29

ities.

a different footing, and the principle of the author

eferred to.

It is well settled principle, that words, not actionable in themselves as defamatory, will nevertheless subject the party to an action for any special damages that may occur to another thereby. Bac. Ab. Slander, C. The same is true of words spoken in relation to property, or the title thereto, whereby the party is defeated of a sale, or suffers damage in any way. Bac. Ab. Action on the Case, I. Com. Dig. Action on the Case, C. So also, if, by a wrongful claim of title or lien, the owner is prevented from perfecting a sale, or a purchaser from obtaining delivery to himself of goods, an action will lie. Green v. Button, 2 Cr., M. & R. 707.

In all these cases, the damage for which the recovery is had is not the loss of the value of actual contracts by reason of their non-fulfilment, but the loss of advantages, either of property or of personal benefit, which, but for such interference, the plaintiff would have been able to attain or enjoy. Indeed, it has been held that loss by breach of contract, or the wrongful conduct of another than the defendant, would not be recoverable as damages under a per quod. Vicars v. Wilcocks, 8 East, 1. Morris v. Langdale, 2 B. & P. 284. Bac. Ab. Slander, C.

This doctrine has been doubted, especially in Lumley v. Gye, 2 El. & Bl. 216, 239, where the case of Newman v. Zachary, Aleyn, 3, is cited to the contrary. That was an action on the case, maintained for wrongfully representing to the bailiff of a manor that a sheep was an estray, in consequence of which it was wrongfully seized; the reason for the decision being, "because the defendant, by his false practice, hath created a trouble, disgrace and damage to the plaintiff." But the distinction is unimportant in a case like the present, where the damage to the plaintiffs is alleged to have been the direct result of the wrong

ful conduct of the defendant, and so intended by him; except that it is significant of the point that the existence and defeat of rights by contract are not essential to the maintenance of an action for malicious wrong, when the defendant has no pretext of justifiable cause.

The case of Green v. Button, 2 Cr., M. & R. 707, is especially in point in this connection. The defendant, by means of a false claim of a lien, and of words discrediting the plaintiff, induced one who had sold goods to the plaintiff to refuse to deliver them, whereby he was injured in his business. The court, alluding to the doubts that had been expressed as to Vicars v. Wilcocks and Morris v. Langdale, and without deciding that question, distinguished the case under consideration, on the ground that, the goods not having been paid for, there was no absolute contract to deliver, upon which the plaintiff could have his remedy against the seller; that is, as the delivery was prevented by the wrongful conduct of the defendant, and there was no binding contract broken by the seller, therefore the plaintiff was entitled to recover in his action on the case per quod.

In Gunter v. Astor, 4 J. B. Moore, 12, an action was maintained for enticing away workmen from their employment for a piano manufacturer. They were not hired for a limited time, but worked by the piece. The discussion indicates that damages were considered to be recoverable for the breaking up or disturbance of the business of the plaintiff, whereby he suffered the loss of his usual profits for a long period. The grounds of damage were apparently regarded as altogether independent of the mere loss of any contracts with the workmen.

In Benton v. Pratt, 2 Wend. 385, it is held that proof of loss by the plaintiff of what he would otherwise have obtained, though there was no contract for it which he could enforce, will sustain an action for the wrongful conduct by which the loss was occasioned.

also admits the absence of any justifiable cause whatever. This decision is made upon the case thus presented, and does not apply to a case of interference by way of friendly advice, honestly given; nor is it in denial of the right of free expression of opinion. We have no occasion now to consider what would constitute justifiable cause.

The second and third counts recite contracts of the plaintiffs with their workmen for the performance of certain work in the manufacture of boots and shoes; and allege that the defendant, well knowing thereof, with the unlawful purpose of hindering and preventing the plaintiffs from carrying on their business, induced said persons to refuse and neglect to perform their contracts, whereby the plaintiff's suffered great damage in their business.

It is a familiar and well established doctrine of the law upon the relation of master and servant, that one who entices away a servant, or induces him to leave his master, may be held liable in damages therefor, provided there exists a valid contract for continued service, known to the defendant. It has sometimes been supposed that this doctrine sprang from the English statute of laborers, and was confined to menial service. But we are satisfied that it is founded upon the legal right derived from the contract, and not merely upon the relation of master and servant; and that it applies to all contracts of employment, if not to contracts of every description.

In Hart v. Aldridge, Cowp. 54, it was applied to a case very much like the present.

In Gunter v. Astor, 4 J. B. Moore, 12, it was applied to the enticing away of

workmen not hired for a limited or constant period, but who worked by the piece for a piano manufacturer.

In Sheperd v. Wakeman, Sid. 79, it was applied to the loss of a contract of marriage by reason of a false and malicious letter claiming a previous engagement.

In Winsmore v. Greenbank, Willes, 577, the defendant was held liable in damages for unlawfully and unjustly "procuring, enticing and persuading" the plaintiff's wife to remain away from him, whereby he lost the comfort and society of his wife, and the profit and advantage of her fortune.

