« AnteriorContinuar »
this purchase he became the owner of the , business she would have to account to him entire business. It was lawful for him to for the amount for which he rendered himpay her $1,000, and agree to pay her $1,500 self liable on account of such purchase. Her in the future, and it was also lawful for protest against its purchase would not avail her to make a gift of the latter amount to her as an excuse for not so accounting, if her husband. This is the legal effect of the the profits claimed by her were the result of contract upon its face, and, if the gift be the business in which the machine had been came complete, it was immaterial for what actually used. purposes her husband used the money which So that it seems to us that, under any was the subject of the gift. He might use view of the law and facts of the case, no it for the purpose of paying his debts, and other legal judgment could have been renthe subsequent agreement between him and dered than one in favor of the defendant. Dickey that a portion of the money given to There is nothing in the case to authorize a him should be applied by Dickey to the finding that the transaction was a judgment against Morrison and himself was scheme or device to use Mrs. Morrison's a transaction free from legal infirmity. Mor- money for the purpose of paying her husrison would then be paying his own debt band's debt. It was either the use of her with his own money, and not with the money to pay a liability which Dickey would money of his wife. In addition to this, while have a right to claim against her when she Mrs. Morrison was not at all bound by the admitted her ownership, and accepted pojudgment against Morrison and Dickey, and sition as a partner with him, or it was a not in any way liable upon the contract payment by Morrison of his debt with his which was the foundation of that judgment, money, title to which he had derived by a this liability of Morrison and Dickey was voluntary gift from his wife, or the payone of the liabilities of the partnership be- ment of a sum which Mrs. Morrison would tween them; and, when Mrs. Morrison saw have been bound to pay in an accounting tit to disclose her ownership of the busi- with her husband. While the instructions ness, and Dickey saw proper to recognize of the judge are not at all in accord with her as a partner, she then took her position some of the principles above laid down, still, for the first time as a partner in the busi- under the undisputed facts of the case, the ness with Dickey, and she then became lia- verdict for the defendants was demanded, ble, upon an accounting as to the affairs of and any errors committed in charging the the partnership, to account to her partner jury were harmless. for all claims or demands which, as be- Judgment affirmed. tween the partners, would be lawful charges against the partnership business; and, if All the Justices concur. the partnership had gone into liquidation, there would have been, in an accounting between the partners, no legal obstacle in the way of Dickey insisting that the money ex- EMPLOYING PRINTERS' CLUB et al., pended for the machine should be treated,
Plffs. in Err., as between him and Mrs. Morrison, as a ! liability of the firm, and one for which she ! DOCTOR BLOSSER COMPANY. should account for one half. This is true notwithstanding the fact that at the time
(...... Ga. ......) the machine was purchased, when her ownership of the business was not known to * 1. A combination of two or more perDickey, she gave her husband special in- sons to injure one in his trade by instructions not to purchase the machine; it
ducing his employees to break their contract
with him, or to decline to longer continue in appearing that the machine was actually
his employment, is, if it results in damage, purchased and used in carrying on the busi
actionable. ness of the partnership. Take still another 2. A former member of an illegal comview of the matter. The subpartnership, or bination, whose connection with it was serrelation in the nature thereof, existing be- ered before the filing of the suit, will not be tween Mrs. Morrison and her husband, ren
denied the protection of a court of equity dered her liable to account to her husband
* Headnotes by ETANS, J. for all legitimate and necessary expenses incurred in realizing, or attempting to realize, Note.-As to conspiracy by trade union to profits from the partnership between him procure discharge of nonunion men, see, in this and Dickey; and, if the purchase of the ma- series, Flaccus v. Smith, 54 I.. R. A. 640, and chine was necessary or proper for the con
Erdman v. Mitchell, 63 L. R. A. 534. duct of the business, and was actually used
As to boycott or conspiracies by trade unions
or strikers generally, see Casey v. Cincinnati in the business, before Mrs. Morrison could Typographical Union, No. 3, 12 L. R. A. 193, demand from her husband the profits of the and note; Toledo, A. A. & N. M. R. Co. v. Penn
against an illegal act of such combination have the remedy of arbitration exhausted
because of his previous connection therewith. before appealing to the law. 3. The malicious procurement
National Protective Asso. v. Cumming, breach of contract of employment result
170 N. Y. 321, 58 L. R. A. 135, 88 Am. St. ing in damage, where the procurement was during the subsistence of the contract, is an Rep. 648, 63 N. E. 369; Parks v. Andrews, actionable wrong.
