trade

[T]he word 'trade' is often, and indeed generally, used in a broader sense, as equivalent to occupation, employment, or business, whether manual or mercantile. Wherever any occupation, employment, or business is carried on for the purpose of profit, or gain, or a livelihood, not in the liberal arts or in the learned professions, it is constantly called a trade.

The original meaning of the word "trade" was "track" or "course," hence "trade-wind." In modern use it is employed in three different senses: (1) An occupation; a handicraft by which one earns a livelihood; mechanical employment in contradistinction to agriculture and the liberal arts. Ann. Cas. 1916A 1197; 86 Tex. 250; 22 L. B. A. 490; (2) Sale or exchange of merchandise or other property; a mercantile business, as opposed to the liberal arts or professions, 230 111. 236; and (3) a broader and more extended meaning synonymous with "commerce." 142 Ga. 267; Ann. Cas. 1916A 1197.

Any sort of dealings by way of sale or exchange; commerce, traffic. May v. Ings in a particular business: as, the Indian trade; the business of a particular mechanic; hence boys are said to be put apprentices to learn a trh.de: as, the trade of a carpenter, shoemaker, and the like. Bac. Abr. Master and Servant (D 1). Trade differs from art. In exemption laws it is usually confined to the occupation of a mechanic; Enscoe v. Dunn, 44 Conn. 93, 26 Am. Rep. 430; but in its broader sense it is generally construed as equivalent to any occupation, employment, handicraft, or business; May v. Sloan, 101 U. S. 231, 25 Ij. Ed. 797; In re Pinkney, 47 Kan. SO, 27 Pac. 179. One cannot by multiplying his pursuits claim cumulatively several exemptions, but the fact that he carries on two or more pursuits concurrently does not deprive him of all exemptions, but the article exempted must belong to his principal business; Jenkins v. Mc Nall, 27 Kan. 532, 41 Am. Rep. 422. The term is also construed in cases arising under the “anti-trust” act forbidding trusts and combinations in restraint of trade, and it is held in that connection to have the broader sense; In re Pinkney, 47 Kan. 89, 27 Pac. 179, where the definition of the word is much discussed. See Restraint of Trade. The word is held to apply to the business of insurance; id.; Betz v. Maier, 12 Tex. Civ. App. 219, 33 S. W. 710; of a telegraph company; 3 Exch. Div. 108; transportation of merchandise for hire; The Eliza, 2 Gall. 4, Fed. Cas. No. 4,346; 7 Cra. 113; a blacksmith, who also builds wagons; Stewart v. Wei toil, 32 Mich. 59; a harness-maker, painter, and carriage-builder; Eager v. Taylor, 9 Allen (Mass.) 156; a dealer in ice who was also a farmer; Pierce v. Gray, 7 Gray (Mass.) 67; a tinner who owned and partly supported himself by playing a cornet; Baker v. Willis, 323 Mass. 394, 25 Am. Rep. 61; a saddle and harness-maker; Nichols v. Porter, 7 Tex. Civ. App. 302, 26 S. W. 859; keeping a home for working girls even though it appeared that no profits were made; 25 Ch. Div. 206; but maintaining a private lunatic asylum is held not a trade; 2 Ad. & El. 161. Trade and commerce, as used in the Sherman anti-trust act, are synonymous. Their use in the first section thereof does not enlarge the statute beyond the meaning of the common law expression “contracts in restraint of trade,” as they are analogous to “monopolize,” which is the basis and limitation of the statute; U. S. v. Patterson, 55 Fed. 605. See Tools; Exemption; Restraint of Trade; Trader; Tradesman.

The act or business of exchanging cemfnodities by barter; or the business of buying and selling for money; traffic; barter. Webster; May v. Sloan, 101 U. S. 237, 25 In Ed. 797; In S. v. Cassidy (D. C.) 67 Fed. 841; Queen Ins. Co. v. State, 86 Tex. 250, 24 S. W. 397, 22 L. R. A. 483. The business which a person has learned and which he carries on for procuring subsistence, or for profit; occupation, particularly mechanical employment; distinguished from the liberal arts and learned professions, and from agriculture. Webster; Woodfield v. Colzey, 47 Ga. 124; Pcople v. Warden of City Prison, 144 N. Y. 529, 39 N. E. 686, 27 L. R. A. 718; In re Stone Cutters' Ass'n. 23 Pa. Co. Ct. R. 520. Traffic; commerce, exchange of goods for other goods, or for money. All wholesale trade, all buying in order to sell again by wholesale, may be reduced to three serts: The home trade, the foreign trade of consumption. and the carrying trade. 2 Smith, Wealth Nat b. 2, c. 5.

