Terminal R. Asso. 224 U. S. 383, 56 L. ed. 810, 32 Sup. Ct. Rep. 507; United Shoe Machinery Co. v. Brunet [1909] A. C, 330, 78 L. J. P. C. N. S. 101, 100 L. T. N. S. 578, 25 Times L. R. 442, 53 Sol. Jo. 396; Cooke, Combinations, § 116; United Shoe Machinery Co. v. La Chapelle, 212 Mass. 467, 99 N. E, 289, Ann. Cas. 1913D, 715; Standard Oil Co. v. United States, 221 U. S. 1, 55 L. ed. 619, 34 L.R.A. (N.S.) 834, 731 Sup. Ct. Rep. 502, Ann. Cas. 1912D, 734; Sperry & H. Co. v. O'Neill-Adams Co. 107 C. C. A. 337, 185 Fed. 231; Hoben v. Dempsey, 217 Mass. 166, L.R.A. 1915A, 1217, 104 N. E. 717; Pickett v. Walsh, 192 Mass. 572, 6 L.R.A.(~ .S.) 1067, 116 Am. St. Rep. 272, 78 N. E. 753, 7 Ann. Cas. 638; Allen v. Flood [1898] A. C. 1, 62 J. P. 595, 67 L. J. Q. B. N. S. 119, 77 L. T. N. S. 717, 14 Times L. R. 125, 46 Week. Rep. 258; Continental Wall Paper Co. v. Louis Voight & Sons Co. 212 U. S. 227, 261, 53 L. ed. 486, 505, 29 Sup. Ct. Rep. 280; Aikens v. Wisconsin, 195 U. S. 134, 206, 49 L. ed. 154, 160, 25 Sup. Ct. Rep. 3; Com. v. Hunt, 4 Met. 111, 38 Am. Dec. 346; Snow v. Wheeler, 113 Mass. 179; Carew v. Rutherford, 106 Mass. 1, 8 Am. Rep. 287; Aberthaw Constr. Co. v. Cameron, 194 Mass. 208, 120 Am. St. Rep. 542, 80 N. E. 478.

4 Ch. 654, 38 L. J. Ch. N. S. 665, 21 L. T. N. S. 188; Metropolitan Electric Supply Co. v. Ginder [1901] 2 Ch. 799, 70 L. J. Ch. N. S. 862, 65 J. P. 519, 49 Week. Rep. 508, 84 L. T. N. S. 818, 17 Times L. R. 435; Ferris v. American Brewing Co. 155 Ind. 539, 52 L.R.A. 305, 58 N. E. 701; Westervelt v. National Paper & Supply Co. 154 Ind. 673, 57 N. E. 552; Southern Fire Brick & Clay Co. v. Garden City Sand Co. 223 Ill. 616, 9 L.R.A. (N.S.) 446, 79 N. E. 313, Ann. Cas. 50; Brown v. Rounsa vell, 78 Ill. 589; Western U. Teleg. Co. v. Rogers, 42 N. J. Eq. 311, 11 Atl. 13; Salomon v. Hertz, 40 N. J. Eq. 400, 2 Atl. 379; Standard Fashion Co. v. Siegel Cooper Co. 157 N. Y. 66, 43 L.R.A. 854, 68 Am. St. Rep. 749, 51 N. E. 408; Matthews v. Associated Press, 136 N. Y. 333, 32 Am. St. Rep. 741, 32 N. E. 981; Clark v. Crosby, 37 Vt. 188; Twomey v. People's Ice Co. 66 Cal. 233, 5 Pac. 158; Sutton v. Head, 86 Ky. 156, 9 Am. St. Rep. 274, 5 S. W. 410; Heaton Peninsular Button-Fastener Co. v. Dick, 55 Fed. 23; James T. Hair Co. v. Huckins, 5 C. C. A. 522, 12 U. S. App. 359, 56 Fed. 366; Chicago, St. L. & N. O. R. Co. v. Pullman Southern Car Co. 139 U. S. 79, 35 L. ed. 97, 11 Sup. Ct. Rep. 490; John Bros. Abergarw Brewery Co. v. Holmes [1900] 1 Ch. 188, 69 L. J. Ch. N. S. 148, 64 J. P. 152, 48 Week. Rep. 236, 81 L. T. N. S. 771; Com. v. Sisson, 178 Mass. 578, 60 N. E. 385; O'Keeffe v. Somerville, 190 Mass. 110, 112 Am. St. Rep. 316, 76 N. E. 457, 5 Ann. Cas. 684; Gagnon v. Sperry & H. Co. 206 Mass. 547, 92 N. E. 761; Opinion of Justices, 208 Mass. 607, 94 N. E. 848.