56 Hun, 593, 10 N. Y. Supp. 344. 4. A court of equity will interpose by The plaintiffs in error and the labor
injunction to prevent the several members unions had a legal right to agree and act of an illegal combination from enforcing an
in harmony with each other, and they had illegal agreement to the hurt and injury of one engaged in competitive business.
a perfect right to make it a part of this agreement, and stipulate that the members
of the unions should not work for any print(March 23, 1903.)
er in Atlanta except the parties to this ERROR to the Superior Court for Ful- agreement: ton County to review a judgment in
Willis v. Muscogee Ulfg. Co. 120 Ga. 597, favor of plaintiff in an action brought to 48 S. E. 177; National Protectire Asso. v. Anjoin defendants from interfering with Cumming, 170 N. Y. 321, 58 L. R. A. 135, plaintiff's employees. Affirmed.
88 Am. St. Rep. 648, 63 N. E. 369.
Messrs. Kontz & Austin and Howard The facts are stated in the opinion. Messrs. Smith & Wright, for plaintiff's
Van Epps, for defendant in error: in error:
The case discloses an illegal combination Where parties are concerned in illegal
conducting its operations squarely in the
teeth of the law. agreements or transactions, whether they are mala prohibita, or mala in se, courts of 429, 57 L. R. A. 547, 90 Am. St. Rep. 126,
Brown v. Jacobs' Pharmacy Co. 115 Ga. equity, following the rule of law as to par- 41 S. E. 553; Walker v. Cronin, 107 Mass. ticipation in crime, will not grant relief to
555. either party in accordance with the maxim, In pari delicto, etc.
Defendant in error was not in pari de
licto. Harrington v. Bigelow, 11 Paige, 349; Warburton v. Aken, 1 McLean, 460, Fed.
Whenever the plaintiff can make out his (as. No. 17,143; Atuood v. Fisk, 101 Mass.
case without invoking the illegal contract 363, 100 Am. Dec. 124; Sicartser v. Gillett, to his aid, he is entitled to recover. 1 Chand. (Wis.) 207; Davies v. London &
Equitable Loan & Secur. Co. v. Waring, Prorincial Marine Ins. Co. L. R. 8 Ch. Div. 117 Ga. 633, 62 L. R. A. 93, 97 Am. St. 469; Bromley v. Smith, 2 Hill, 517; Van- Rep. 177, 44 S. E. 320; Civil Code, § 3937 ; dyck v. Hewitt, 1 East, 96; Houson v. Han- | Ingram v. Mitchell, 30 Ga. 547; Clarke v. cock, 8 T. R. 575.
Brown, 77 Ga. 606, 4 Am. St. Rep. 98; When the scheme is malum in se, and the Holleman v. Bradley Fertilizer Co. 106 Ga. parties to it are in pari delicto, the law re- 163, 32 S. E. 83; Raleigh & G. R. Co. v. fuses to aid either of them against the Suanson, 102 Ga. 761, 39 L. R. A. 275, 28 other, but leaves them where they have S. E. 601. placed themselves by their own act.
The club could not enforce against defendThomas v. Richmond, 12 Wall. 319, 20 L. ant in error the rules and regulations of its ed. 453; Smith v. Hubbs, 10 Me. 71; Scher- illegal constitution and by-law's. merhorn v. Talman, 14 N. Y. 94; Knowlton Ertz v. Produce Exchange, 82 Minn. 173, r. Congress & E. Spring Co. 57 N. Y. 518; 51 L. R. A. 825, 83 Am. St. Rep. 419, 84 N. Tellis v. Clark, 20 Wend. 24; Smith, Contr. W. 743; Martell v. White, 185 Mass. 255, 3d Am. ed. 187; Burt v. Place, 6 Cow. 431; 64 L. R. A. 260, 102 Am. St. Rep. 341, 69 LeWarne v. Meyer, 38 Fed. 191; Keel v. N. E. 1085; Boutwell v. Marr, 71 Vt. I, Larkin, 83 Ala. 146, 3 Am. St. Rep. 702, 43 L. R. A. 803, 76 Am. St. Rep. 746, 42 3 So. 296.
