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resented to prospective purchasers of Ford cars that they were "Ford agents.” Admittedly they resorted to these practices for the purpose of deceiving, and there can be no question that the means employed were well adapted to that purpose. It may be that some people, with knowledge of the actual conditions, would purchase cars from the defendants for $25 below the current price, but, upon the other hand, it may very well be assumed that others would prefer to pay the additional $25 for the assurances and security supposed to attend purchases through a regular agency, and in its enjoyment of the trade which would naturally come to it from this latter class the plaintiff is entitled to protection against the defendants' unfair and deceptive practices.

[2] Passing now to a consideration of the validity of the agency contract: The defendants attach controlling significance to the fact that the consignee must pay the full money consideration before or at the time he receives the cars; the argument being that such payment ipso facto operates to transfer an unqualified title, notwithstanding the express agreement of the parties to the contrary. It is urged that the contract is only an adroit attempt to avoid the effect of certain decisions of the Supreme Court of the United States, such as Bobbs-Merrill Co. v. Straus, 210 U. S. 339, 28 Sup. Ct. 722, 52 L. Ed. 1086, Dr. Miles Medical Co. v. John D. Park & Sons, 220 U. S. 373, 31 Sup. Ct. 376, 55 L. Ed. 502, Standard Sanitary Mfg. Co. v. United States, 226 U. S. 20, 33 Sup. Ct. 9, 57 L. Ed. 107, Bauer & Cie v. O'Donnell, 229 U. S. 1, 33 Sup. Ct. 616, 57 L. Ed. 1041, 50 L. R. A. (N. S.) 1185, Ann. Cas. 1915A, 150, and Straus v. American Publishers' Ass'n, 231 U. S. 222, 34 Sup. Ct. 84, 58 L. Ed. 192, L. R. A. 1915A, 1099, Ann. Cas. 1915A, 369, and that it runs counter to the principles recognized in Straus v. Victor Talking Machine Co. (No. 374) 243 U. S. 490, 37 Sup. Ct. 412, 61 L. Ed. 866, decided April 9, 1917, and perhaps of the companion case, Motion Picture Patents Co. v. Universal Film Co., 243 U. S. 502, 37 Sup. Ct. 416, 61 L. Ed. 871, decided at the same time. The plaintiff cites, among others, Bement v. National Harrow Co., 186 U. S. 70, 22 Sup. Ct. 747, 46 L. Ed. 1058, and United States v. Keystone Watch Co. (D. C.) 218 Fed. 502, 514. It is to be admitted that the plaintiff, before parting with possession of its cars, requires the payment by the consignee of the entire money consideration which it expects to receive. Indeed, if the aggregate of the sales consummated by the consignee in a year exceeds a certain amount, the plaintiff is under obligation to return to it a part of the advance payment, by way of commissions. The defendants' contention, however, ignores the fact that there are other considerations deemed by the plaintiff to be valuable, and without the promise of which it would doubtless decline to enter into the contract. It agrees with the consignee that, in consideration of his paying 85 per cent. of the list retail price and of his promise to sell only within a certain territory to a user for a stipulated price, it will consign the car to him, but will retain title thereto until it shall have received the full consideration. May the consignee, knowing that the plaintiff will not deal with him unless he executes such a contract, assent to all of such


conditions, but with the intention of abiding by only one of them, and, upon the performance of this one, secure the absolute title to the car? If, instead of providing for the consignee's possession as soon as he pays the stipulated amount, it were agreed that the plaintiff should retain possession and deliver only to the purchasing user, could the consignee require delivery to himself, or to a dealer for resale? Or, if, instead of receiving payment of 85 per cent., the plaintiff received but 80 or 84 per cent., with the understanding that the right, and the only right, obtained by the consignee was to have possession of the car, with the power to negotiate a sale thereof to a user, to whom, and to whom only, the plaintiff would be bound to convey the title upon receiving the remaining 5 per cent., or 1 per cent., as the case might be, would there be any doubt of the retention of the title by the plaintiff, with the right to decline to convey to anyone other than the purchasing user? But other considerations are sometimes quite as valuable as the money to be paid for an article.

Admittedly the plaintiff has the right to sell its cars where and to whom it may choose, and for such price as it may see fit. It may decline to deal with the trade at all, and, dispensing with middlemen, sell directly to users, by mail, or through traveling salesmen or local agents. Accordingly it may lawfully appoint an agent at Portland authorized to sell its cars, limiting his authority to sales within a prescribed territory, and to users, and for a fixed price; and it may impose as one of the conditions of sale that it will not pass title except to the ultimate viser and after such price has been paid in full. In short, the plaintiff may lawfully do precisely what it professes to be doing under the existing contract, and the question therefore is not whether its object is legitimate, but whether the means it employs are unlawful or are for some other reason ineffective. Even if it be held that the contract under consideration does not create an agency in the strict sense, but in effect provides for a sale, it is still clearly the understanding of the parties that it is a conditional or restricted sale, and that the title to the cars passes only upon a compliance with the other conditions, as well as that of paying the 85 per cent.