This contract of the Merchants' Legal Stamp Company is not a violation of any Massachusetts statute.

Com. v. Strauss, 188 Mass. 229, 74 N. E. 308, 191 Mass. 545, 11 L.R.A. (N.S.) 968, 78 N. E. 136, 6 Ann. Cas. 842; Butterick Pub. Co. v. Fisher, 203 Mass. 122, 133 Am. St. Rep. 283, 89 N. E. 189; John D. Park & Sons v. Hartman, 12 L.R.A. (N.S.) 135, 82 C. C. A. 158, 153 Fed. 24; Com. v. Sisson, 178 Mass. 578, 60 N. E. 385; O'Keeffe v. Somerville, 190 Mass. 110, 112 Am. St. Rep. 316, 76 N. E. 457, 5 Ann. Cas. 684; Somerby v. Buntin, 118 Mass. 279, 19 Am. Rep. 459; Opinion of Justices, 196 Mass. 603, 85 N. E. 545; Little v. Tanner,

208 Fed. 605,

The Merchants' Legal Stamp Company by its contracts with the merchants has not created a monopoly in violation of the common law.

National Cotton Oil Co. v. Texas, 197 U. S. 115, 129, 49 L. ed. 689, 694, 25 Sup. Ct. Rep. 379; United States v. American Tobacco Co. 221 U. S. 106, 55 L. ed. 663, 31 Sup. Ct. Kep. 632; United States v.

Mr. Walter B. Grant for defendant Mur

phy.

Messrs. W. M. Richardson and John R. Lazenby, for defendant Stamp Company: The petitioner's contract is illegal as being a contract in restraint of trade.

United Shoe Machinery Co. v. La Chapelle, 212 Mass. 467, 99 N. E. 289, Ann. Cas. 1913D, 715; New York Bank Note Co. v. Kidder Press Mfg. Co. 192 Mass. 391, 78 N. E. 463; Anchor Electric Co. v. Hawkes, 171 Mass. 101, 41 L.R.A. 189, 68 Am. St. Rep. 403, 50 N. E. 509; Gamewell Fire Alarm Teleg. Co. v. Crane, 160 Mass. 50, 22 L.R.A. 673, 39 Am. St. Rep. 458, 35 N. E. 98; Plant v. Woods, 176 Mass. 492, 51 L.R.A. 339, 79 Am. St. Rep. 330, 57 N. E. 1011: Berry v. Donovan, 188 Mass. 353, 5 L.R.A. (N.S.) 899, 108 Am. St. Rep. 499, 74 N. E. 603, 3 Ann. Cas. 738; Reynolds v. Davis, 198 Mass. 294, 17 L.R.A. (N.S.) 162, 84 N. E. 457; Folsom v. Lewis, 208 Mass. 336, 35 L.R.A. (N.S.) 787, 94 N. E. 316; Hanson v. Innis, 211 Mass. 301, 97 N. E. 756; Pickett v. Walsh, 192 Mass. 572, 6 L.R.A. (N.S.) 1067, 116 Am. St. Rep. 272, 78 N. E. 753, 7 Ann. Cas. 638; Burnham v. Dowd, 217 Mass. 351, 51 L.R.A. (N.S.) 778, 104 N. E. 841; Cummings v. Union Blue Stone Co. 164 N. Y. 401, 52 L.R.A. 262, 79 Am. St. Rep. 655, 58 N. E. 525; People v. Sheldon, 139 N. Y. 251, 23

Even if the contract is not void, either at common law or under the statutes, the petitioner nevertheless is not entitled to the relief asked for, which is based upon the dealings of the respondents with the collectors of stamps.

Waltham Watch Co. v. Keene, 202 Fed. 225; Dr. Miles Medical Co. v. John D. Park & Sons Co. 220 U. S. 373, 405, 55 L. ed. 502, 517, 31 Sup. Ct. Rep. 376; Bobbs-Merrill Co. v. Straus, 210 U. S. 339, 52 L. ed. 1086, 28 Sup. Ct. Rep. 722, 139 Fed. 155; Taddy v. Sterious [1904] 1 Ch. 354, 3 B. R. C. 286, 73 L. J. Ch. N. S. 191, 52 Week. Rep. 152, 89 L. T. N. S. 628, 20 Times L. R. 102; McGruther v. Pitcher [1904] 2 Ch. 306, 3 B. R. C. 292, 73 L. J. Ch. N. S. 653, 20 Times L. R. 652, 53 Week. Rep. 138, 91 L. T. N. S. 678: Com. v. Emerson, 165 Mass. 147, 42 N. E. 559; Com. v. Sisson, 178 Mass. 578, 60 N. E. 385; O'Keeffe v. Somerville, 190 Mass. 110, 112 Am. St. Rep. 316, 76 N. E. 457, 5 Ann. Cas. 684; Garst v. Hall & L. Co. 179 Mass. 588, 55 L.R.A. 631, 61 N. E. 219; John D. Park & Sons Co. v. Hartman, 12 L.R.A. (N.S.) 135, 82 C. C. A. 158, 153 Fed. 24.

