The Bourbon news. [volume] (Paris, Ky.) 1895-19??, 1914-03-03
(149 KY, 403) wrote the opinion in
the Brent-Gay case


uIes. 1t says: Nor do we find It nee
essary in disposing of the case to con-
slider at all the antitrust statutes of
The State. Leaving out of view en-
tirely the applicability of the antitrust
statutes, we think the controlling and
decisive question in the case is "did
the averments of the answer, which
must be treated as true, state the de-
tense of the unlawful and unreasona-
BILE restraint of trade upon which
Brent was entitled to Introduce evil
dence and have a decision on the
merits" Again in the same case,
quoting from the Opinion in Mer-
chants Ice & Cold Storage Company
case, the Court says: eff a contract is
made that suppresses competition, and
controls the market, and that contract
is entered into between those who have
Heretofore engaged in competition in
the market sought to be controlled, it
is a contract in restraint of trade.
1t may be more. 1t may amount
to trust, or conspiracy, or
monopoly, but it is nevertheless a
contract in restraint of trade. To re-
strain trade is the essential feature
of the contract-the reason why it
was made. If trade that is in COM
petition, could not be restrained, the
promoters would not go into the
scheme and when such a contract
is made, whatever form it may as
sumo, or by whatever name it may be
called, and although it may be reach
ed under the law of monopolies, trusts
and conspiracies, it will be declared
in a h rn-
straint of trade The Court again
Gay and his associates says "Nor do
we think that in ruling that the
scheme of Gay and Company was an
agreement in restraint Of trade, we
have unduly extended the scope of
the principle upon which the doctrine
rests. 1t is true that by the common
law contracts treated as being in re-
straint of trade were limited to con-
tracts having for their purpose the
purchase of some trade or business, as
part of which the seller agreed not
to engage in the trade or business he
had disposed of. But in dealing with
conditions brought about by modern
/ business methods, it has been found
necessary for the public's good to
extend the common law prohibition
against contracts in restraint of trade
to states of cases involving more than
the mere purchasing and selling of a
trade or business, so as to give the
Courts, for the good of the public, au-
thority to prevent as much as posi-
BILE combinations and arrangements
having for their purpose the creation
of monopoly, the control of prices,
and the suppression of competition"
Proceeding the Court says: Looking
now to the case we have, we find that
under the admitted averments of the
answer Gay and his associates con-
ceived the plan of controlling the blue
grass seed of the country, and of fix
ing and regulating the price of the
useful article, and, in pursuance of
this plan, which had as one of its chief
purposes the restraint of trade and
the suppression of competition in
this article by competitors, they
sought to secretly secure from Brent
and other dealers in blue grass seed
a sufficient quantity of the seed to en-
able them to effectually carry out
their scheme to restrain and monop
olize." The Opinion concluded with
this significant statement: "Undel
the admitted facts on the record, tt
enforce his contract would be to de
part from the principles that have
been expressly recognized by this
Court in the Rohrman case, as well as
in Arctic Ice Co. VS.. Franklin Elec
trio & Ice Co., 145 KY, 50; Glenn
mons VS.. Meadows, 1872 KY, 179; An
derson VS.. Jett, 80 KY, 375, and Other
cases"
While the Court of Appeals was re
quired only to pass upon the Suffici
ency of the answer and amended an
swer, yet, a consideration of the evi
dence shows that TIE only allegation
in the answer that was not sustained
is that the purpose of the plaintiff:
was to enhance the price of blue gras!
seed above it's real value, and TIT
, Court of Appeals, in effect, held tina
to be immeterial. The Opinion il
the Brent-Gay case quotes copiousl.
from the opinion in the Rohrmal
case, which was also written b.
{ Judge Carroll. While the opinion il
this latter case discusses vigorously
and thoroughly the question of con
, tracts in restraint of trade, it will no
r be necessary for the purpose of thi
| case to do more than make one quo
: tation from it to answer the sugges
ton that the purpose of Gay and hi
: associates was a laudable one, bein
: to establish a stable market for blu
f grass seed, and that therefore sue
/ an arrangement should not be COZ
|, demned by law. Answering a simila
/ suggestion, the Court, in the Rohrma
f case, said: "The argument is furthe
Y made that the contract should be III
S held because the purpose of the pu
l. chaser was only to economic in tn
e cost of producing and selling ice, an
J. prevent competition that was destru
J. tive to the conduct of the bushes
l, and not to fix regulate, or raise th
t. price of the article. And it is tru
a there is no evidence that any attemI
II was made to raise the price of ic
s But the mere fact that no effort we
l. made to control or fix or raise tt
f. price has little to do with the que
y ton. 1t is the purpose to control tt
If market and suppress competition thi
Is constitutes the essential vice in tt
d contract"