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sometimes of refusal to sell; but it does not appear that, as between these classes of cases, there is any difference as to the rule of liability applicable.

and transactions, was refused. This decision was followed in Macauley v. Tierney, 19 R. I. 255; s. c., 33 Atl. Rep. 1 (1895), sustaining an agreement by an association of master plumbers not to deal with dealers in plumbing materials sell ing to other than master plumbers, in a suit by plumbers, not members of the association, to restrain the performance of acts under the agreement. See criticism of Bohn Manuf. Co. v. Hollis, in Hopkins v. Oxley Stave Co., 49 U. S. App. 709, 721; s. c., 83 Fed. Rep. 912, 920 (8th Cir., 1897). But there are decisions in conflict with those just considered. Thus, in Jackson v. Stanfield, 137 Ind. 592, 607; s. c., 36 N. E. Rep. 345 (1894), an agreement contained in the constitution of an association of about one hundred and fifty retail lumber dealers provided thus, as stated by the court: "The regular dealer, when his territory is encroached upon by a wholesale dealer or manufacturer, is authorized to notify the person so offending that he has a claim against him for such sale or shipment, and to make a demand therefor. If the parties cannot adjust it, it is made the duty of the member to notify the secretary of the facts in the case, who shall refer the matter to the executive committee, whose duty it is to hear the grievances and determine the claim. If the wholesaler or manufacturer ignores the decision of the commit

tee, it is the duty of the secretary to notify the members of the association of the name of the person so offending, and of the members to no longer patronize him. If they continue to deal with the offender, they shall be expelled from the association; and if any member refuses to abide by the decision of the executive committee, his name is to be stricken from the membership of the society. The facts found by the court disclose that the appellees, as members of the combination complained of, availed themselves of the means provided for in § 3, to destroy the business of the appellants (plaintiffs) as brokers in lumber, because they were not retail dealers within the definition of the term, and that they effectuated their purpose. The special findings of fact clearly show it to be a compact to suppress the competition of those dealers who did not own yards with an adequate stock on hand, by driving them out of business. By this plan they reach the wholesale dealer and compel him to pay an arbitrary penalty, under a threat of financial injury, and they force him to assist in ruining the dealer who does not own a yard." An action for an injunction and for damages as for conspiracy, was sustained by a broker who had purchased from a wholesale dealer against whom the association enforced the penalty, and which, fearing a repetition thereof, re

§ 12. Boycott by employee.- Again assuming the necessity of some special relation, to justify inducing a refusal to deal, it would seem on principle that the relation of employee is sufficient. That is to say, the relation of employee to employer is, if not strictly that of a competitor in trade, yet sufficiently analogous to it to justify the employee, in case of dispute with his employer, in inducing third persons to refuse to deal with the employer, as a means of inducing the employer to yield to the demands of the employee. That there is nothing necessarily unlawful in this seems to be the rule.1

fused to again deal with the plaintiff. So in Olive v. Van Patten, 7 Tex. Civ. App. 630; s. c., 25 S. W. Rep. 428 (1894), the decision in Delz v. Winfree, 80 Tex. 400; s. C., 16 S. W. Rep. 111 (1891) (see § 9, p. 39, above), was followed in sustaining an action by a lumber dealer against an association of such, it being alleged that, because of his refusal to join such association, they maliciously distributed circulars asking that patronage be withdrawn from him until he agreed not to sell to others than dealers, thereby influencing others not to deal with him. On the same principle is sustainable, if at all, Dueber Watch-case Co. v. Howard Watch & Clock Co., 3 Misc. 582; s. c., 24 N. Y. Suppl. 647 (Supm. Ct., Sp. T., 1893). But see § 29. Compare People v. Duke, 19 Misc. (N. Y.) 292 (N. Y. Co. General Sessions, 1897).