— Trade dollar. A silver coin of the United States, of the weight of four hundred and twenty grains, troy. Rev. St. U. S. § 3513 (U. S. Comp. St. 1901, p. 2345).

— Trade fixtures. See Fixtures.

— Trade usage. The usage or customs commonly observed by persons conversant in, or connected with, a particular trade.

Generally, equivalent to occupation, employment, or business, whether manual or mercantile; any occupation, employment, or business carried on for profit, gain, or livelihood, not in the liberal arts or in the learned professions.' The business or occupation which a person has learned and carries on for procuring subsistence, or for profit; particularly, a mechanical employment, distinguished from the liberal arts and learned professions, and from agriculture.* In its broadest signification, includes not only the business of exchanging commodities by barter, but the business of buying and selling for money, or commerce and traffic generally.* In the expression " implements of a debtor's trade " the reference is to the business of a mechanic, — carpenter, blaclismith, silvei-smith, printer, or the lilce,'* Trader; tradesman. Primarily, one who trades. But "tradesman" usually means a shopkeeper.'' Trader. One who buys and sells goods; " one who makes it his business to buy merchandise, or goods and chattels, and sell the same for a profit." 8 One who sells goods substantially in the form in which they are bought. Any general definition would fail to suit all cases; each case has its peculiarities.' In England, applied to small shopkeepers; in the United States, rarely to persons engaged in buying and selling, generally to mechanics and artificers of every kind, 1 Chapman v. Ferry, 18 P. R. 640 (1883), Deady, J. ' Edwards v. Derrickson. 28 N. J. L. 45 (1859). 8 [The Nymph, 1 Sumn. 518 (1834), Story, J. [Whitcomb v. Reid, 31 Miss. 669 (1856): Webster. May u Sloan, 101 U. S. 237 (1879), Bradley, J. " Atwood V. De Forest, 19 Conn, *517 (1849), Hinman, J.: 40 id. 109; 44 id. 99 (1870); 11 Mete. 79; 6 Gray, 898; 23 Iowa, 359. 'Be Eagsdale, 7 Biss. 155 (1876), Gresham, i. " [Be Smith, 2 Low. 70 (1871); 80 N. C. 479; 4 B. & A. 514. whose livelihood depends upon the labors of their hands.' Tradesman. Cannot be restricted to mean traders, in the large sense of our bankrupt laws. Most often synonymous with shopkeeper. 2 Was imported from the English bankrupt act, and refers to a smaller merchant or shopkeeper. 3 See Merchant; Peddler. An agreement in general restraint of trade is illegal and void. An agreement which operates merely in partial restraint is good, provided it be not unreasonable and there be a consideration to support it. In order that it may not be unreasonable, the restraint must not be larger than is required for the necessary protection of the party with whom the contract is made. The application of the rule is somewhat difficult. A contract not to exercise a trade in a particular State is generally held to be invalid, on the ground that it would compelman to transfer his residence and allegiance to another State in order to pursue his vocation. The cases are to be judged according to their circumstances. The grounds of the rule are, further: the injury to the public by being deprived of the restricted party's industry; and the injury to the party himself by being prevented from supporting himself and his family. Both these evils occur when the contract is general — not to pursue the trade at all, or in the entire country. But if neither evil ensues, and the contract is founded on a valuable consideration and a reasonable ground of benefit to the other party, it is free from objection. A stipulation by a vendee of any trade, business, or establishment, that the vendor shall not exercise the same trade or business, or erect a similar establishment within a reasonable distance, so as not to interfere with the value of the trade, business, or thing purchased, is reasonable and valid. So also is a stipulation by a vendor of an article to be used in a business in which he is himself engaged, that it shall not be used within a reasonable region or distance, so as not to interfere wfth his business. The point of difficulty is to determine what is a reasonable distance. This must depend upon the circumstances of the particular case. If the distance be such that the business cannot possibly be affected, the stipulation is unreasonable.