A selection of cases and other authorities on labor law online

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contract hius been made between A and B that the latter should go
supercargo for the former on a voyage to China, and C, however
maliciously, jjei-suades B to break his contract, l)ut in vain, no one,
I supjxjse, would contend that any action wouhl lie against C. On
the other hand, suppose a contract of the same kind made Ix^tween
the same parties to go to Sierra Leone, and C urgently and bona
fide advises B to abandon his contract, which on consideration B
does, whereby loss results to .V; I think no one will be found l>old
enough to maintain that> an action would lie agamst C. In the tirst
case no loss has resulted; tho mjaJice has been ineffectual; in the
second, though a loss hiis res^ulted from the act, that act was not
C's, but entirely and exclusively B's own. If so, let malice be ailded,
and let C have persuaded, not bona fide but mala fide and maliciously,
still, all other circumstances remaining the same, the same n^ason
applies; for it is inalitia sine damno, if the hurtful act is entirely and
exclusively B's, which last circum.stance cannot V)e affected by the
presence or absence of malice in C. Thus far I do not apprehend
much difference of opinion: there would lie such a manifest absunl-
ity in attempting to trace up the act of a free agent breaking a con-
tract to all the advisers who may have influenced his mind, more or
less hon(>stly, more or less powerfully, and to make them respon-
sible civilly for the conse(iu(Mu-(>s of what after all is his own act,
and for the whole of the hurtful consequences of which the law makes
him directly and fully responsibl(>, that I bt^lieve it will never be
contended for seriouslv. . . . Certainly no subject could well be




more fruitful or important; important contracts are more com-
monly broken with than without persuaders or procurers, and these
often responsible persons when the principals may not be so. I am
aware that with respect to an action on the case the argument primm
impresswnis is sometimes of no weight. If the circumstances under
which the action would be brought have not before arisen, or are of
rare occurrence, it wiU be of none, or only of inconsiderable weight;
but, if the circumstances have been common, if there has been fre-
quently occasion for the action, I apprehend it is important to find
that the action has yet never been tried. Now we find a plentiful
supply both.oftext and d ecision in the case of seduction of fiervants;.
and what inference Hoes this lead to^ cont rast ed with the silenced
t^5~boe^ ^d the absence of decisions on the case of breach ^oFoF-
dmary ^gg^^s? Let'l^iis too be considered: that7~in5y"the~com-
■ riion Taw rfwaFactionable effectually to persuade another to break
his contract to the damage of the contractor, it would seem on prin-
ciple to be equally so to uphold him, after the breach, in continu-
ing it. Now upon this the two conflicting cases of Adams v. Bafeald,
1 Leon. 240, and Blake v. Lanyon, 6 T. R. 221, are worth consider-
ing. In the first, two judges against one decided that an action does
not lie for retaining the servant of another, unless the defendant
has first procured the servant to leave his master; in the second,
this was overruled, and, although it was taken as a fact that the
defendant had hired the servant in ignorance and, as soon as he
knew that he had left his former master with work unfinished, re-
quested him to return, which we must understand to have been a
real, earnest request, and only continued him after his refusal, which
we must take to have been his independent refusal, it was held that
the action lay: and this reason is given: "the very act of giving him
emplo>Tnent is affording him the means of keeping out of his former
service." Would the judges who laid this down have held it ac-
tionable to give a stray servant food or clothing or lodging out of
charity? Yet these would have been equally means of keeping him
out of his former service. The true ground^oiuw hich Jji is actio n
wgg_maintain3i3ley Ji at _all^:^ wbjgh

o reference was made. But I mention this case now as shewing

how far courts of justice may be led if they allow themselves, in the
pursuit of perfectly complete remedies for all wrongful acts, to trans-
gress the bounds which our law, in a wise consciousness as I con-
ceive of its limited powers, has imposed on itself, of redressing only
the proximate and direct consequences of wrongful acts. To draw
a line between advice, persuasion, enticement and procurement is
practically impossible in a court of justice; who shall say how much
of a free agents' resohition flows from th(> interference^ of other minds,
or the independent resohition of his own? This is a matter for the
casuist rather than the jurist; still less is it for the juryman. Again^
why draw the line between bad and good faith? If advice^^ivep


