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giving its aid to a bad or a faithless man. the old common-law doctrine of malicious The dirt upon his hands must be his bad interference with a contract. Lumley v. conduct in the transaction complained of. Gye, 2 El. & Bl. 216, was a suit for the maAll complainants in equity are human licious procuring of an opera singer, who beings, full of faults and sin, and I doubt had agreed with the plaintiff to perform if there is one case in ten in which the and sing at his theater, and nowhere else, complainant is not somewhat to blame. If for a certain time, to break her contract, the complainant does equity himself, or of- and not perform or sing at the plaintiff's fers to do it (except in those cases where theater during the time for which she was the rule in pari delicto, etc., comes in), his engaged. It was there held that an action hands are as clean as the court can require.” would lie for maliciously procuring a breach Ansley v. Wilson, 50 Ga. 421. The plain- of contract to give exclusive personal tiff is not seeking to obtain any relief by service, provided the procurement was durvirtue of his former connection with the ing the subsistence of the contract and proclub, and is not, therefore, in pari delicto duced damage; and that to sustain such an with the defendants relatively to the cause action it was not necessary that the emof action which it brings against them. Its ployer and employee should stand in the connection with the club ceased before filing strict relation of master and servant. The the suit, and it has repudiated the club as opinion was by a divided court. The maan unholy alliance. Even in criminal law jority of the judges were inclined to the the locus poenitentiæ is recognized. The opinion that an action would lie for the maaggressor may repent, and abandon his licious procurement of the breach of any felonious enterprise, and place himself in a contract, though not for personal services, position where he may rightfully invoke the if by the procurement damage was intended law of self-defense in a subsequent occur- to result, and did result, to the plaintiff. rence. Besides, an unlawful combination in This case was followed in Bowen v. Hall, L. restraint of trade is a wrong to the public, R. 6 Q. B. Div. 333. In 1893 the same quesas well as to the injured individual. If a tion was before the court of appeal of the man confederates with a burglar to break Queen’s bench division (Temperton v. Rusand enter a house, but abandons the crimi. sell [1893] 1 Q. B. Div. 715), and the cases nal project, his agreement to join in the of Lumley v. Gye and Bowen v. Hall were burglary will not justify an infliction of an examined and approved; and these cases injury upon his person by the burglar, and were there said to rest upon the principle deprive him of his right of self-defense, that to maliciously procure a person to merely because of the prior agreement to do break a contractual relation, which all are a criminal act and the abandonment of his bound by law to respect, is actionable; and unlawful intention.

that a right of action for maliciously proIndependently of the conspiracy, the pe curing a breach of contract is not confined tition states a case of malicious interfer to contracts of personal service. By many ence with the plaintiff's contract of employ- it was thought that the House of Lord's ment with its employees. At common law case of Allen v. Flood (1898) A. C. 1, conthe remedies for breach of contract were

flicted with the doctrine announced in confined to the contracting parties, and Temperton v. Russell, or at least materially limited to direct damages and consequential curtailed its scope. But in the later case of damages proximately resulting from the act Quinn v. Leathem [1901] A. C. 495, both of him who is sued. This general rule admit casesTemperton v. Russell and Allen v. ted of one exception, and that was the right Floodwere elaborately reviewed and of action against a stranger for wrongfully analyzed; and, after stating the scope and enticing away a servant in violation of his effect of the latter case, it was ruled that “a contract of service with his master. The combination of two or more, without justifiexception is said to have been based on the cation or excuse, to injure a man in his ancient statute of laborers. The early trade, by inducing his customers or servants English cases limited the action to the en- | to break their contracts with him, or not to ticement of menial servants, but the later deal with him or continue in his employ. cases, beginning with Lumley v. Gye, 2 El. & ment, is, if it results in damage to him, Bl. 216, have extended the doctrine beyond actionable.” The Supreme Court of the menial servants; and by the modern in United States approvingly cited the English terpretation of this doctrine by the English cases of Lumley v. Gye and Bowen v. Hall, courts the rule is extended to a malicious and reached the conclusion that, if one mainterference with any contract. A brief liciously interferes with a contract to the reference to a few English cases will serve injury of the other, the party injured may to present the evolution and extension of maintain an action against the wrongdoer.