Atl. 607. Blosser is bound, as a member of the club, If one maliciously interferes in a contract by its rules; and he is bound by the deci- between two parties, and induces one of sion on complaint. He is also bound to them to break that contract, to the injury of the other, the party injured can maintain 9 Atl. 559; Curran v. Galen, 2 Misc. 553, an action against the wrongdoer.
sylvania Co. 19 L. R. A. 395 ; Toledo, A. A. & Gray v. Building Trades Council, 63 L. R. A.
22 N. Y. Supp. 826; Sherry v. Perkins, 147 Angle v. Chicago, St. P. M. &0. R. Co. Mass. 212, 9 Am. St. Rep. 689, 17 N. E. 151 U. S. 13, 38 L. ed. 62, 14 Sup. Ct. Rep. 307; Van Horn v. Van Horn, 52 N. J. L. 240; Lumley v. Gye, 2 El. & Bl. 216; Bige- 284, 10 L. R. A. 184, 20 Atl. 485; Hopkins low, Torts, 1st ed. p. 108; Jones v. Blocker, v. Oxley Stave Co. 28 C. C. A. 99, 49 U. S. 43 Ga. 331; Salter v. Howard, 43 Ga. 601; App. 709, 83 Fed. 912; State v. Glidden, 55 Smith v. Goodman, 75 Ga. 198; Bixby v. Conn. 46, 3 Am. St. Rep. 23, 8 Atl. 890; Dunlap, 56 N. H. 456, 22 Am. Rep. 475; Delz v. Winfree, 80 Tex. 400, 26 Am. St. Huff v. Watkins, 15 S. C. 82, 40 Am. Rep. Rep. 755, 16 S. W. lll; Thomas v. Cincin680; Daniel v. Swearengen, 6 S. C. N. S. nati, N. 0. & T. P. R. Co. 4 Inters. Com. 297, 24 Am. Rep. 471; Haskins v. Royster, Rep. 788, 62 Fed. 803; Crump v. Com. 81 70 N. C. 601, 16 Am. Rep. 780; Hewitt v. Va. 927, 10 Am. St. Rep. 895, 6 S. E. 620. Ontario Copper Lightning Rod Co. 44 U. C. Conspiracies to injure the business of anQ. B. 287.
other by inducing employees or others under It is only necessary that the relation of contract to quit work and break, contracts, master and servant exist. It matters not and by otherwise maliciously interfering, whether the contract is valid or not, or are unlawful and actionable. whether the employee is employed at will or Toledo, A. A. & N. J. R. Co. v. Pennsyl. for a definite period of time.
vania Co. 19 L. R. A. 387, 5 Inters. Com. 16 Am. & Eng. Enc. Law, pp. 11ll, note 8, Rep. 522, 54 Fed. 730; Murray v. McGori1114, note 8; Webb’s Pollock, Torts, Am. gle, 69 Wis. 483, 34 N. W. 522; Barr v. ed. pp. 278, 279; Gunter v. Astor, 4 J. B. Essex Trades Council, 53 N. J. Eq. 101, 30 Moore, 12, 21 Revised Rep. 733; Moran v. Atl. 881; State v. Dyer, 67 Vt. 690, 32 Atl. Dunphy, 177 Mass, 485, 52 L. R. A. 115, 83 814; Cæur D'Alene Consol. Min. Co. v. AlinAm. St. Rep. 289, 59 N. E. 125; Noice v. ers' Union, 19 L. R. A. 382, 51 Fed. 260; Brown, 39 N. J. L. 569; Haskins v. Royster, O'Neil v. Behanna, 182 Pa. 236, 38 L. R. A. 70 N. C. 611, 16 Am. Rep. 780; Chipley v. 382, 61 Am. St. Rep. 702, 37 Atl. 843; Jones Atkinson, 23 Fla. 206, 11 Am. St. Rep. 367, v. Stanly, 76 N. C. 355; Re Debs, 158 U. S. 1 So. 934; Salter v. Howard, 43 Ga. 601; 564, 39 L. ed. 1092, 15 Sup. Ct. Rep. 900: Walker v. Cronin, 107 Mass. 555; Benton v. Boyson v. Thorn, 21 L. R. A. 233, note, 98 Pratt, 2 Wend. 385, 20 Am. Dec. 623. Cal. 578, 33 Pac. 492; Wabash R. Co. v.