1 Thus, where a controversy was in existence between a combination of employers and one of employees, an injunction against the issuance by such employees of circulars requesting the customers of certain members of the combination of employers not to deal with them was refused, there being no

proof of "violence, injury to property, threats or intimidation." The court say: "At best the circulars were but one of the instruments used by the defendants in their contest with the association of which the plaintiffs were members." Sinsheimer v. United Garment Workers, 77 Hun, 215; s. C., 28 N. Y. Suppl. 321 (1894). The court broadly declare the right of the defendants "to endeavor to persuade those who had been accustomed to deal with" members of the association (to which the plaintiffs belonged) to discontinue their trade. The decision seems, however, to mainly rest on the fact that the plaintiffs did not come into court "with clean hands," being members of a combination of employers who had employed methods similar to those that they now complained of. Compare, as to methods adopted by way of retaliation, Barr v. Essex Trades Council, 53 N. J. Eq. 101, 126; s. c., 30 Atl. Rep. 881 (1894). There is a dictum (in Sinsheimer v. United Garment Workers) that the combination of employers "had the right to lock out all operatives connected with the defendants' association because of de

But the question of greatest difficulty arises in applying the rule to what we may consider as a conflict of the "solidarity of interest" of a number of employees as against one or more employers. Conceding that, in case of dispute between an employee and his immediate employer, it is lawful for the former to employ the boycott as a weapon, is it lawful for others, not employees of such employer, but moved by the solidarity of interest of a body of employees engaged in the same general occupation, to employ the same weapon in the same dispute? For instance, the employees in an iron mill engage in a dispute with their employer, and lawfully, as we here assume, employ the boycott as a weapon. Is it likewise lawful for other members of a union, say of all employees in iron mills throughout the country, to intervene in this particular dispute and boycott this particular employer, though, apart from their relation as members of this union, having no dispute with this employer or any other employer? Thus far it would seem that the judicial mind has not risen to the point of regarding this solidarity of interest of a large number of employees engaged in the same general occupation, as constituting a sufficient basis on which to establish the legality of a boycott.' It would seem, however,

mands, which they considered unjust, made by the defendants upon one of their number." This was a reversal of 5 Misc. 448; s. c., 26 N. Y. Suppl. 152 (1893), holding that "it was clear that it was an unlawful injury to plaintiffs' property to send circulars to their customers which would tend to induce such customers to discontinue business with the plaintiff." This decision we regard as a sound one and in harmony with modern requirements, but it seems doubtful whether it is in harmony with the current of authority. See note 1, below. In Lyons v. Wilkins, 1 L. R. Ch. (1896), 811, inducing persons not to enter

the employment of a person against whom a strike had been declared was held unlawful under the prohibition of the Conspiracy and Protection of Property Act of 1875, against "watching and besetting" a residence or place of business.

1 That, however, there is a tendency in that direction appears from what will doubtless be the celebrated case of Allen v. Flood, L. R. App. Cas. (1898), 1, where the defendant, a "delegate" of a trade union, procured the discharge of the plaintiffs, day laborers (with a promise not to employ them again), by stating to the employers that members of the union in their em

that the subject deserves a fuller examination before the law on this subject is allowed to be settled in the lines thus far tentatively established, especially as in somewhat analogous

ploy would quit employment unless the plaintiffs were discharged. The plaintiffs had become offensive to ironworkers who were not only members of the union, but also their fellow-employees, by reason of having, though shipwrights, previously worked for certain employers on "ironwork." The decision proceeded on the express supposition that this was not a case of breach of contract, but merely of discharge from employment (pp. 97, 118, 147). The court say (p. 132): “The object which the defendant and those whom he represented had in view throughout was what they believed to be the interest of the class to which they belonged; the step taken was a means to that end." See also p. 163. Allen ▼. Flood has already been followed in this country, as applicable to the case of a labor union procuring the discharge of a non-union employee, by an announcement of an intention to order members of the union to leave the employment of the same employer. Davis v. United Portable Hoisting Engineers, 28 N. Y. App. Div. 396; s. c., 51 N. Y. Suppl. 180 (1898). So the announcement of such intention under such conditions was, in People v. Davis, 57 Alb. Law Jour. 170 (Cook Co., Ill., Crim. Court, 1898), following Allen v. Flood, held not within the prohibition of a statute against "conspiring or agreeing together with the fraudulent or malicious intent wrongfully and