Angle v. Chicago, St. P. M. &0. R. Co. 151, very brief opinion, it was pointed out that U, S. 1, 38 L. ed. 55, 14 Sup. Ct. Rep. 240, the declaration was defective in many other Though this rule is not universal in all the particulars. It was defective in not setcourts of last resort of our sister states, it ting forth the nature of the damages. It is believed to have been followed in most of was said, also, that perhaps the contract, them. In the carefully prepared opinion in resting in parol, was not binding, as it was Walker v. Cronin, 107 Mass, 555, the court not to be performed within a year. Nor did decided that a manufacturer is entitled to it appear that Charles Barron was authormaintain an action against a third person, ized to contract for the service of the others. who, with the unlawful purpose of prevent- Inasmuch as the petition was defective in ing him from carrying on his business, wil other vital particulars, the judgment of the fully induced many of his employees to court was not confined to the question of the leave his employment, whereby the manu- malicious procurement of the breach of the facturer lost their services, and the profits contract. Attention is also called to the and advantages which he would have fact that this case was decided in 1873, derived therefrom. See also Moran v. when the principle under discussion was in Dunphy, 177 Mass. 485, 52 L. R. A. 115, 83 its evolutional stage. Speaking for myself, Am. St. Rep. 289, 59 N. E. 125. And the I believe the same reasons which support supreme court of North Carolina held in the principle that an action will lie for the two cases (Haskins v. Royster, 70 N. C. malicious procurement of a breach of con601, 16 Am. Rep. 780; Jones v. Stanly, 76 tract of personal service will cover every N. C. 355) that, if a person maliciously case where one person maliciously perentices laborers or croppers to break their suades and induces another to break any contract with their employer and desert his legal contract. In the case at bar the reservice, the employer may recover damages lation of master and servant did exist beagainst such person.

tween the plaintiff and his employees, and, In this state it has been held that when even applying the common-law rule of liaone man employs a laborer to work on his bility, the defendants would be answerable farm, and another man, knowing of such in damages to the plaintiff for a malicious contract of employment, entices, hires, or procurement of the breach of contract by persuades the laborer to leave the service of its employees. The term “malicious,” used the first employer during the time for in this connection, is to be given a liberal which he was so employed, the law gives to meaning. The act is malicious when the the party injured a right of action to re- thing done is with the knowledge of the cover damages. Salter v. Howard, 43 Ga. plaintiff's rights, and with the intent to 601. From the reasoning of McCay, J., in interfere therewith. It is a wanton interBarron v. Collins, 49 Ga. 580, it would ap- ference with another's contractual rights. pear that he was inclined to the opinion Ineffective persuasion to induce another to that an action for the malicious breach of violate his contract would not, of itself, be contract was limited to cases of servants. actionable, but, if the persuasion be used The declaration in that case alleged that A, for the purpose of injuring the plaintiff, or having contracted with one Charles Barron benefiting the defendant at the expense of that he, the said Charles, should furnish the plaintiff, with a knowledge of the subhimself and his two daughters and one sistence of the contract, it becomes a maGeorge Barron to work as laborers on the licious act, and, if injury ensues from it, a plaintiff's land for the year 1872, the plain cause of action accrues to the injured party. tiff to furnish the land and mules, and the Bowen v. Hall, L. R. 6 Q. B. Div. 333. As said Charles to receive one third and plain- was said by Crompton, J., in Lumley v. tiff two thirds of the crop, and that the de- Gye, 2 El. & Bl. 216: “It must now be confendant, knowing the said contract had not sidered clear law that a person who wrong. been abandoned, but still existed, employed fully and maliciously, or, which is the same the said Charles, his two daughters, and the thing, with notice, interrupts the relation said George to work for him for the year subsisting between master and servant, by 1872. It was held on demurrer that no procuring the servant to depart from the good cause of action was set forth. In the master's service, . . is

responsible opinion it was said that the gist of the at law.” See Doremus v. Hennessy, 176 Ill. action was enticing away plaintiff's serv- 608, 43 L. R. A. 797, 802, 68 Am. St. Rep. ants; and that the contract between the 203, 52 N. E. 924, 54 N. E. 524. plaintiff and Charles Barron did not create 4. From the proof submitted it appeared the relation of master and servant, but that that means other than persuasion were emCharles Barron was a contractor, and not a ploved by the defendants to induce the servant. However, within the limits of a plaintiff's employees to quit work. They

threatened the various labor unions that, May C. WILSON, Impleaded, etc., Piff. in unless the union labor of the plaintiff was