mala fide, and loss sustained, entitle me to damages, why, though the
advice be given horu^sTty, burT[nder~wrong"TiTfDrrnatl0Tr7 - witl^ a^loss
sustained, am iTiot (TiTTllcd to tnemr"Acc(mIiiig toall legal analogies,
uuT^na fuks of^Ium wlJioTby^ conscious wilful a<-t, directly injures
me will not relieve him from the obligation to comix'iisate me in
damages for my loss. Again, where several {X'rsons hapiK'n to jx'r-
suade to the same effect, and in the result the party jK'rsuaded acts
ujion the advice, how is it to b<' (Ictcrniined against whom the action
may be brought, whetlier they are to be sued jointly <jr severally,
in what proportions damages are to be recovered? Again, if, in-
stead of limiting our recourse to the agent, actual or constructive,
we will go back to th(! person wiio inunediately persuades or pro-
cures him one step, why are we to stop there? The first mover,
and the malicious mover too, may be removed several steps back-
ward from the party actually induced to break the contract: why
are we not to trace him out? Morally he may be the most guilty.
I adopt the arguments of Lord Ahingcr and my brother Alderson
in the ca,se of Winterlx)ttom v. Wright, 10 M. & W. 109; if we go
the first step, we can shew no good reason for not going fifty. And,
again, I ask how is it that, if the law really be as the plaintiff con-
tends, we have no discussions upon such questions as these in our
books, no decisions in our reports? Surely such cases would not
have been of rare occurrence: they are not of slight importance,
and could hardly have been decided without reference to the Courts
in Banc. Not one was cited in the argument l)earing closely enough
upon this point to warrant me in any further detailed examination
of them. I conclude therefore what occurs to me on the first prop-
osition on which the plaintiff's case rests.

I come now to the second proposition, that the decisions in re-
spect of master and servant, and the seducing of the latter from the
employ of the former, are exceptions grafted on the general law-
traceable up to the Statute of Labourers. This is of couree distinct
from the question of the extent of the exception, that is, to what
classes of servants it applies: but the encjuiries are so connected
together in fact, and th(^ latter has so obvious a bearing in support
of the former, that it will ho. better to take them both together.

Now, in the first place, I cannot find any instance of this action
having been brought before the statute passed; the weight of which
fact is much increased by finding that it was of common occurrence
very soon after. The evidence for it is not merely negative; for the
mischief and the cause of action appear to have been W(>11 known
before, and the want of the remedy felt. ... .

Any one, I am certain, who will go through the cases abstracted ^ I
by Fitzh('rl>ert under the title Laborers, will be satisfied that at [ \jo
common law, Ix'fore the Statute, such an action ;us the present could
not be maintained. Under that title 61 eases are^a bridged : _ riIlLDX
of them are for the se^uction'^r^ser\witsr"ljurThere is no mstance




of any one in which the action at common law was sustained, unless
an actual trespass was charged: and it is clear, from the case whicK
I have cited at so^Tnuch length , that the distinction between taking
and procuring to go was familiar to the lawyers of that day. I can
hardly imagine that this could have been said, if the common law
would have given relief in such a case: and, if it could, the rapid
growth of the action after the Statute of Labourers had passed would
be difficult to account for.

I come then to the Statute of Labourers (23 Ed. 3); and my
object now is to shew that nothing in the provisions or policy of that
statute will warrant the action under the circumstances of this case;
and that the older authorities are decidedly against it. . , . What-
ever may be said of the uncertainty and often conflicting nature of
decisions from the Year Books, and, however we may now smile
at some of the reasonings of the judges, probably not without their
weight when uttered, they seem to me satisfactorily to establish
the principle, that actions framed on the statute were governed by
a consideration of the object and language of the statute, and that
y^' j these pointed only to the compulsion of labourers, handicraftsmen,
and people of low degree who had no means of their own to live
upon, and who, if they did not live by wages earned by their labour,
^ would be vagrants, mendicants or worse. If this be so, I appre-
hend it is quite clear that Johanna Wagner could not have been
compelled, while the statute was unrepealed, to serve the plaintiff
in any of the capacities stated in this declaration. ... If Johanna
Wagner be not within the statute, and could only have been sued,
as at common law, upon her contract for the breach of it, it will
follow, I conceive, that the present action could not have been main-
tained against the defendant while the statute was in force, and of
course cannot now, if, as I contend, the action arises from and is
limited by the purview of the statute. . . .