Lumley v. Gye is now the law of Eng. Hannan, 56 Cent. L. J. 314, note; Walsh v. land.
Master Plumbers' Asso. (Mo.) 56 Cent. L. Quinn v. Leathem  A. C. 495; Read J. 253, note; 1 Jaggard, Torts, $$_204–207; v. Friendly Soc.  2 K. B. 738; Bowen 2 Addison, Torts, pp. 739 et seq. v. Hall, L. R. 6 Q. B. Div. 333.
Contracts in restraint of competition and The doctrine is generally recognized in trade are void and against the policy of this America.
state. Ames, Lead. Cas. on Torts, pp. 608, 612; Brown v. Jacobs' Pharmacy Co. 115 Ga. Heaton Peninsular Button-Fastener Co. v. 429, 57 L. R. A. 547, 90 Am. St. Rep. 126, Dick, 55 Fed. 23, 52 Fed. 667; Lally v. Cant- 41 S. E. 553; Rakestraw v. Lanier, 104 Ga. well, 30 Mo. App. 524.
188, 69 Am. St. Rep. 154, 30 S. E. 735; AtAs respects enticing away servants, the lanta v. Stein, lll Ga. 789, 51 L. R. A. authorities all seem to agree that a right of 335, 36 S. E. 932; United States v. Addyston action lies.
Pipe & Steel Co. 46 L, R. A. 122, 29 C. C. Read v. Friendly Soc.  2 K. B. 732; A. 141, 54 U. S. App. 723, 85 Fed. 271; Temperton v. Russell  1 Q. B. 715; Bailey v. Master Plumbers' Asso. 102 Tenn. Bowen v. Hall, L. R. 6 Q. B. Div. 333; 99, 46 L. R. A. 561, 52 S. W. 853; People v. Angle v. Chicago, St. P. M. &0. R. Co. 151 Sheldon, 139 N. Y. 251, 23 L. R. A. 221, 36 U. S. 1, 38 L. ed. 55, 14 Sup. Ct. Rep. 240; Am. St. Rep. 690, 34 N. E. 785; Anti-moMoran v. Dunphy, 177 Mass. 485, 52 L. R. | nopoly Legislation from the Days of ElizaA. 115, 83 Am. St. Rep. 289, 59 N. E. 125; beth lo the Anti-Trust Act of 1890, 55 Cent. Carew v. Rutherford, 106 Mass. 1, 8 Am. L. J. 144; United States v. Northern SecuRep. 287; Plant v. Woods, 176 Mass. 492, rities Co. 120 Fed. 721; Jackson v. Stan51 L. R. A. 339, 79 Am. St. Rep. 330, 57 N. field, 137 Ind. 592, 23 L. R. A. 588, 36 N. E. E. 1011; Doremus v. Hennessy, 176 III, 608, 345, 37 N. E. 14; Gregory v. Brunswick, 6 43 L. R. A. 797, 68 Am. St. Rep. 203, 52 Mann. & G. 205. N. E. 924, 54 N. E. 524; Chipley v. Atkin- Any combination the object of which is son, 23 Fla. 206, 11 Am. St. Rep. 367, 1 So. to attempt by force, or threats, or intimida. 934; Old Dominion S. S. Co. v. McKenna, 30 tion, to control an employer in the deterFed. 48; Walker v. Cronin, 107 Mass. 555; mination as to whom he will employ or the Rogers v. Evarts, 17 N. Y. Supp. 264; State wages he will pay is an unlawful conspir. v. Stewart, 59 Vt. 273, 59 Am. Rep. 710,'acy.