wickedly to injure the person, character, business, or employment or property of another." Here, however, it did not appear that there was any contract of employment for any definite period. Compare, however, Connell v. Stalker, 20 Misc. 423; s. C., 45 N. Y. Suppl. 1048 (N. Y. City Ct., 1897); affirmed in 21 Misc. 609; s. c., 48 N. Y. Suppl. 77 (1897). See also, as to the solidarity of interest of employees, the vigorous argument of Caldwell, J., dissenting in Hopkins v. Oxley Stave Co., 49 U. S. App. 709, 745; s. c., 83 Fed. Rep. 912, 935 (8th Cir., 1897). But in Toledo, Ann Arbor, etc. Ry. Co. v. Pennsylvania Co., 54 Fed. Rep. 730 (Cir. Ct. Ohio, 1893), an injunction was granted against the enforcement of any rule of a labor union (The Brotherhood of Locomotive Engineers) requiring railroad employees to refuse to handle and deliver freight transported by or to a certain company, and against inducing them to refuse to extend to such companies facilities for exchange of traffic. This was simply the case of the refusal of employees to do their work. It does not appear that they were under contract. The court sought to justify the injunction on the ground that the intent of the employees was to induce their respective companies to refuse to deal with such other company, with the ultimate purpose of inducing the latter to discharge certain employees (engineers) not

cases solidarity of interest has been recognized as constituting such a sufficient basis.1

The

§ 13. Liability for inducing breach of contract. anomalous doctrine that it is actionable to induce an em

members of the Brotherhood. In the view we have elsewhere taken the intent should have been disregarded. But, waiving that point, the question is whether the intent was to do anything unlawful. Stress was laid on the circumstance that the employees taking such action "were not dissatisfied with the terms of their employment." But the point was, not what were their relations to their immediate employers, but what to the boycotted company. Was not their interest as members of a large labor organization sufficient to justify the boycott, because of the refusal of the boycotted company to discharge persons objectionable to them as not being members of the union? The decision, however, was based, not solely on the ordinary rules applicable to boycotts, but on the additional ground that the refusal to handle interstate freight was in direct violation of the Interstate Commerce Law. Judge Taft, who made the decision herein, had also made the decision in Moores v. Bricklayers' Union, 7 Ry. & Corp. L. J. 108 (Super. Ct. Cinn., 1889), where an action was sustained against a labor union and members thereof, for damage consisting of withdrawal of custom caused by sending to the plaintiff's custom

1 Thus, the interest of a number of tradesmen to protect themselves against dishonest debtors, and the

ers notice that members of the union would not use material supplied by the plaintiff, the motive of such action being the refusal of the plaintiff to accede to the defendants' request to refuse to deal with persons (P. Bros.) with whom, as employees, they had a controversy. Here again we submit that the real question was whether the relation between the defendants and P. Bros. was not such as to justify the defendants in using the boycott as a weapon. In this view the following considerations advanced by the court seem to us to be entirely irrelevant: "The dealings between P. Bros. and their material-men, or between such material-men and their customers, had not the remotest natural connection either with defendants' wages or their terms of employment. There was no competition or possible contractual relation between plaintiffs and defendants, where their interests were naturally opposed. The right of the plaintiffs to sell their material was not one which in its exercise brought them into legitimate conflict with the right of defendants to dispose of their labor as they chose." But, as in the authorities just considered, the mere relation of membership in the same

interest of a number of employers in a contest with employees. (See § 9, pp. 39, 40, above.)

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