I conclude then that this action cannot be maintained, because:
1st. Merely to induce or procure a free contracting party to break
his covenant, whether done maliciously or not, to the damage of
another, for the reasons I have stated, is not actionable; 2d. That
the law with regard to seduction of servants from their masters'
employ, in breach of their contract, is an exception, the origin of
which is known, and that that exception does not reach the case of
a theatrical performer. . . . Judgment for plaintiff.^

^ Tho (loctrinp of Liimloy v. Gyo, although accepted b y the w e ight o f n^t.hqpt
has^^eca_ fl;itly r^jp^'tftl in :i number o OmnsaiGtiDngr'^c, lor example, Boyson v.
TKom, 98 Cair578; Chambers t;. BaldwinTinKv. 121; Bourlier v. Macauley,
91 Ky. 1.35; Swann v. Johnson, 151 N. C. 93; Sleeper (;. Baker, 22 N. D. 380. Sec
also, Glenooe Land <fe Gravel Co. v. Commission Co., 138 Mo. 4.39 (doctrine re-
jected except where the rehition of mast<>.r and servant exists); Kline v. Eubanks,
109 La. 241. Tlie earlier i)osition of the New York courts, at first expressly re-
jecting the English doctrine of Lumley v. Gye, has been materially modified by
later case.s. As illu.strative of the present attitude of New York courts, see Posner








Supreme Judicial Court of Massachusetts, 1907

195 Mass. 205

LoRiNG, J. This suit came before the sinj^le justice on the report
of a master to which no exceptions had been taken by either party,
an<l waH reserved by him for our consideration and determination
witluMit any rulinji; or decision having been made.

The master found that on Nc)vember 21, 19(K), a ('(jntract was madci
ix'tween the plaintitT and the Jamestown Hotel ("orixnation. That
corporation is erecting or has erected a hotel within the grounds of
the Jamestown Exposition to be held between April 2(> and Novem-
ber 30 of this year. This hotel is known as the Inside Inn, and is to
be the only hotel witliin the exposition grounds. The plaintitT is the
proprietor of a tourist agency, having an office at 293 \Va.shington
Street, Boston. By the contract between the plaintiff and the Hotel
Corporation the |)laintiff agreed to represent the Hotel Corporation
throughout the New England States, to establisii sub-agencies in
that territory, and to use every possible endeavor personally and
through his agents to book persons for the Inside Inn; and the de-
fendant agreed: "That you [the plaintiff] shall \)C our exclusive
agent in said territory"; to pay the plaintitT twenty-five cents a day
for each person sent l)y him to the hotel; and to furnish the plaintiff
with all necessary "literature."

Immediately upon being thus appointed the exclusive agent of the
Hotel Corporation tlie plaintitT prepared and issued a "Fall Edition"
of his "Tiekets and Tours," in which inter alia a description is given of
the Jamestown Exposition and of the Inside Inn. Following this is the
statement that the plaintiff has been appointed New England agent
for the exposition "and exclusive representative of the Inside Inn."

The defendant is found l)y the master to be a ticket and tourist
agent, with an othce at 298 Washington Street, Boston. On Januar>'
11, 1907, he went to Norfolk, \'irginia, and called upon the officers of
the Hotel Corporation there. At this time he "had seen the contract
between the complainant and the hotel corporation, but had not
read it, and knew tliat the company had practically consummated
a contract making Beekman its sole representative in New iMigland."
The defendant at this interview^ told these officers "that it was a mis-
take for the corporation to give an exclusive agency in New England
to any on(^ man, and that more business would be brought to the
company if all agents were given ecjual terms," and to enforce his
arguments stated that the business done l)y the plaintiff was insig-
nificant and that the statement was false which was made in the sum-
Co. V. Jackson, 22:? N. Y. 325; Lanih r. Clienoy. 227 N. V. 41S. The earlier New
York (lootrino may be found in sucli as Daly v. Cornwell, 34 -App. Div. 27;
Dc Jonp V. Hohmian Co., 148 App. Div. 37.


mer edition of his "Ticket and Tours" that certain persons therein
named had his tickets and tours for sale. It appeared that the sum-
mer edition of this catalogue had been shown to the Hotel Corpora-
tion by the plaintiff when he made his contract with it.

