ons, from the notion of free competition to that of "fair"
competition, so as to permit contracts involving moderate restraint of
trade, if the essential element of competition was retained. Thus
it was said that a piano manufacturer might by contract grant an
exclusive agency to a dealer in a certain territory, there being many
other competing makes of pianos, and such a contract "does not operate
to suppress competition nor to regulate the production or sale of any
commodity."[4] But with such moderate limitations the courts in cases
under the common law have steadily disapproved contracts in restraint
of trade that would appear to be to the disadvantage of third parties,
whether producers or consumers.

Sec. 5. #Growing disapproval of combination.# The attitude of the courts
became in one respect stricter. Some earlier cases involved the
doctrine that what is lawful for an individual to do alone is lawful
if done in combination with others. Indeed, a comparatively recent
case[5] declared regarding a group of dealers, agreeing not to deal
with another, that "desire to free themselves from competition was a
sufficient excuse" for such action. But the general trend has been
to the doctrine that a combination of men "has hurtful powers
and influences not possessed by the individual." Hence threats of
associations of traders (retailers or wholesalers) not to deal with
another if he continued to deal with some third party have been
declared acts in restraint of trade.[6] Yet in the case cited the
court seemed to have been more concerned with protecting "the
individual against encroachment upon his rights by a greater power,"
"one of the most sacred duties of the courts," than with rights and
interests of the general public, endangered by such restraint of
trade.

Sec. 6. #Competition sometimes favored regardless of results.# In another
respect the courts have wavered in their attitude toward competition,
the general doctrine being that competition, particularly the cutting
of prices, is absolutely justifiable, regardless of circumstances. In
the leading English case[7] the facts were that the larger steamship
companies sent to Hankow additional ships, now called, figuratively,
"fighting ships," to "smash" freights in order to ruin tramp steamship
owners and drive them out of the field. The court held that this
constituted no legal wrong to the tramp steamship owners, and scouted
the idea of the court's looking at the mot