tion. Under the statute, the husband or wife take only if the deceased die intestate seized of the estate, and they take in fee; they take also subject to the liability of having the land sold to pay the debts of the deceased and the expenses of administration. If there ever was any doubt about this, the doubt was removed by statute of 1881-chap. 112, § 1 - which amended statute of 1880-chap. 221, 1-by inserting after the word "deceased" the words "remaining after the payment of the debts of the deceased." See Pub. Stats., chap. 134, § 2. In all essential respects the husband or wife take an estate in fee under statute of 1880- chap. 221, § 1-precisely as an heir takes, and we think they are to be considered as statutory heirs.

Although in the case at bar the heirs of Susan do not take from her by inheritance, but take as persons designated by the will, yet we know of no way of determining the persons intended by the will except by ascertaining the persons who, by law, would have inherited the estate from her if she had died siezed of it and intestate. If, in determining who are heirs, we depart from our statutes and go back to the common law, or to the customary law of the county of Kent in gavelkind tenures, we might be required to recognize rules of descent for estates in fee-simple which have not been in force in the territory of this Commonwealth since the passage of chapter 14 of the Province Laws 1692-3. 1 Province Laws, * 43. See ancient charters, chap. 104, $3 (1641). In cases where the word "heirs" in a deed or will has been construed to mean distributee of personal property under the statute of distribution, and that statute has given the whole or a part of the personal property of a deceased husband or wife to the wife or the husband, they have taken the property in the same manner as under the statute. Sweet v. Dutton, 109 Mass. 589; Minot v. Harris, 132 id. 528; Houghton v. Kendall, 7 Allen, 72; In re Steevens' Trust, L. R., 15 Eq. 110; Jacobs v. Jacobs, 16 Beav. 557; Doody v. Higgins, 2 K. & J. 729; Wingfield v. Wingfield, 9 Ch. Div. 658, 666.

By the English courts the husband is excluded from, while the wife. is included among, the distributees of personal estate, because it is held that a husband does not take the personal estate of a deceased wife by virtue of the statute of distribution. In the case at bar the husband takes the estate under the statute, and not by virtue of any marital rights at common law. Milne v. Gilbert, 2 De Gex, M. & G. 715; 5 id. 509. In many of the cases in which it has been decided that the husband is not heir to the wife, or the wife to the husband, there has been no statute which has given to either, in the real property left by the other, any such estate as that given by statute 1880, chapter 211, section 1. Pub. Stats., chap. 124, § 1.

The judgment is reversed, and as the case is submitted upon agreed facts, judgment may be entered without regard to the form of the pleadings. Judgment should be entered for the demandants for three undivided fourth parts of the land demanded, and for the tenant for one undivided fourth part, and for his costs accruing since he filed his plea, under which he disclaimed title to three undivided fourth parts. Cole v. Eastman, 124 Mass. 307; Pub. Stats., chap. 173, § 9. So ordered.

CENTRAL ROLLER SHADE Co. v. CUSHMAN.

January 11, 1887.

CONTRACT-RESTRAINT OF TRADE - PUBLIC POLICY.

An agreement between individuals who, have formed themselves into a corporation for the purpose of manufacturing and selling a certain patented article, and by the terms of which a uniform price is fixed for the sale of the article by the members of the company, which price could only be changed by the company, but which puts no restraint upon the amount of production or sale of the article by the members of the company, is not void as being in restraint of trade or against public policy.*

Bill in equity to enforce an agreement between the plaintiff corporation of the one part and the defendant and two others of the second part. The bill states that the defendant and two others were engaged in the manufacture of a certain fixture, known as "the wood balance shade roller," under certain patents owned by them, and desired to enter into an arrangement by which competition might be avoided; that the plaintiff corporation was formed, to which the parties assigned their patents, receiving each a certain part of the capital stock; that after the incorporation the parties entered into an agreement, dated April 18, 1883. The substance of this agreement is as follows:

First. The parties of the second part give to the plaintiff corporation the sole and exclusive right and license for three years to sell all wood balance shade rollers, manufactured by them, with an express license under all letters-patent owned or controlled by them; they, the parties of the second part, agreeing that they will not directly or indirectly sell any such rollers during the term, except as agents for the corporation, excepting, however, a right to sell for jobbing or retail in lots of not exceeding five gross.

Second. The corporation agrees to use its best endeavors to promote and extend the sale by such means as may be deemed advisable by its directors.

Third. The corporation agrees to take the rollers of the parties of the second part at specified prices, stated in the agreement, or such other prices as shall be fixed by the directors of the corporation upon the recommendation of a three-quarter vote of the stockholders of the corporation, and the corporation shall be entitled to retain the remainder of the price, which it shall obtain as its compensation for making sales, and guaranteeing payments. If any changes in prices shall be made the changes shall apply to all rollers in that grade irrespective of the manufacturer, and no change shall be made which shall discriminate against any one of the parties of the second part.

