts in which the question had been raised had reached the contrary result." Subsequent decisions in state courts have refused to follow it." The undesirability, as a matter of economics, of the predatory price-cutting to which the decision gives rise, can

'Page 5 of the opinion.

Such agreements were uniformly upheld before the decision in the Miles case. In re Greene, 52 Fed. 104 (1894). Clarke v. Frank, 17 Mo. App. 602 (1885); Park & Sons v. Nat'l Wholesale Druggists Ass'n, 175 N. Y. 1, .67 N. E. 136 (1903).

'See Kales, Contracts and Combinations in Restraint of Trade (Summary), Chap. IV. See also Charles L. Miller, The Maintenance of Uniform Resale Prices, 54 U. of Pa. L. Rev. 22.

"Elliman Sons & Co. v. Carrington & Son, L. R. 2 Ch. 275 (1901); Grogan v. Chaffee, 156 Cal. 611, 105 Pac. 745 (1909); Garst v. Harris, 177 Mass. 72, 58 N. E. 174 (1900); New York Ice Co. v. Parker, 21 How. Pr. (N. Y.) 302 (1861).

"Ghirardelli Co. v. Hunsicker, 164 Cal. 355, 128 Pac. 1041 (1912); Fisher Flour Milling Co. v. Swanson, 76 Wash, 649, 137 Pac. 144 (1913).

scarcely be denied." Yet perhaps the case has become too firmly fixed as a principle of decision in the federal courts to make it desirable to overrule it at this late date and perhaps the remedy is now rather for the legislature." But, even so, that is not a valid reason for introducing a new technical distinction into a field of judicially interpreted public policy which has already become stigmatized by an adherence to the letter rather than the spirit. Having decided the Colgate case as it was decided, it seems unfortunate that the Supreme Court did not go the full distance and overrule the Miles case. As the decisions stand, the Colgate case is an exception to an undesirable rule, and the existence of a bad rule has been prolonged altogether too often in the law by the multiplication of virtuous exceptions."

$194. MEACHAM v. JAMESTOWN, FRANKLIN AND CLEARFIELD RAILROAD CO.

Court of Appeals of New York, 1914. [211 N. Y. 346.] The contract contained the following provisions:

"In order to prevent all disputes and misunderstandings between them in relation to any of the stipulations contained in this agreement, or their performance by either of said parties, it is mutually understood and agreed that the said Chief Engineer shall be and hereby is made arbitrator to decide all matters in dispute arising or growing out of this contract between them, and the decision of said Chief Engineer on any point or matter touching this contract shall be final and conclusive between the parties hereto, and each and every of said parties hereby waives all right of action, suit or suits or other remedy in law or otherwise under this contract or arising out of the same to enforce any claim except as the same shall have been determined by said arbitrator."

"An enlightening account of this economic effect can be found in the hearings of the Stevens Bill (H. R. 13305) before the Committee on Interstate and Foreign Commerce in the House of Representatives, 63rd Congress, 2nd and 3rd Sessions (Feb. 27, 1914, to Jan. 9, 1915).

13 See the opinion of Mr. Justice Brandeis in Boston Store of Chicago v. American Graphophone Co., 246 U. S. 8, 27 (1918). [Cf. also, Montague, Should the Manufacturer have the right to fix selling prices? 63 An. of the Am. Acad. of Pol. Soc. Sci., 55. On the whole subject of Contracts in Restraint of Trade, see books with this title by Kales (Chicago, 1918), and Jolly (London, 1914, 2d ed.) EDRS.]

The trial justice before whom the issue was submitted determined as matter of law that submission to the arbitrator named in the contract, the chief engineer, and an award by him was and is a valid condition precedent to the plaintiff's right to sue.