stamps with an agreement by the authorized merchant or customer not to part with them except in the specified course of trade, and to return the book with the stamps attached, which may have been presented to him by purchasers. If this is not done all rights under the contract cease or are forfeited. We said in O'Keeffe v. Somerville, 190 Mass. 110, 112 Am. St. Rep. 316, 76 N. E. 457, 5 Ann. Cas. 684, that trading stamps not being a commodity within the meaning of our Constitution, they were not subject to an excise tax, although no attempt was made to classify them. Nor is it necessary now to determine whether the contract is strictly a bailment (Hunt v. Wyman, 100 Mass. 198; Springfield Engine Stop Co. v. Sharp, 184 Mass, 266, 68 N. E. 224; Isaacs v. MacDonald, 214 Mass. 487, 102 N. E. 81), or whether the stamps are choses in action, (Sperry & H. Co. v. Hertzberg, 69 N. J. Eq. 264, 60 Atl. 368). The transaction is to be determined from its inherent character or purpose. If not goods, wares, or merchandise as those terms ordinarily are used, or the title did not vest in the purchaser, but he had only a limited use, they do represent and were intended to represent a mode of doing business which under mod

Braley, J., delivered the opinion of the ern mercantile conditions is in itself a court:

business potentially affecting and largely controlling certain well recognized lines of trade. The books and stamps, when viewed in the light of their manufacture and use by the plaintiff, coupled with its contract treating them not as symbols, but as chattels of value, which are the subject of sale or of bailment, are to be deemed articles within the meaning of the Statute of 1908, chap. 454, § 1. It is expressly found that the plaintiff declines to supply stamps to merchants unless they stipulate not to use trading stamps issued by other companies or individuals, and that the insertion of this provision in the contract is to suppress all competition. The direct tendency of the plaintiff's system of business under all the findings results in such concentration as to substantially control prices for a form of service, or of supposed profits to purchasers, demanded by the public. Com. v. Strauss, 188 Mass. 229, 231, 74 N. E. 308. The scheme the plaintiff has so carefully elaborated and built up is in reality a devise whose predominant purpose, as shown by its practical and successful operation, tends to drive all competitors from the field. New York Bank Note Co. v. Kidder Press Mfg. Co. 192 Mass. 391, 403, 78 N. E. 463; United Shoe Machinery Co. v. La Chapelle, 212 Mass. 467, 480, 99 N. E. 289, Ann

The principal, if not the sole, business of the plaintiff is the issuing of trading stamps to merchants at a fixed price, who give them to their customers for cash purchases usually on the basis of one stamp for every 10 cents of the price of the article bought, and after a number of stamps have been thus collected the merchant or collector presents them to the plaintiff for redemption at a fixed rate. By this arrangement the stamp or coupon operates as a discount in cash for every purchase made. Com. v. Sisson, 178 Mass. 578, 60 N. E. 385. The books containing the contract are described by the master as ruled off into spaces similar to stamp albums, into which the collectors, who are also the purchasers, paste the stamps, and the plaintiff redeems them at a lower price; the difference measures the company's profits. It is plain that the plaintiff is a trading stamp company, giving premiums or a valuable consideration for stamps furnished to purchasers of goods as an inducement for payment in cash. The master's report shows that under the operation of this system the plaintiff controls nearly 90 per cent of the actual business conducted in this form by the merchants of Boston and vicinity. By the provisions of the contract designed for this territory, Cas. 1913D, 715. The monopoly it seeks the company retains title to the book and

to establish may not be complete, but it has

dition alleged to be due to negligent injuries, but which might have resulted from another cause, plaintiff has the burden of showing that it is more probable that the condition was due to the negligent act than to the other alleged cause.

Damages loss of consortium.

SEITNER DRY GOODS COMPANY, Appt. to earn for and save to him in and about

sustained by him, including the value of | she sustained, and connected with the last, such services and consortium." her previous physical condition. These issues, and others concerning the result to plaintiff, were submitted to a jury, and a verdict for $1,550.40 was returned. Judgment was entered on the verdict, and a new trial was refused.