Err., called out, they would no longer exclusively employ union men, but would run what is

EXCHANGE BANK. known as an "open shop.” This threat was

(..,... Ga. ......) being carried into execution when the plain

*1. In an action against the maker and tiff applied for the writ of injunction. The

indorser of a promissory note, joined plan of attack on the plaintiff was to force

in the same suit, the indorser may set off an the various labor unions to call out their individual claim against the plaintiff growing members from the plaintiff's shop, under

out of the transaction which gave rise to the

execution of the note. the threat that upon their refusal to do so

2. After a valid plea of set-off has been the defendants would run their respective

filed, the plaintiff is not entitled to dismiss businesses under what is known as an open his action so as to interfere with the rights shop; that is, they would employ their labor of the defendant, except upon sufficient cause

shown. without reference to their connection with the various unions. The several defendants

(March 23, 1905.) had the undoubted right to employ any character of labor they might prefer. If they desired to supplant the union labor E review orders striking out defendant's

to and substitute therefor nonunion labor, plea of set-off, and dismissing, without her such action would be strictly within their consent, an action brought to enforce paylegal right. But the record shows that ment of certain promissory notes. Repractically all the skilled labor in this versed. branch of business in the city of Atlanta be- The facts are stated in the opinion. longed to the various labor unions, which Mr. Frank A. Arnold for plaintiff in had an agreement with the defendants that error. the defendants would hire only union em- Messrs. Rosser & Brandon for defendployees, and that the unions would not per- ant in error. mit their members to work for any employer who was not a party to the agree- Candler, J., delivered the opinion of the ment. This agreement was incidental to court: the main purpose of the organization. It The Exchange Bank brought suit against was a part of the plan to force all employ- Frank Williams, as maker, and May (.

as indorser, on ing printers to become members of the Em- Wilson,

number of ploying Printers' Club. The defendants promissory notes. The petition alleged that were insisting on the observance of this the notes were made by Williams to the J. agreement by the labor unions, and, upon which name May C. Wilson

C. Wilson Coal & Lumber Company, under their refusal to live up to the agreement; time doing business, and were indorsed by

was at the they were threatened with the bête noire of unionism,--the open shop. An injunction

May C. Wilson. The defendants filed a ple:1 may be granted against the enforcement of in which they denied that at the time the

notes were executed May C. Wilson was an illegal agreement of dealers to injure the doing business under the name of the J. C. business of another person. Jackson v. Stan Wilson Coal & Lumber Company, and field, 137 Ind. 592, 23 L. R. A. 588, 36 N. E. averred that that company was a corpo315, 37 N. E. 14.

ration under the laws of Georgia. They A court of equity will interpose by in- also denied indebtedness on the notes, and junction to prevent the several members of averred that “plaintiff has received from dean illegal combination from enforcing an fendant, May C. Wilson, $874 on account of agreement to the hurt and injury of one en the transaction sued upon, and said plaingaged in a competitive business. Brown v. tiff is indebted to defendant, May C. WilJacobs' Pharmacy Co. 115 Ga. 429, 57 L. R. son, the difference, $174, which she pleads in A. 547, 90 Am. St. Rep. 126, 41 S. E. 553. recoupment, and asks judgment against

Under the facts in the record, the court plaintiff for said sum.” Subsequently Mrs. properly enjoined the defendants from Wilson offered an amendment to her plea, interfering with the plaintiff's business as

#Headnotes by CANDLER, J. a printer engaged in competitive trade, and from unlawfully influencing the labor Note.-As to the right of a surety jointly organization from obstructing its business. bound with his principal to offset against such

joint indebtedness his individual claim against Judgment affirmed.

the creditor, see, in this series, Clark v. Sulli. All the Justices concur.

van, 13 L. R. A. 233, and note.



which the court, on objections of counsel | this very fact of indivisibility lies the se for the plaintiff, disallowed. The court also, curity to the obligee of accepting a joint on oral motion, struck the plea of set-off, obligation. That, however, is not this case. and later passed another order, "without The maker and the indorser of a negotiable the knowledge or consent of defendant, May promissory note are severally, not jointly, C. Wilson,” permitting the plaintiff to dis- bound by the instrument. Their contracts miss the case at its cost. Mrs. Wilson ex- are essentially different. That of the maker cepts to the refusal of her amendment, the is to pay the note when due, according to order striking her plea, and the order allow the terms of the writing. That of the ining the plaintiff to dismiss.

