55 Am. Rep. 474. See also supra, Sec. 1217, infra, Sec.Sec. 1771-1774.
In Man Nat. Bank v. Hughes, 256 Pa. 75,100 Atl. 542, the plaintiff bank sued upon a note made by the defendant who testified that the note was given merely to deceive the bank examiner, and that the parties agreed that it should not be enforced against the defendant. The court held that the note was enforceable according to its terms, and that the defendant could not be heard to say that a note which he had voluntarily given, according to his own account, for the purpose of enabling the bank to deceive the bank examiners of the United States was not what it purported to be. Any general inference from this language that a defendant cannot set up his own illegality, shared in by the plaintiff, either to a promissory note or any other contract would be incorrect.
28 See infra, Sec. 1789.
29 In Cleveland Ac. R. Co. v. Uirach, 204 Fed. 849, 123 C. C. A. 145, a.railroad company, although particeps criminis, was held entitled to maintain a suit for cancellation of a contract of lease for illegality, on the ground that the lease was executory and its enforcement contrary to public policy.
30 See, e. g., Kushner v. Abbott, 156 la. 598, 137 N. W. 913, and infra, Sec. 1702.
whether as to the character of the work or business, its place, the manner in which it shall be done, or the price which shall be demanded for it, may be called a contract in restraint of trade.32 It is immaterial that the amount of business which may be done under the restraint exceeds the amount which was done or would be done had there been no restraining promise. The term does not indicate that less work or trade will be done but merely that one who does it, or who might do it, has agreed to some restriction. Though strictly speaking any contract imposing any restriction whatever of the class alluded to is in restraint of trade, the term is often used as including only contracts where the restraint is obnoxious to the law. Prolonged litigation was necessary to determine whether the words "restraint of trade" as used in the Sherman Act were used in the strict literal sense including any restriction whatever, or in the sense, also common in legal speech, of restraints unreasonable, and therefore obnoxious to the common law.33 Restraint of trade may be sought by other means than by contract. By what is called unfair competition or by mere aggregation of capital competitors may be. put at a disadvantage and a monopoly or something approaching it obtained.84 Here, however, only the validity of contracts can be considered.