The fourth to the seventh items of the agreement settle the details of payments and accounts.

Items 8 and 9 provide that the corporation shall not employ any salesmen or travelers for taking orders for goods sold under this agreement; but all orders received at the office of the corporation from any source, other than parties of the second part, may be filled, if approved, by the corporation. Each of the parties of the second part shall have

*See 36 Eng. Rep. 49, note.

the right to take orders and employ salesmen or travelers to sell and take orders for such goods at the regular adopted prices. Any one of the parties of the second part shall have the exclusive agency in one or more towns; and all said parties of the second part shall be notified when such agencies exist. Parties of the second part shall receive a commission upon all orders which shall be approved and accepted by the corporation. All goods so sold shall be delivered by the corporation, who alone shall collect the purchase-money. It being understood that either of the parties of the second part, their agents, or any firm of which they may be a member, purchasing goods of the corporation for their jobbing or retail trade, shall not receive any commissions on such purchases. If parties of second part take orders, which are rejected by the corporation, they shall have the right to have the same filled, provided they will guarantee the payment of the amount of same to the corporation within two months of the date of the bill. Parties of the second part shall be responsible for the acts of their employees in violation of this agreement. In all cases, however, in which the agreement shall be violated by an agent, without the knowledge of, or against the protest or instructions of the employer, then the damages shall be left to the discretion of the directors of the corporation.

Items 10 and 11 provide that parties of the second part shall not, during the term of the contract, dispose of their patents, trade-marks or good-will of their business, except upon such terms that a transferee shall be bound by the contract. The corporation shall have no power to grant licenses to any other person to use any patent, label or trademark without special written permission of the party of the second part owning such patent, label or trade-mark. Neither party of the second part is to infringe any of the patents of any other party.

Items 12 to 22 provide for details in introducing new patterns; for ordering wire and rollers for manufacture; for arbitration in case of dispute; for suits by corporation against infringers for penalty for breach of this agreement; prohibit sales of shares by the parties of the second part, or either of them, without the written assent of a majority of the stockholders of the corporation; allow manufacture by any party for another; provide for winding up the business at the expiration of the term, and for details of freight, and allow parties of the second part to sell goods strictly for export at such prices as they may agree upon.

The defendant demurred to the bill. At the hearing before a single justice the demurrer was sustained and the plaintiff appealed.

J. B. Warner, for plaintiff.

M. Storey, for defendant, cited Craft v. McConoughy, 79 Ill. 346: Raymond v. Leavitt, 46 Mich. 447; India Bagging Asso. 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 Penn. St. 173; Stanton v. Allen, 5 Denio, 434; Arnot v. Pittston & Elmira Coal Co., 68 N. Y. 558; Keeler v. Taylor, 53 Penn. St. 467; Calumet & Hec. Min. Co. v. Quincy Min. Co., N. Y. Sup. Ct., not reported; Saratoga County

VOL, IX.-71

Bank v. King, 44 N. Y. 87; Hartf. & N. H. R. R. Co. v. N. Y. & N. H. R. R. Co., 3 Robertson, 411.

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 contract. The general purpose of 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 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 or the sale of balance 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 toward 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 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 the 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 certain fixture of the parties' own manufacture. It does not look to affecting competition from outside-the parties have a monoply 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 any thing which renders it invalid or calls for special consideration.

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

SLATER WOOLEN Co. v. LAMB.

January 11, 1887.

CORPORATION-CONTRACT-ULTRA VIRES.

A corporation which has exceeded its corporate powers by making a sale of goods to the defendant, which he received and retained, but which sale was prohibited by law or void as against public policy, may, nevertheless, maintain an action of contract against the purchaser to recover the value of the goods.

Action of contract upon an account annexed for goods sold and delivered between July 1, 1875, and August 28, 1877. At the trial in the superior court, the plaintiff introduced evidence tending to show that the defendant had purchased and received the goods, as charged in the plaintiff's declaration, but the defendant denied having bought the goods of the plaintiff or at the plaintiff's store. The plaintiff also introduced evidence of its incorporation. It was agreed that the business was carried on in the name of Samuel Slater & Sons until July 1, 1876, and in the name of H. N. Slater between July 1, 1876, and March 1, 1877, after which it was carried on in the name of the Slater Woolen Company.

The defendant contended that he did not purchase the goods of the plaintiff, but from Samuel Slater & Sons and H. N. Slater. It appears from the evidence that the defendant was not employed by the plaintiff and did not know that the plaintiff owned the store. The plaintiff contended that the company was the sole owner of the store and carried on the business in the name of Samuel Slater & Sons and H. N. Slater, but gave no notice of the fact to the world. It also appeared that the