In Lumley v. Gye, 2 El. & Bl. 216, the plaintiff had engaged Miss Wagner to sing in his opera, and the defendant knowingly induced her to break her contract and refuse to sing. It was objected that the action would not lie, because her contract was merely executory, and she had never actually entered into the service of the plaintiff; and Coleridge, J., dissented, insisting that the only foundation for such an action was the statute of laborers, which did not apply to service of that character; but after full discussion and deliberation it was held that the action would lie for the damages thus caused by the defendant.

V.

In Boston Glass Manufactory Binney, 4 Pick. 425, which was for inducing workmen, skilled in several departments of glass-making, to leave the employment of the plaintiff, it was not suggested that the defendants would not have been liable if there had been an existing contract between the plaintiff and the workmen.

Upon careful consideration of the authorities, as well as of the principles involved, we are of opinion that a legal cause of action is sufficiently stated in each of the three counts of the declaration. Demurrer overruled. P. E. Aldrich & T. G. Kent, for the plaintiffs.

H. B. Staples (C. Cowley & F. P. Goulding with him), for the defendant.

WILLIAM A. SNOW et als v. DANIEL W.

WHEELER et als.

WORCESTER. 1873.

113 Mass. 179.

Legality of trades organization, declared.

Bill in equity brought by the plaintiffs on behalf of themselves and other members of the North Brookfield Lodge No. 28 of the Order of the Knights of St. Crispin against certain persons to compel them to sign an order to withdraw money belonging to the Lodge and deposited in the name of the defendants as trustees. The North Brookfield Lodge No. 28 of the Order of the Knights of St. Crispin was one of the subordinate lodges of the International Grand Lodge of the Order of the Knights of St. Crispin and was a voluntary association of boot and shoe workers.

C. Cowley, for the plaintiffs. P. E. Aldrich, for the defendants. COLT, J. This bill is brought on behalf of a voluntary association, the individual members of which are too numerous to be joined as plaintiffs, and it is therefore brought in the name of a few, for themselves and all the other members. Birmingham v. Gallagher, 112 Mass. 190. It is heard upon the pleadings and master's report.

The individuals named as defendants were members of the association, and received its funds from the treasurer as a committee chosen to deposit the same for safe keeping in the bank, which is named as a co-defendant in the bill. The money was deposited in their names, as trustees, and they now refuse to restore it to the control of the association the defendant bank refusing to pay without an order signed by the trustees, but submitting itself to the decree of the court.

The only question before us is, whether upon the facts stated in the master's report, and contained in the documents referred to, the trust set forth must have been assumed by the defendants for an illegal purpose. The plaintiffs are clearly entitled to recover their own money thus detained by par

ties who received it in a fiduciary capacity, unless it appears that the money was delivered to them, or must be held when recovered by the plaintiffs, for a purpose immoral, illegal or contrary to public policy.

The object and purposes of the association which the plaintiffs represent are shown by the constitution and bylaws of the lodge, which are made part of the case; these are subscribed to by each member at the time of his admission, with an additional agreement "not to teach or cause to be taught any new hand any part or parts of the boot or shoe trade without the permission of the lodge of which I am a member." Its members are wholly composed of individuals employed as workmen in the manufacture of boots and shoes, but it does not include proprietors or their foremen.

It is insisted that the agreements thus established between the members of the order are in unlawful restraint of trade, and therefore illegal, as being against public policy. But in the opinion of the court the point is not well taken. In the relations existing between labor and capital, the attempt by co-operation on the one side to increase wages by diminishing competition, or on the other to increase the profits due to capital, is within certain limits lawful and proper. It ceases to be so when unlawful coercion is employed to control the freedom of the individual in disposing of his labor or capital. It is not easy to give a definition which shall include every form of such coercion; it is enough that in the compact before us there is no evidence of any purpose to use such unlawful means in any form.

In Walker v. Cronin, 107 Mass. 555, 564, it is said that " every one has a right to enjoy the fruits and advantages of his own enterprise, industry, skill and credit. He has no right to be protected against competition; but he has a right to be free from malicious and wanton interference, disturbance or annoy

ance. If disturbance or loss come as a result of competition or the exercise of like rights by others, it is damnum absque injuriâ.”

In Carew v. Rutherford, 106 Mass. 1, 14, it is said, "Every man has a right to determine what branch of business he will pursue, and to make his own contracts with whom he pleases and on the best terms he can." "He may refuse

to deal with any man or class of men. And it is no crime for any number of persons, without an unlawful object in view, to associate themselves together and agree that they will not work for or deal with certain men or classes of men, or work under a certain price, or without certain conditions." And in Commonwealth v. Hunt, 4 Met. 111, 134, Shaw, C.J., declares that the legality of such association will depend upon the means to be used for the accomplishment of its objects and whether they be innocent or otherwise.