Eddy, Combinations, p. 506; Brown v. among bidders for printing of any sort to Jacobs Pharmacy Co. 115 Ga. 429, 57 L. R. be done in the city of Atlanta, and for mainA. 547, 90 Am. St. Rep. 126, 41 S. E. 553. taining an arbitrary and extortionate scale
of prices upon any contracts that might be Evans, J., delivered the opinion of the received for work done in the city.” This court:
combination or club had a written constituThe Doctor Blosser Company, a corpora- tion and by-laws, a copy of which was aption, brought an action against a number of pended to the petition. Among the objects printing concerns using the club or trade of the club, as recited in its constitution, name of the "Employing Printers' Club of were “the maintenance of legitimate prices, Atlanta," and composed of individuals, the suppression of undue rivalry, and mutual firms, and corporations engaged in the book protection from abuses or infringement upand job printing trade in the city of Atlan- on our rights by others.” The rules providtil, and whose names are set out in the rec- ed for a fixed minimum scale of prices, that ord, asking an injunction and praying dam- no member should give any rebate or conitges. The court granted the injunction, and cession to a customer, and for a uniform exception is taken to this order. On the discount only to other members of the assointerlocutory hearing the defendants urged ciation. Rule 8 was: “Never give customer by demurrer the insufficiency of the facts an itemized estimate.” The scheme of the depleaded to authorize the relief prayed. Not fendants, who confederated under the name withstanding the demurrer admitted the of the “Employing Printers' Club," was as truth of all the facts which were well-plead- follows: If a customer desiring to have ed, the plaintiff submitted proof tending to printing or publishing done made applicasustain all the essential allegations. tion for a bid to any one of the members
1-3. The complaint is that the defendants constituting the club, it was the understandformed a combination among the employing ing and agreement among all of the members printers to control and fix the price of print. thereof that the printer receiving the bid ing done in the city of Atlanta, and, because for work should name the price for which he the plaintiff refused to affiliate with the was willing to undertake it, and thereupon combination, they wrongfully interfered should list the application, the with the plaintiff's business, and malicious- of the customer, and the proposition ly induced its employees to break their con- for doing the work, giving a complete tracts with it, and refuse to continue in its description of the job to manager employment, to its injury and damage. A appointed for that very purpose, and combination of individuals engaged in a par- salaried by the members of the combinaticular line of business to compel one en- tion; and they in turn were bound severally gaged in a similar business to sell his to each other that, if they were also invited product at prices fixed by it is contrary to to make competitive bids, they would fix the public policy, and void; and the members price for such equal to or higher than that of such a combination, individually, and col- proposed by the first printer receiving the lectively, may, by appropriate injunction, be application and listing the bid. It was alrestrained from wrongfully interfering with leged that the combination enforced a rule the business of the one who is not a member between themselves, establishing a systemof the combination. This principle is laid atic way of handling the public printing for down in the well-considered case of Brown the city of Atlanta, under the operation of V. Jacobs' Pharmacy Co. 115 Ga. 429, 57 L. which each printer was to have his turn; R. A. 547, 90 Am. St. Rep. 126, 41 S. E. the manager to keep track of this branch of 553, is supported both by reason and author- the business, and notify the different memity, and its application to the case in hand bers, when the city of Atlanta asked for is readily apparent.
