of contracts in the restraint of trade; but, as it was made under a condition of things different from those which now prevail, the rule laid down is not regarded as inflexible and has been considerably modified. Public welfare is first considered, and if it be not involved and the restraint upon one party is not greater than protection to the other party requires, the contract may be sustained. The question is whether, under the particular circumstances of the case, and the nature of the particular contract involved in it, the contract is or is not unreasonable.[1]
The Court of Appeals of New York say that they "do not think that competition is invariably a public benefaction, for it may be carried on to such a degree as to be an evil."[2] And in the famous case against the Sugar Trust, Mr. Justice Barrett, of the Supreme Court of New York, who tried the case at Circuit, in rendering his opinion, upon deciding the case, impressively said:
Excessive competition may sometimes result in actual injury to the public and competitive contracts to avert personal ruin may be perfectly reasonable. It is only when such contracts are publicly oppressive that they become unreasonable and are condemned as against public policy.[3]
That was a notable decision and this is notable language from a judge at Circuit, at a moment when the public temper was inflamed against combinations of capital, in a case involving vast interests, when "kill trusts" was in the air, when the case had been tried with consummate ability upon behalf of the People, and argued to the court with an ingenuity and eloquence not often heard in these degenerate days in courts of justice, when all the ancient learning had been massed, when the sentiments of the middle age upon the subject had been most persuasively urged upon the court in rounded periods and polished phrase, and when a trial court might well have been excused for indulging in a little rhetoric in the popular vein. His honor after all calmly said: "excessive competition may sometimes result in