dorser is that he will pay only on certain 1. As no reference is made in the brief well-defined conditions precedent. Owing of counsel for the plaintiff in error to the to the several nature of the contract, a suit refusal of the amendment offered by Mrs. against the maker and indorser in one Wilson, the assignment of error on this rul- action was not known to the law merchant; ing will be treated as having been aban- and it was necessary to obtain a judgment doned, and we will pass to the controlling against the maker before the liability of question in the case, viz., whether, in a suit the indorser was established. The suit on a promissory note, where both maker and against maker and indorser in one action is indorser are joined in the suit, the indorser entirely of statutory origin (14 Enc. Pl. & may set off an individual demand against Pr. p. 452, and authorities cited in note). the plaintiff's cause of action. This ques- and the Georgia statute on the subject was tion is not without considerable difficulty. not enacted until 1826. Beckwith v. CarleIn the case of Threlkeld v. Dobbins, 45 Ga. ton, 14 Ga. 693. And see generally on this 144, it was held broadly that "a debt due by subject, Vinson v. Platt, 21 Ga. 135; Lathe plaintiff to one of several defendants in mar v. Cottle, 27 Ga. 265; Daris v. Bank of a suit cannot be pleaded by the defendants Fulton, 31 Ga. 69; Ware v. City Bank, 59 as a set-off, unless there be some special | Ga. 844. The defense of set-off was 91 cause shown.” That case, however, was de- unknown to the common law, because “ti:e cided by only two judges, and hence is not primitive notion of an action did binding upon us as authority; but, aside admit the possibility of a defendant being from that consideration, an examination of an actor and interposing a clain against the facts upon which it was based will show the plaintiff to be tried in the one suit." that the headnote, from which the foregoing Pomeroy, Code Remedies, 3d ed. § 729: quotation was taken, is much broader than Waterman, Set-off, 2d ed. § 10. By the the actual question decided. It appeared statute of 2 Geo. II., chap. 27, § 13, it was that Threlkeld and another had executed to enacted that, "where there are mutual debts Dobbins their joint promissory note; that between the plaintiff and defendant, . Dobbins owed Threlkeld a sum of money for one debt may be set off against the other," cotton which he had sold for him, and for etc. The different states of this country which he had not accounted; and that Dob- have all passed statutes the practical efbins had agreed that this sum should be en. fect of which is the same as that of the Eng. tered as a credit on the joint note. It was lish statute, though varying somewhat in held that this agreement was "such special phraseology. In Georgia it is provided that claim" as could be set off against the plain-between the parties themselves any mutual tiff's demand on the note. The cases cited demands existing at the time of the comby counsel for the defendant in error as mencement of the suit may be set off ;” ani being in harmony with the decision in that "set-off must be between the same Threlkeld v. Dobbins are also cases where a parties, and in their own right."

right.” Civil joint demand was the subject of the suit, Code 1895, 88 3746, 3747. The exact meanand one of the defendants sought to set off ing to be given to the expressions “mutual an individual claim. With one exception, demands” and “same parties," as used in they were suits against partnerships, the the statute, is the important question now exception being a suit against joint makers to be decided. It seems to us nothing more of a promissory note. It seems to be well than reasonable to hold that in a case like settled in Georgia, as in most of the states, the present, where two or more defendants that in a suit against two or more persons are joined in an action to which they are on a joint obligation set-off is not available severally liable, and in which a separate to less than the entire number of defend judgment may be taken against them, a ants. The reason of this rule is plain. A cross-demand in favor of any one of the dejoint obligation is indivisible. Each one of fendants against the plaintiff would come the obligors is bound to the same extent within a fair construction of the requireand in the same manner as all the others. ment of mutuality; nor

the A separate judgment against less than the necessity, in such a case, of construing the entire number would be impossible; and in words "same parties” to mean "all the





parties.” We are aware that this view is flatly that the defense of set-off is not availin conflict with the English rule on the sub- able to less than the entire number of deject, and with the decisions of many of the fendants. See Lemon v. Stevenson, 36 Ili. courts of last resort of this country; but it 49; Ryan v. Barger, 16 Ill. 28; Woods v. is also in harmony with many American Harris, 5 Blackf. 585; Gordon v. Swift, 16 authorities of eminent respectability, Ind. 208; Warren v. Wells, 1 Met. 80;