bids, whose turn it was to do the work. They The facts alleged in the petition were as were to make the price and add 10 per cent, follows: The plaintiff was engaged in the and charge the city, not only the fixed, arcity of Atlanta in the general business of a bitrary price, but also the additional 10 per printer for the public, enjoying a large trade cent on the fixed price. It was alleged that and doing a prosperous business. The de a committee from the Employing Printers fendants were also engaged in the printing Club, who also represented the defendants, business, and formed a combination or trust, as members of the club, waited on the plaincalled the "Employing Printers' Club of At- tiff, and advised its officers that it could not lanta, Georgia.” This combination embraced continue to employ union labor in its shop nearly the entire printing and publishing unless it became a member of the club. fraternity of Atlanta except the newspapers, Plaintiff inquired of the committee the purand its organization was "for the single and pose and scope of the club, and was informed sole purpose of restraining trade, of abso- that it was a secret institution, and that lutely defeating and destroying competition' it was necessary to become a member before
its secrets could be imparted. To prevent the club would cause all union labor to leare being deprived of union labor, which was its employment. The plaintiff refused to the only labor obtainable, and ignorant of comply with the club's demand, and declined the real purposes of the club, the plaintiff to affiliate longer with the club as a member. became a member thereof. About October notifying it of this resolve. Then the club 1, 1901, plaintiff made a contract with the caused the pressmen, feeders, printers, and managers of the Wesleyan Christian Advo- binders employed by the plaintiff to quit cate to publish that periodical, and was pro- work, thereby shutting down the plaintiff's ceeding to execute the contract, when it was establishment, and rendering it impossible notified by the Employing Printers' Club for it to conduct its business, or to execute that it had violated the rules of the club in existing contracts, or to undertake further accepting such contract, and was fined $468 employment in the line of its trade. Aefor taking the contract. The club decided tual damages were alleged to have been susthat the right to print that periodical be- tained by the plaintiff in the sum of $10.longed to the Foote & Davies Company, one 000. On the interlocutory hearing it apof the defendants, and that the plaintiff peared that some of the employees returned should not have underbid that company. In to the work, and that their respective unions addition to imposing the fine, the club ruled refused to call a strike in the plaintiff's that at the end of the year 1902 the publi- shop. The defendants then threatened that. cation price of the Advocate for the year unless the unions would call out its labor 1903 should be fixed by the Foote & Davies from the plaintiff's shop they would no longCompany. The plaintiff was dissatisfied er observe the union regulations. In purwith this ruling, and resigned its member- suance of this threat, some of the defendship in the club, whereupon plaintiff was ants had posted their respective businesses notified by a committee from the club that, as “open shops," and the plaintiff's petiunless it paid the fine and came back into tion was filed at this juncture of affairs. the club, all union labor would be called out There can be no doubt that the facts al. of its shop. The plaintiff, persisting in its leged in the petition, if true (and the derefu
to resume relationship with the murrer admits their truth), establish, not club, was assured by a committee from the only a conspiracy to fix and control the club that it had been reorganized on a legal price of printing in the city of Atlanta, but basis. Upon this assurance the plaintiff re- also a malicious interference with the busisumed its membership in the club, and the ness of the plaintiff. The scope and purpose fine was reduced to $125. The major part of the Employing Printers' Club was to creof this fine was paid, and plaintiff resumed ate a monopoly and stifle competition in the its membership because of the threat to call printing business. A mere agreement to do out the union labor from its shop, and to wrong is not actionable; but when the paravoid the damages incident to the loss of ties to such agreement do an overt act in this class of labor. In October, 1902, the furtherance of the illegal combination, reWesleyan Christian Advocate's managers ap- sulting in injury to a third person, the plied to the plaintiff to print that paper conspiracy becomes actionable, and the conduring the year 1903, stating that they spirators are liable to the injured parts were aware of the existence of the print- for damages proximately flowing from their ers' combination, but before they would pay illegal conduct. more than they were paying they would It is contended by the plaintiffs in error withdraw their work from Atlanta, and that, conceding that the combination among place it elsewhere. Thereupon the plaintiff the defendants was an illegal one, the plainmade them a bid which afforded a reason- tiff in the court below was a party to it, able net profit on the proposed work. The and cannot be heard to complain in a court Employing Printers' Club then met and sat of equity. It is true that at one time the in judgment on the plaintiff's action in tak- plaintiff was a member of the trust, but, ing the contract for the second time for the when the trust essayed to discipline it, it republication of this periodical, and adjudged pudiated the club, and informed its officers that the plaintiff pay the Foote & Davies that it would no longer afliliate with the Company $300 in cash to partly reimburse club. It was then that the club was proit for the loss of the profit on the publica- ceeding to punish it by calling out its emtion of the Wesleyan Christian Advocate, ployees. The maxim that one must come and that the naming of the price for the into a court of equity with clean hands publishing of this periodical "revert irrev. means that he must do equity as respects ocably" to the Foote & Davies Company the defendant's rights in the particular matat the expiration of the present contract. ter of the suit. 1 Pom. Eq. Jur. § 397. Several attempts were made to induce the “The rule that a complainant must come plaintiff to comply with this edict, and it into equity with clean hands does not go was threatened that, if it did not comply, so far as to prohibit a court of equity from