* It was one of the most ancient rules of the common law that all contracts in restraint of trade were void. This was settled law in England as earl.y as 1415, and its courts would not then tolerate the least infraction of the rule. It was enforced with severity, and doubtless grew out of the law of apprenticeship, under which no one could earn a livelihood at any trade until after long service, and then he must continue in the > Richie V. Mc Cauley, 4 Pa. 472 (1840), Bell, J. 'Be Cots, 2 Low. 376-77 (1874), Lowell, J.; Be Smith, ib. 70 (1871); 9 Boned. 66, 309, 811. n Be Stickney, 5 Dill. 91 (1878), Dillon, Cir. J.; R, S. § 5110. one adopted or have none. For two hundred years the rule existed, without exception, that all contracts in restraint of trade were void. It was qualified, however, as the law of apprenticeship broadened; and a distinction was then drawn by the cases of Broad v. Jollyfe, 3 Cro. Jac. 696 (1623), and Mitchel v. Reynolds, 1 P. Wms. 181 (1711), between a general and a limited restraint of trade. Other decisions followed, until it became the settled English rule that while a contract not to do business anywhere is void, one stipulating not to do so in a particular place, or within certain limits, is valid. This has ahyays been the rule in this countiy, and the wisdom, of it cannot be doubted. It is eminently suited to the genius of our institutions. It prevents building up monopolies and the creation of exclusive privileges. Contracts in general restraint of trade produce them; they tend to destroy industry and competition, thus enhe.ncing prices and diminishing the products of skill and energy; they impair the means of livelihood and injure the public, by depriving it of the services of men in useful employments. This reasoning, however, does not apply to such contracts as impose a special restraint; as, not to cari'y on trade at a particular place, or with certain persons, or for a limited reasonable time. Indeed, a particular trade may be promoted by being limited for a short period to few persons, and the public benefited by preventing too many from engaging in the same calling at the same place. If, therefox'e, the limitation be a reasonable one, it will be upheld.' A contract not to engage in a business, directly or indirectly, for five years, may not extend to isolated acts, or to occasional services voluntarily rendered in good faith for the accommodation of another; nor will it include a subordinate employment not affecting the management of the business nor directly influencing custom.'' A covenant to retire from business " so far as the law allows " was held to be too vague to be enforced. See Aht, 3; Business: Combination, 2; Condition; Distress; Manufacture; Monopoly; Tools. See especially Trust, 2. Trade-dollar. See Coin. Sutton 11. Head, 85 Ky. — (1838), cases. The grantee under a deed containing a condition that intoxicating liquors should not be retailed on the premises claimedi tht the contract was in restraint of trade, and void. 2 Nelson v. Johnson, 38 Minn. — (1888), cases. 3 Davies v. Davies, S8 Law T. R. 209 (1887). See generally Oregon Steam Nav. Co, v. Hale, 1 Wash. T. 284 (1870), cases; Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. 184-86 (1871), cases; Smith's Appeal, 113 id. 690 (1886); Albright v. Teas, 37 N. J. E. 171 (1883); Mandeville v. Harman, 42 id. 186 (1886), cases; Diamond Match Co. v. Roeber, 106 N. Y. 473 (1887), cases; Sharp v. Whiteside, 19 F. R. 166, 164 (1888); Rousillon V. Rousillon, 37 Eng. R. 39, 49-63 (1880), cases; 26 Alb. Law J. 284 (1882), cases; 36 id. 166, 282 (1887), cases; 19 Cent. Law J. 202-8 (1884), cases; 26 id. 695-99 (1888), cases; 34 Am. Law Reg. 217-30, 281-98 (1886), Trade-flxture. See Fixture. Trade-talk. See Commendatio, Simplex.

In its most extensive signification this word includes all sorts of dealings by way of sale or exchange. Ina more limited sense it signifies the dealings in a particular business, as the India trade; by trade is also understood the business ef a particular mechanic, hence boys are said to be put apprentices to learn a trade, as the trade of a carnter, shoemaker, and the like. rade differs from art, (q. v.) It is the policy of the law to encourage trade, and therefore all contracts which restrain the exercise of man’s talents in trade are detrimental to the commonwealth, and therefore void; though he may bind himself not to exercise a trade in a particuler place, for, in this last case, as he may pursue it in another place, the commonwealth has the benefit of it. 8 Mass. 223; 9 Mass. 522. Vide Com. Dig. h. t.; Vin. Ab. h. t.