Over objection that it did not tend to establish a basis for estimating plaintiff's damages, the plaintiff's wife was permitted to testify as follows:

Q. Prior to your injury what was your relation with your husband with reference to the relation between a wife and husband on occasions?

A. I was perfectly well on that occasion.

Testimony introduced on the part of plaintiff tended to prove that upon an occasion in April, 1912, when his wife, accompanied by two daughters, was shopping in defendant's store, they undertook to use the elevator, in stepping into which, at the invitation of an employee, she fell because the floor of the elevator was below the level of the floor of the store, a condition of things which on account of semidarkness in the elevator and the invitation aforesaid she did not discover. Issues of fact were raised by the testimony about the negligence of defendant, the negligence of the wife, the nature and effects of the injuries | S. W. 280, the court said: "The husband's | It is certain that the husband is entitled to right of consortium at common law included the right of the services of the wife to be rendered to the husband, together with the right of her society and the comfort incident to the association and her companionship. Such are the rights which, it is asserted here, defendant has invaded and of which plaintiff has been deprived by his wrongful act. See Stout v. Kansas City Terminal R. Co. 172 Mo. App. 113, 157 S. W. 1019; Marri v. Stamford Street R. Co. 84 Conn. 9, 33 L.R.A. (N.S.) 1042, 78 Atl. 582, Ann. Cas. 1912B, 1120. In such cases it would be difficult, indeed, to ascertain in dollars and cents the value of the consortium of either spouse to the other. The relation and the right are rather of a sacred character than of a valuable monetary interest or right. In this view, our supreme court has determined that it is not essential to introduce evidence tending to prove the value of the society and companionship of the wife. Obviously the principle supporting this view goes to the effect that the law never requires pecuniary proof with reference to a nonpecuniary loss. Such is the thought of an eminent author on the subject. See Watson on Damages, p. 403. Therefore, in a suit by the husband for the loss of the wife's companionship and society as a result of personal injuries sustained by her through the negligence of another, there need be no direct proof of the value of such society, comfort, and companionship. The very nature of the subject does not admit of such proof. This being true, the assessment of reasonable compensation therefor must, it is said, necessarily be committed to the sound discretion and judgment of the triers of the fact. See Furnish v. Missouri P. R. Co. 102 Mo. 669, 22 Am. St. Rep. 800, 15 S. W. 315: Watson, Damages, pp. 403, 404 4 Sutherland, Damages, 3d ed. § 1252. As the right to the society, comfort, and companionship of the wife is but parcel of the common-law right of consortium, it would seem the same rule should apply to the loss of her services as well: for, indeed, after all, the right to the society and companionship is included within that of the husband to the wife's unimpaired services.

recover for the loss of the services of his wife of which he is deprived by the negligent act of another, even though the parties are in such circumstances that she is not accustomed or desired to do physical labor, or the husband may not have realized anything from her services before she was injured. See 4 Sutherland, Damages, 3d ed. § 1252. Therefore, the courts declare, in the cases of the character of this one, that there need be no direct or express evidence of the value of the wife's services either by the day, week, month, or of any other period of time, or of any aggregate sum touching the matter, for it is sufficient to show her disability from performing service if it were desired, or she chose to do so. It is said when the loss of a wife's services resulting from a personal injury is to be compensated for to her husband, she is not to be treated as an ordinary servant or as a mere hireling. On the contrary, she is to be regarded as sustaining to her husband and his household a relation special and peculiar in itself, for the deprivation of which, even for a short time, compensation for services may not be accurately ascertained and given in evidence in dollars and cents. Therefore the actual facts and circumstances of each case, together with the experience and judgment of the jurors, are to furnish the guide in determining the amount of the recovery, and this, too, without evidence of value."

And in Indianapolis & M. Rapid Transit Co. v. Reeder, 51 Ind. App. 533, 100 N. E. 101, it was said: "Under the law the pecuniary value of the 'wifely services or consortium' of decedent during the period intervening between her injury and her death was a part of the damages to be ascertained and assessed. See [opinion on former appeal], 42 Ind. App. 520, 85 N. E. 1042, and cases there cited. These services may, and often do, include such services as might be rendered by hired servants, which have a fixed or market value; but they also include such services as a wife alone can render the husband, viz., such as she may extend to him by way of her society and counsel, her pervading superintendence and care over his household, her nurture, guid

A. I would not think that would be pos- than it was before, if she is there with you sible.