The master found that "As a result of the solicitations or repre-
sentations made by the respondent, the Jamestown Hotel Corpora-
tion on or about January 11, 1907, entered into an oral contract with
him, whereby it was agreed that the respondent should have the
same rights that had been given to the complainant, and that he
should be paid by the corporation twenty-five cents per capita per
day for each guest whom he should secure for the Inside Inn."

The defendant then wrote to all men named in the plaintiff's cat-
alogue except those having places of business in Canada, "and two
or three others who appeared to have an independent agency busi-
ness," telling them that the plaintiff had not an exclusive agency for
New England and suggesting to them that they could get paid on the
same footing as that upon which the plaintiff and the defendant were
to be paid, if they chose to act for themselves and not as sub-agents
of the plaintiff. He also wrote to the New York, New Haven, and
Hartford Railroad Co., calling attention to the fact that some of
the local ticket agents of that railroad company were advertised by
the plaintiff as having his tickets and tours on sale, and suggesting
that the railroad company would prefer to have all its agents strictly
neutral in dealing with tourist concerns.

With respect to these letters the master made this finding: "The
purpose of the respondent in sending the letters above mentioned
appears from the letters themselves. I do not find that the respond-
ent was actuated by malice toward the complainant."

The master further found that "The Jamestown Hotel Corpora-
tion has never at any time rescinded, or attempted to rescind, its said
contract with the complainant"; that "The complainant has never
waived any of his rights under the contract, and has never consented
to any modification or alteration thereof except with reference to the
bond" which is not material; and further, that "The Inside Inn is
the only hotel which is located, or, under the contract of the com-
pany with the exposition, can be located, within the exposition
grounds. The exclusive right to act as agent for the Inside Inn within
the New England territory is a valuable right."

Lastly he has found: "There is a strong probability that a large
tourist business will be done between Boston and New England and
the Jamestown Exposition between April and the close of the ex-
position in November, and that many passengers will arrange for
tours through various tourist agencies. In all probability many more
passengers will buy tours and tickets from the complainant if ho is
the exclusive agent in New England for the Inside Inn than will be
the case if other tourist agents also book guests or issue coupons or
other devices which are accepted by the Hotel Corporation for ac-


commodations. The damage which ho will sustain if the respondent
or (jther persons arc allowed to act as agents or to ImmjIc guests or issue
coupons in this manner is incapable of accurate ascertainment. The
loss to the complainant will not Ix' merely the loss of the conuniKsion
of twenty-five cents per capita per day, which would otherwis<- Ik?
received from the hotel, hut it will We the loss of jjrofits on tours which
he might otherwise l>e able to arrange."

The result of the findings of the master must ix- l:ikfn to be that
the defendant induced the Hotel Corporation to break its contract
with th(> plaintiff, but that he did not do this to spit<' the plaintifT or
for the purpos(! of injuring him, but for the purpose of getting for
himself (the defendant) business which the plaintiff alone was en-
titled to under the contract with the Hotel Corporation, that is to
say, to get business which the defendant could not get if the Hotel
Corporation kept its agreement with the plaintiff.

Three defences have been set up by the defendant, namely: Kirst,
that he had a right to do what he did; second, that the plaintiff does
not come into court with clean hands; and third, that the plaintiff
has an adequate remedy at law by bringing an action for tlamages.

1. So far as the first defence is concerned, it is in effect that whei-e
A is under a contract to serve the plaintiff for a si^ecified time, the
defendant, knowing that contract to-be in existence, is justified in
hiring A away from the plaintiff before the expiration of that time,
by giving him (A) higher wages if he (the tlefendaiit) thinks that to
be for his (the defendant's) pecuniary benefit. The ground on which
the defendant bas(>s this contention is that he has a right to compete
with the plaintiff and that the right of competition is a justification
for thus hiring away the plaintiff's servant.