In Pomeroy's Code Remedies, 3d ed. $ Brooks v. Stackpole, 168 Mass. 537, 47 N. 755, the author says: “The provision found E. 419; Jones v. Gilreath, 28 N. C. (6 Irad. in nearly all the Codes that the counter- L.) 338; Corbett v. Hughes, 75 Iowa, 282, claim must exist ‘in favor of a defendant 39 N. W. 500; Banks v. Pike, 15 Me. 268. and against a plaintiff between whom a In Trammell v. Harrell, 4 Ark. 602, the several judgment might be had in the supreme court of Arkansas, by a divided action,' implies that whenever the single de- bench, held: “A defendant, or defendants, fendant, or all the defendants jointly, may cannot set off a claim due to him or them recover against one or some of the plaintiffs, by only one or a part of several plaintiffs ; and not against all, or whenever one, nor can one defendant of several set o!1 a some, of the defendants, and not all, may claim due to him alone from the plaintiff' or recover against the single plaintiff, or all plaintiff's; and whether the claim sued on, the plaintiffs jointly, or whenever both of or that attempted to be set off, or both, are these possibilities are combined, a counter- joint, or joint and several, makes no differclaim may be interposed against the one or

ence.” Chief Justice Ringo, in a strong opinsome of the plaintiffs, and not against all, ion, dissented from the judgment rendered ; and by the one or some of the defendants, and so pertinent are the views expressed by and not by all. Such a severance in the re

him in the dissenting opinion to the point covery is possible when the right sought to now under discussion that we quote therefrom be maintained on the one side and the lia- as follows: "It is well understood that no setbility to be enforced on the other are not off was allowed by the common law; and originally joint.” After a full discussion of that the whole right of set-off in actions at numerous cases bearing on the subject, the law had its origin in certain statutes of author, in § 761, lays down the following England, the first of which gave it only in rules: “First, when the defendants in an respect to a single class of demands; but action are joint contractors, and are sued it has been considerably enlarged and exas such, no counterclaim can be made avail-tended by subsequent acts of Parliament so able which consists of a demand in favor of as to embrace generally all liquidated damone, or some, of them. Secondly, when the ages or demands upon which an action of defendants in an action are jointly and debt or indebitatus assumpsit would lie, vut severally liable, although sued jointly, a only where the demand to be set off is due counterclaim, consisting of a demand in in the same right from all of the plaintiffs favor of one, or some, of them, may, if to all of the defendants. And this I underotherwise without objection, be interposed. stand to be one of the most prominent and Thirdly, since it is possible, pursuant to ex. distinct features in all of the acts of Parliapress provisions of all the Codes, for per- ment upon the subject, and it is one which sons severally liable to be sued jointly appears to have been introduced into the under certain circumstances in a legal statutes of set-off of a majority of the states action,—that is, in an action brought to re- of the United States; and in such states cover common money judgment, - a there can be no doubt that a demand not counterclaim in favor of one or more of due from all of the plaintiffs to all of the such defendants may be pleaded · and defendants cannot be admitted as set-off, proved.” In Roberts v. Donovan, 70 Cal. because it is not within the provisions of 108, 9 Pac. 180, 11 Pac. 599, it was held law allowing such defense to be made. that one of two joint obligors could not

The first section of our statute of set off an individual claim against the set-off (Ark. Rev. Stat. chap. 139, p. 726), plaintiff's demand on the action ; but in the declares that, 'if two or more persons are opinion (p. 114 of 70 Cal., p. 182 of 9 Pac.) mutually indebted to each other, by judg. the following language was used: “The ments, bonds, bills, notes, bargains, action is brought upon the joint bond of all promises, or the like, and one of them comthe defendants. Were it a joint and several mence an action against the other, one debt bond, no difficulty could arise; for where may be set off against the other, although the cause of action is several, as well as such debts may be of a different nature. joint, a several judgment may be entered · · The language here quoted, it will without reference to the mere form of be perceived, does not in any way make the action.” In some of the states it is held ' right of set-off to depend upon the number



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