[3] The intent of the parties is clear enough, and the only question is whether effect can be given to such intent. It being a well-recognized principle of law that the vendor may retain title to the thing sold until the full stipulated consideration therefor shall have been paid (Bailey v. Baker Ice Mach. Co., 239 U. S. 268, 36 Sup. Ct. 50, 60 L. Ed. 275), it would seem that, if we are to hold the stipulation to that effect in this contract invalid, it must be because under the circumstances of the case such a transaction would be violative of some rule or principle of public policy. But, when the conditions are analyzed, what public interest would be subserved by striking down the contract and thwarting the intent of the parties thereto? As already suggested, it would be entirely possible for the plaintiff to accomplish all the objects which it seeks under the present plan, by marketing its product through its own agencies, so constituted that there could be no doubt that its salesmen were its agents merely, and not vendees, But, were it otherwise, what benefit would result to the public by open

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ing the door for the bushwhacking competition which, and which only, is likely to follow? It is to be borne in mind that the plaintiff has no monoply of the automobile business, but only of one out of almost innumerable kinds of cars, all differing in detail one from the other, but of the same general type and all designed to be used in the same general manner, and for the same general purpose. If, as was admitted to be the fact in the Motion Picture Patents Company Case, the plaintiff's car were wholly indispensable to the carrying on of a great industry, and if its plan of marketing were such as to constitute an instrument of oppression or favoritism, then the courts should perhaps be astute to discover means by which to disorganize its system and to encourage competitive effort as between the salesmen or distributors of its product; but such is not the case. Whatever its merits, the Ford car is not, except in the most remotely relative sense, essential to the well-being of the public or any group thereof, or any individual. There are other automobiles in great variety available to any one who has need and desires to purchase, some cheaper, some more expensive, some less efficient, some more efficient, some less attractive in appearance, others more attractive. Cole Motorcar Co. v. Hurst (C. C. A. 5th) 228 Fed. 280, 284, 142 C. C. A. 572. Obviously, therefore, the public already has competition to the fullest extent desirable, not a competition entailing the waste of duplication and overlapping effort in marketing the product, with sporadic price-cutting of an irrational sort, but the competition of many products, each independently seeking public favor, against one of like character, but slightly different. Is not each manufacturer now under the highest sort of pressure from without? Must it not be alert to discover new improvements and conveniences and to keep down to the minimum the cost of construction and distribution? It is a matter of public knowledge that fortunes are spent in advertising these competitive products, in an effort to attract and cultivate public favor. Under such conditions will the public be benefited by requiring the manufacturer to assume the further burden of internal guerrilla competition, with the confusion and waste entailed thereby? It is futile to say that such a burden will fall not upon the manufacturer or the public, but upon the local dealer or distributor. If there were ten dealers selling Ford cars in Portland, where there is now but one, would not the expense of marketing be greatly increased, and if, as is contended, the contract under consideration is harsh to the “dealer," does it not follow that, with the trade divided into ten parts, and with the expense of rentals and personal service multiplied, the price of the car to the public would increase? Does any one suppose that such dealers would for any considerable length of time cut the price? In the light of experience is it not so probable as virtually to amount to a certainty that the prices would soon reach a common level, and that level would be higher than the present one? Upon the other hand, will the public not have the benefit of the freest and most effective competition if each patentee manufacturer of automobiles is permitted to market his product in his own way? May it not be assumed that, impelled by considerations of self-interest, he will select the most economical meth

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od, and that the keen and vigorous competition of innumerable other manufacturers will force him to give to the public the major benefit arising from his economies ? At least, we do not think that we would be warranted in holding that the contract here is inherently vicious. If, in fact, it is prejudicial to the public interest because to an unreasonable degree it operates in restraint of trade and interferes with the free play of wholesome competition, the defendants may plead and show the facts.