We say that this is in effect the defence set up here because it has
been settled in Massachusetts that there is no distinction l^etween
a defendant's enticing awaj- the plaintiff's servant and a defendant's
inducing a third person to break any other contract between him and
the plaintiff. That was decided by this court in Walker v. Cronin,
107 Mass. 555; see p. 5(>7. See also Moran v. Dunphy, 177 Mass.
485. In other words, this court there adopted the conclusion reached
by the majority of the judges of the Queen's Bench in Lumley v.
Gye, 2 El. k Bl. 21(). This is also the settled law of the Supreme
Court of the United States. Angle v. Chicago, St. Paul, Minneaix)lis
& Omaha llailway, 151 U. S. 1. And it has been affirmed in England.
Bowen v. Hall, 6 Q. B. D. 333. Read v. Friendly Society of OjM'ra-
tive Stonemasons, [1002] 2 K. B. SS. Cdamorgan Coal Co. v. South
Wales Miners' Federation, [1903] 2 K. B. 545; s. c. on apjx^al. .s-i//>
nomine South Wales Miners' Federation v. Cdamorgan Coal Co..
[1905] A. C. 239.

No case has been cited wliich holds tliat a rigiit to eomix^te justifie.«i
a def(>ndant in intentionally inducing a tiiird person to take away
from the plaintiff his contractual rights.


Not only has no case been cited in which that has been held, but
no case has been cited in which that contention has been put for-
ward. . . .

The argument here ui'ged by the defendant comes from not dis-
tinguishing between two cases which not only are not the same but
are altogether different so far as the question now under considera-
tion is concerned.

If a defendant by an offer of higher wages induces a laborer who
is not under contract to enter his (the defendant's) employ in place
of the plaintiff's, the plaintiff is not injured in his legal rights. But
it is a quite different thing if the laborer was under a contract with
the plaintiff for a period which had not expired and the defendant,
knowing that, intentionally induced the laborer to leave the plain-
tiff's employ by an offer of higher wages, to get his (the laborer's)
services for his (the defendant's) benefit.

A plaintiff's right to carry on business, that is, to make contracts
without interference, is an altogether different right from that of
being protected from interference with his rights under a contract
already made. The existence of both rights and the difference be-
tween the two is recognized by Wells, J., in Walker v. Cronin, 107
Mass. 555; the first count in that case went on the first right, and
the second and third counts on the second right. Again, the existence
of the two is recognized and stated by Holmes, J., in May v. Wood,
172 Mass. 11, 14, 15.

Where the plaintiff comes into court to get protection from inter-
ference with his right of possible contracts, that is, of his right to
pursue his business, acts of interference are justified when done by a
defendant for the purpose of furthering his (the defendant's) in-
terests as a competitor. . . .

There are statements in opinions in Massachusetts and in England

that a defendant is not liable for interference with a plaintiff's rights

in both of these two classes of cases unless he acts maliciously within

the meaning of malice as used in these opinions. In the case at bar

<> there was no necessity of proving spite or ill-will toward the plaintiff.

/ This is not a case where there was an abuse of what , if done in good

S faith, would have been a justification, but aj ^se w here the dcfejid-

/ant witlL-knowlcdgc_of^ the contract l)?^fween me^ plaintiff and th^

^IlaEel Corporation intentionally and without justification induced

ItneTlotel Corporation to breakjt. That is proof of malice within

\tKe meaning of that word as used in these opinions. South Wales

/Miners' Federation v. Glamorgan C^oal Co., [1905] A. C. 239.i . . .

3. The finding of the master as to the damages which the plaintiff
is likely to suffer shows that an action at law would not give him
an adequate remedy. Wh(M(> th(> plaintiff prov(>s that the defendant
unlawfully interferes or thn^atens to interfere with his business or his

* That part of the opinion dnaling with the defence that the plaintiff did not
come intf) court with clcjin hands in omitted. — Ed.


rights under a contract, and further makes out in proof that dam-
ages will not afford an adecjuate remedy, ('(juity will isKue an injunc-
tion. The issuing of injunctions in \'eKeljilin v. (luntner, lliT Mii-ss,
92, and similar cases, the of which is Pickett v. W'ulsh, 192
572, are decisi(jns directly in point. As to which see Sherry v. Perkins,
147 212.

The terms of the injunction should Ix^ in substance that the defend-
ant be restrained from directly or indirectly acting as agent of the
Hotel Corporation witliin the New Iliijiland Stsitcs, ajid from pre-
venting or s(H'king to prevent, directly or indirectly, the jjlaintiff
from acting as exclusive agent of the Hotel Corporation for that
territory. So ordered.^


Online LibraryUnknownA selection of cases and other authorities on labor law → online text (page 22 of 124)