In the case at bar there is no evidence afforded by the documents submitted to us that the purposes of this association are unlawful by the rule stated. Unlawful coercion certainly does not appear to be intended. And the right of the members to instruct whom they choose in the mysteries of their trade cannot be denied. The case presented is not one where there is evidence to justify us in finding that the objects and purposes of the association are fraudulently and colorably declared as a cover for a secret unlawful agreement of its members. It will be time enough to deal with such a case when it arises.

In this view, it is not necessary critically to examine the instances of alleged illegal conduct which it is said are found upon the records of the association, or to inquire whether they amount to illegal restraint of that freedom in trade which the law secures to all, because specific wrongful acts cannot be shown to defeat the plaintiffs' claim, unless it be also shown that such acts come

Display of banners by striking workmen in front of employer's factory enjoined.

Bill in equity alleging that the firstnamed plaintiff was engaged in the business of manufacturing boots and shoes in Lynn; that there was a voluntary association in Lynn called the Lasters Protective Unior, composed of persons engaged in lasting boots and shoes, of which the first-named defendant was the president, and the other defendant, Charles H. Leach, was the secretary; that a question having arisen as to wages, on January 8, 1887, certain lasters left the plaintiffs' employment, giving as a reason therefor that they I did not dare to work for them further on account of the defendants; that, in order to intimidate others from taking their places and to prevent such lasters. from re-engaging in their employment, the defendants, with the assent of the association and out of its moneys, caused to be carried in front of Sherry's factory, by a boy hired for that purpose, a banner bearing the following inscription: "Lasters are requested to keep away from P. P. Sherry's. Per order. L P. U."

The bill further alleged, that, because of such banners, crowds of people gathered in front of the factory when the lasters left their work; that the lasters were injured and threatened with bodily harm if they continued in the plaintiffs'

employment; that the banner and the acts of the defendants were part of a scheme to prevent persons from entering the plaintiffs' employment, and that the banner was carried in front of the factory until March 22, 1887, when another banner was substituted with the following inscription: "Lasters on a strike and lasters are requested to keep away from P. P. Sherry's until the present trouble is settled. Per order L. P. U."

The bill also alleged that the business carried on by the plaintiffs was a large one, and if the defendants were permitted to continue it would be seriously injured and destroyed.

The prayer of the bill was, that the defendants might be restrained from making such banners, and from causing them to be similarly carried, and for further relief.

Hearing before C. Allen, J., who found the facts substantially as alleged and reported the case for the consideration of the full court.

J. R. Baldwin, for the defendants. R. Lund & F. Hurlburt (T. M. Osborne with them), for the plaintiffs.

W. ALLEN, J. The case finds that the defendants entered, with others, into a scheme, by threats and intimidation, to prevent persons in the employment of the plaintiffs from continuing in such employment, and to prevent others from entering into such employment; that the banners with their inscriptions were used by the defendants as part of the scheme; and that the plaintiffs were thereby injured in their business and property.

The act of displaying banners with devices, as a means of threats and intimidation to prevent persons from entering into or continuing in the employment of the plaintiffs, was injurious to the plaintiffs, and illegal at common law and by statute. Pub. Sts. c. 74, § 2. Walker v. Cronin, 107 Mass. 555. We think that the plaintiffs are not restricted to their remedy by an action at

law, but are entitled to relief by injunction. The acts and the injury were continuous. The banners were used more than three months before the filing of the plaintiffs' bill, and continued to be used at the time of the hearing. The injury was to the plaintiffs' business, and adequate remedy could not be given by damages in a suit at law.

The wrong is not, as argued by the defendants' counsel, a libel upon the plaintiffs' business. It is not found that the inscriptions upon the banners were false, nor do they appear to have been in disparagement of the plaintiffs' business. The scheme in pursuance of which the banners were displayed and maintained was to injure the plaintiffs' business, not by defaming it to the public, but by intimidating workmen, so as to deter them from keeping or making engagements with the plaintiffs. The banner was a standing menace to all who were or wished to be in the employment of the plaintiffs, to deter them from entering the plaintiffs' premises. Maintaining it was a continuous unlawful act, injurious to the plaintiffs' business and property, and was a nuisance such as a court of equity will grant relief against. Gilbert v. Mickle, 4 Sandf. Ch. 357. Springhead Spinning Co. v. Riley, L. R. 6 Eq. 551.

Boston Diatite Co. v. Florence Manuf. Co., 114 Mass. 69, was a case of defamation only. Some of the language in Springhead Spinning Co. v. Riley has been criticised, but the decision has not been overruled. See Boston Diatite Co. v. Florence Manuf. Co., ubi supra; Prudential Assurance Co. v. Knott, L. R. 10 Ch. 142; Saxby v. Easterbrook, 3 C. P. D. 339; Thorley's Cattle Food Co. v. Massam, 14 Ch. D. 763; Thomas v. Williams, 14 Ch. D. 864; Day v. Brownrigg, 10 Ch. D. 294; Gaskin v. Balls, 13 Ch. D. 324; Hill v. Davies, 21 Ch. D. 798; Hermann Loog v. Bean, 26 Ch. D. 306.

Decree for the plaintiffs.