When we come to consider the decided cases, we find that no decision cited by either party from the Supreme Court of the United States involves the precise question, and that court, it is to be noted, appreciating from an early day the growing complexity of our industrial life and the importance of curtailing the liberty of contract only in so far as positive law or considerations of public policy might from time to time clearly require, has been careful to limit its decisions strictly to the matters directly in issue. Adams v. Burks, 17 Wall. 453, 21 L. Ed. 700; Bauer v. O'Donnell, 229 U. S. 1, 33 Sup. Ct. 616, 57 L. Ed. 1041, 50 L. R. A. (N. S.) 1185, Ann. Cas. 1915A, 150. And in reading the cases these considerations should be kept in mind : There is no attempt here to bind the purchasing public by a mere notice attached to the machine, nor is there any claim that a patent is of such force that a violation of the warning or the provisions of a notice of that character constitutes an infringement. If involved at all, the rights of the public are only remotely affected. The issue is between the patentee manufacturer and the consignee, who have expressly contracted with each other. In the second place, as we have seen, the plaintiff is not in the exclusive control of a useful or desirable article of commerce, whether patented or copyrighted, for which there is no substantial substitute; that is, it is without the power to oppress the public by fixing grossly excessive prices or imposing onerous and unreasonable conditions upon the use of its product. It controls but one of many similar devices which may be purchased upon the open market. In the third place, the plaintiff makes no attempt to restrain trade in unpatented or uncopyrighted articles of commerce by requiring the use thereof upon or in connection with its cars.

That this first consideration has been deemed to be an important one not only appears to be held in other jurisdictions (see Trust Laws and Unfair Competition, issued by the government printing office in 1916, pp. 579, 580, 592, 593, 651, 652), but is abundantly shown by the decisions of the Supreme Court already referred to. In Adams v. Burks, 17 Wall. (84 U. S.) 453, 21 L. Ed. 700, it was held that, while the purchasers from a patentee had the right to manufacture, sell, and use the patented article only within the limits of a circle of ten miles around Boston, as stipulated in the contract, a purchaser from them of a single patented article acquired the right to use it anywhere. Note, too, the distinction made in Keeler v. Standard Folding Bed Co., 157 U. S. 659, 15 Sup. Ct. 738, 39 L. Ed. 848:

"Where the patentee," such is the language of the court, “has not parted, by assignment, with any of his original rights, but chooses himself to make and vend a patented article manufactured, it is obvious that a purchaser can use

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the article in any part of the United States, and, unless restrained by a con. tract with the patentee, can sell or dispose of the same." (Italics ours.)

And again, after reviewing a number of cases, the court says:

"Upon the doctrine of these cases we think it follows that one who buys patented articles of manufacture from one authorized to sell them becomes possessed of an absolute property in such articles, unrestricted in time or place. Whether a patentee may protect himself and his assignees by special contracts brought home to the purchasers is not a question before us, and upon which we express no opinion. It is, however, obvious that such a question would arise as a question of contract, and not as one under the inherent meaning and effect of the patent laws."


In Bobbs-Merrill Co. v. Straus, 210 U. S. 339, 350, 28 Sup. Ct. 722, 726 (52 L. Ed. 1086), it is said:

"In this case the stipulated facts show that the books sold by the appellant were sold at wholesale, and purchased by those who made no agreement as to the control of future sales of the book, and took upon themselves no obligation to enforce the notice printed in the book, undertaking to restrict retail sales to a price of one dollar per copy.

"The precise question therefore in this case is: Does the sole right to vend secure to the owner of the copyright the right, after a sale of the book to a purchaser, to restrict future sales of the book at retail, to the right to sell it at a certain price per copy, because of a notice in the book that a sale at a different price will be treated as an infringement, which notice has been brought home to one undertaking to sell for less than the named sum? We do not think the statute can be given such a construction, and it is to be remembered that this is purely a question of statutory construction. There is no claim in this case of contract limitation nor license agreement controlling the subsequent sales of the book."

In Bauer & Cie v. O'Donnell, 229 U. S. 1, 33 Sup. Ct. 616, 57 L. Ed. 1041, 50 L. R. A. (N. S.) 1185, Ann. Cas. 1915A, 150, confidently relied upon by the defendants, the issue was expressly defined by the court as follows:

"May a patentee by notice limit the price at which future retail sales of the patented article may be made, such article being in the hands of a retailer by purchase from the jobber, who has paid to the agent of the patentee the full price asked for the article sold."

And again: "The real question is whether in the exclusive right secured by statute to "vend' a patented article there is included the right, by notice, to dictate the price at which subsequent sales of the article may be made."

In United States v. Keystone Watch Co. (D. C.) decided by Judges Buffington, Hunt, and McPherson, 218 Fed. 502, 514, it was expressly held that:

"As the owner of these patents, the company had the right to make a direct agreement with the jobbers whereby a minimum price was fixed at which the jobbers might sell.”

In stating the issue in one of the two most recent decisions (the Motion Picture Patents Company Case, supra), Mr. Justice Clark, speaking for the court, said:

"It is obvious that in this case we have presented anew the inquiry, which is arising with increasing frequency in recent years, as to the extent to which a patentee or his assignee is authorized by our patent laws to prescribe by

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