CARDOZO, J.: An agreement that all differences arising under a contract shall be submitted to arbitration relates to the law of remedies, and the law that governs remedies is the law of the forum. In applying this rule, regard must be had not so much to the form of the agreement as to its substance. If an agreement that a foreign court shall have exclusive jurisdiction is to be condemned (Benson v. Eastern B. & L. Assn., 174 N. Y. 83; Nute v. H. M. Ins. Co., 6 Gray, 174, 180; Slocum v. Western Assur. Co., 42 Fed. Rep. 235; Gough v. Hamburg Am. Co., 158 Fed. Rep. 174), it is not saved by a declaration that resort to the foreign court shall be deemed a condition precedent to the accrual of a cause of action. A rule would not long survive if it were subject to be avoided by so facile a device. Such a contract, whatever form it may assume, affects in its operation the remedy alone. When resort is had to the foreign tribunal for the purpose of determining whether certain things do or do not constitute a breach, the cause of action must in the nature of things be complete before jurisdiction is invoked, and cannot be postponed by the declaration that it shall not be deemed to have. matured until after judgment has been rendered. This must be so whether the tribunal is a court or a board of arbitrators. Indeed, the considerations adverse to the validity of the contract are more potent in the latter circumstances, for in the one case we yield to regular and duly organized agencies of the state and in the other to informal and in a sense irregular tribunals. (Mittenthal v. Mascagni, 183 Mass. 19, 23.) In each case, however, the fundamental purpose of the contract is the same: to submit the rights and wrongs of litigants to the arbitrament of foreign judges to the exclusion of our own. Whether such a contract is always invalid where the tribunal is a foreign court, we do not need to determine. There may conceivably be exceptional circumstances where resort to the courts of another state is so obviously convenient and reasonable as to justify our own courts in yielding to the agreement of the parties and declining jurisdiction. (Mittenthal v. Mascagni, supra.) If any exceptions to the general rule are to be admitted, we ought not to extend them to a contract where the exclusive jurisdiction has been bestowed, not on the regular courts of another sovereignty, but on private arbitrators. Whether the attempt to bring about this result takes the form of a condition precedent or a covenant, it is equally ineffective.

A very similar question was involved in Benson v. Eastern Bldg. & L. Assn. (174 N. Y. 83, 86). It was there argued that a provision requiring a trial in a certain county was intended, not as a limitation of the remedy, but as a condition precedent to a cause of action. CULLEN, J., writing for this court, disposed of the point in a few words:

"We think this argument proves too much. It is difficult to see why it would not uphold an agreement that all claims against the parties should be determined by arbitrators and not by the courts. It might be said with as much force in such a case as in the one now before us that the cause of action could, under the agreement, accrue only on the decision of the arbitrators. Yet nothing is better settled than that agreements of the character mentioned are void. (Greason v. Keteltas, 17 N. Y. 491; Prest., etc., D. & H. Canal Co. v. Pennsylvania Coal Co., 50 N. Y. 250.) We think the doctrine of the Nute Case (6 Gray, 174) is the true one, that the stipulation affects the remedy, not the cause of action.”

Building contracts are made in New York to be performed. all over the United States. If the judgment of the court below is to stand, jurisdiction over controversies arising under such contracts may be withdrawn from our courts and the litigation remitted to arbitrators in distant states. The presence of the parties here, the ownership of property in this jurisdiction, these and other circumstances may make resort to our courts essential to the attainment of justice. If jurisdiction is to be ousted by contract, we must submit to the failure of justice that may result from these and like causes. It is true that some judges have expressed the belief that parties ought to be free to contract about such matters as they please. In this state the law has long been settled to the contrary. (Sanford v. Commercial Travelers' Mut. Acc. Assn., 86 Hun, 380; 147 N. Y. 326; Nat. Contracting Co. v. Hudson R. W. P. Co., 192 N. Y. 209. See also Miles v. Schmidt, 168 Mass. 339; Fisher v. Merchants' Ins. Co., 95 Me. 486.) The jurisdiction of our courts is established by law, and it is not to be diminished, any more than it is to be increased, by the convention of the parties.

$195. Arbitration Agreements.-In the matter of arbitration agreements, two contradictory tendencies have manifested themselves in the attitude of courts. On the one hand, there is the notion expressed in this case that courts cannot be ousted from their jurisdiction by an agreement between parties. On the other hand, however, it is the settled practice where parties