I agree with the opinion of Judge GRAY.
The agreement attacked has for its sole object the protection of copyrighted books. I consider the construction given to it by Judge GRAY is logical, conducive to the best interests of trade and consistent with the latest utterance of this court on the subject. (Park Sons Co. v. National Druggists' Association,175 N.Y. 1.)
It cannot be reasonably said that a publisher of books protected by copyright, and a dealer in books generally, may not say to his customers in the trade, that if they cut the prices of his copyrighted books he will sever business relations absolutely.
If this be so, and I do not understand it can be successfully questioned, why may not any number of men similarly situated agree to adopt that policy?
There is a phase of this case that has not been specially discussed, but which may be considered by way of argument. The refusal to maintain trade relations with a given individual is an inherent right which every person in business may exercise, for reasons he deems sufficient or for no reason whatever. It is a part of that liberty of action which the Constitutions, State and Federal, guarantee to the citizen.
This case discloses one of the saddest phases of our modern business life.
It is a well-known fact that the great department stores of *Page 493 the country have encroached upon many lines of trade entirely distinct from the main and legitimate business in which they are engaged. As an illustration, a dry goods establishment, engaged in selling a vast number of articles legitimately related to its business, concludes, in order to promote its principal trade, to offer for sale books, furniture, druggists' sundries and numerous other articles that need not be mentioned, at cut prices, representing only the cost of production, and oftentimes far below it. The inevitable effect of this policy is to draw a large number of people to these establishments, and in the final result the dealer makes good his losses in the outside trade by the prices he obtains in his legitimate business.
It may be fairly assumed that the general business is conducted at a profit.
The result is a large number of the retail dealers in the various kinds of articles thus undersold are driven out of business, many of them at a time of life when they are unable to reinstate themselves in some other calling.
It also results in great damage to manufacturers, producers and wholesale dealers in loss of customers who have been driven into insolvency.
It is, of course, true that the proprietors of department stores have the legal right to offer to the public goods of any kind at prices below production, or, indeed, may donate them to their customers. It is, however, equally true that the manufacturers, producers and wholesale dealers may say to the men whose policy is thus carrying ruin and destruction to their business and that of their customers, that if you persist in this disastrous cutting of rates we will sever all business relations absolutely. These are mutual and inherent rights, in the nature of things, so long as self-defense and the privilege to exist survive among men.
HAIGHT, MARTIN, VANN and WERNER, JJ., concur with PARKER, Ch. J.; GRAY and BARTLETT, JJ., read dissenting opinions.
Order affirmed. *Page 494