So harmless did contracts in restraint of trade appear to the English courts in the nineteenth century, except for the oppression of the promisor, that if an agreement, invalid because imposing an unreasonable restraint of trade was actually performed by the party subjected to the restraint, he might recover any payment promised him in return for the restraint.59 But this view is not now accepted in England,60 and would not be followed in the United States.61

56 In re Greene, 52 Fed. 104; Gotts-chalk v. Distilling, etc., Co., 62 Fed. 901; Clark v. Frank, 17 Mo. App. 602; Walsh v. Dwight, 40 N. Y. App. D. 513, 58 N. Y. S. 91.

57 This was held not indictable under the Sherman Act in the absence of an intent to create a monopoly. United States v. Colgate, 250 U. S..300, 39

S. Ct. Rep. 465. See 19 Columbia L. Rev. 149.

58 Boston Store v. American Grapho-phone Co., 246 U. S. 8, 38 S. Ct. Rep. 257, 62 L. Ed. Ann. Cas. 1918 C. 447.

59 Bishop v. Kitchin, 38 L. J. Q. B. 20.

60 Evans v. Heathcote, [1918] 1 K. B. 418.

61 Oliver v. Gilmore, 52 Fed. 562;