NOTES. 129 held that as the hospital had used due care in the selection of the nurse they were not answerable for the plaintiffs injury. This decision seems correct on principle as well as on authority. As a general rule it is unjust to make a man who is personally free from fault answerable for the torts of another. The rule that makes a master liable for the torts of a servant appears to have but one justification that can stand the test of reason, namely, that as the master receives all the incidental benefits of his servant's labor he should also bear the incidental burdens. However well this may apply in the ordinary cases of agency, the justification seems wanting in a case like the present, where the real beneficiaries are the patients and not the corporation. As a practical matter it may be said also that unless the strongest reason demands it, the courts should not cripple the beneficent work of such institutions by forcing them to pay damages. Holding them liable when their trustees are personally blameless will not only work an injury to the public di- rectly, but will have an appreciable effect in the future in discouraging donations. Damages granted against corporations are notoriously large, and charitable persons will refuse to give if they are led to believe that their money will eventually go to pay undeserved judgments and lawyers' fees. A Limitation upon the Trans-Missouri Freight Decision. — In the decision of the Trans-Missouri Freight Case one loophole was left by which to escape the sweeping rule that all contracts in restraint of trade, even if reasonable, are void under the Trust Act of 1890. United States V. Trans- Missouri Freight Association, 166 U. S. 290. " A contract," said Mr. Justice Peckham, " which is the mere accompaniment of a sale of property, and thus entered into for the purpose of enhancing the price at which the vendor sells it, which is in effect collateral to such sale, and where the main purpose of the whole contract is accomplished by such sale, might not be included within the letter or spirit of the statute in question." Acting upon this dictum, the court in a recent New York case, in the Appellate Division of the Supreme Court, found the statute inapplicable to a case arising out of the following facts. The plaintiff had contracted with the defendant, for valuable consideration, to convey to him for a limited period his goodwill in the business of freighting the Haiti Packets and vessels for Port-au-Prince, agreeing not to solicit freight or to compete in the business during the term. The plaintiff now sued for the first three months' instalments of the purchase money, alleging performance on his part. The defendant contended that the plaintiff's agreement not to compete, although at common law it would have been binding as a reasonable restraint, was void under the Trust Act of 1890 ; and that this vitiated the whole contract. The court, how- ever, decided that since the agreement in question was merely collateral to the sale of the goodwill, it was therefore valid. Brett v. Esel, New York Law Journal, May 13, 1898. The decision of the New York court is salutary, and the court were certainly justified in making use of any reasonable loophole afforded by the United States Supreme Court. The reason of that loophole, however, is more in doubt. It is true, as Mr. Justice Peckham points out, that most of the contract? partially in restraint of trade that have been allowed have been collateral to transfers of property ; but the courts in those cases would have been rather surprised if they were told that they could
