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giving its aid to a bad or a faithless man. The dirt upon his hands must be his bad conduct in the transaction complained of. All complainants in equity are human beings, full of faults and sin, and I doubt if there is one case in ten in which the complainant is not somewhat to blame. If the complainant does equity himself, or of fers to do it (except in those cases where the rule in pari delicto, etc., comes in), his hands are as clean as the court can require." Ansley v. Wilson, 50 Ga. 421. The plaintiff is not seeking to obtain any relief by virtue of his former connection with the club, and is not, therefore, in pari delicto with the defendants relatively to the cause of action which it brings against them. Its connection with the club ceased before filing the suit, and it has repudiated the club as an unholy alliance. Even in criminal law the locus pœnitentiæ is recognized. The aggressor may repent, and abandon his felonious enterprise, and place himself in a position where he may rightfully invoke the law of self-defense in a subsequent occurrence. Besides, an unlawful combination in restraint of trade is a wrong to the public, as well as to the injured individual. If a man confederates with a burglar to break and enter a house, but abandons the criminal project, his agreement to join in the burglary will not justify an infliction of an injury upon his person by the burglar, and deprive him of his right of self-defense, merely because of the prior agreement to do a criminal act and the abandonment of his unlawful intention.

Independently of the conspiracy, the petition states a case of malicious interference with the plaintiff's contract of employment with its employees. At common law the remedies for breach of contract were confined to the contracting parties, and limited to direct damages and consequential damages proximately resulting from the act of him who is sued. This general rule admitted of one exception, and that was the right of action against a stranger for wrongfully enticing away a servant in violation of his contract of service with his master. The exception is said to have been based on the ancient statute of laborers. The early English cases limited the action to the enticement of menial servants, but the later cases, beginning with Lumley v. Gye, 2 El. & Bl. 216, have extended the doctrine beyond menial servants; and by the modern interpretation of this doctrine by the English courts the rule is extended to a malicious interference with any contract. A brief reference to a few English cases will serve to present the evolution and extension of

the old common-law doctrine of malicious interference with a contract. Lumley v. Gye, 2 El. & Bl. 216, was a suit for the malicious procuring of an opera singer, who had agreed with the plaintiff to perform and sing at his theater, and nowhere else, for a certain time, to break her contract, and not perform or sing at the plaintiff's theater during the time for which she was engaged. It was there held that an action would lie for maliciously procuring a breach of contract to give exclusive personal service, provided the procurement was during the subsistence of the contract and produced damage; and that to sustain such an action it was not necessary that the employer and employee should stand in the strict relation of master and servant. The opinion was by a divided court. The majority of the judges were inclined to the opinion that an action would lie for the ma licious procurement of the breach of any contract, though not for personal services, if by the procurement damage was intended to result, and did result, to the plaintiff. This case was followed in Bowen v. Hall, L. R. 6 Q. B. Div. 333. In 1893 the same question was before the court of appeal of the Queen's bench division (Temperton v. Russell [1893] 1 Q. B. Div. 715), and the cases of Lumley v. Gye and Bowen v. Hall were examined and approved; and these cases were there said to rest upon the principle that to maliciously procure a person to break a contractual relation, which all are bound by law to respect, is actionable; and that a right of action for maliciously procuring a breach of contract is not confined to contracts of personal service. By many it was thought that the House of Lord's case of Allen v. Flood [1898] A. C. 1, conflicted with the doctrine announced in Temperton v. Russell, or at least materially curtailed its scope. But in the later case of Quinn v. Leathem [1901] A. C. 495, both cases-Temperton v. Russell and Allen v. Flood-were elaborately reviewed and analyzed; and, after stating the scope and effect of the latter case, it was ruled that "a combination of two or more, without justification or excuse, to injure a man in his trade, by inducing his customers or servants to break their contracts with him, or not to deal with him or continue in his employment, is, if it results in damage to him, actionable." The Supreme Court of the United States approvingly cited the English cases of Lumley v. Gye and Bowen v. Hall, and reached the conclusion that, if one maliciously interferes with a contract to the injury of the other, the party injured may maintain an action against the wrongdoer.

Angle v. Chicago, St. P. M. & O. R. Co. 151 U. S. 1, 38 L. ed. 55, 14 Sup. Ct. Rep. 240, Though this rule is not universal in all the courts of last resort of our sister states, it is believed to have been followed in most of them. In the carefully prepared opinion in Walker v. Cronin, 107 Mass. 555, the court decided that a manufacturer is entitled to maintain an action against a third person, who, with the unlawful purpose of preventing him from carrying on his business, wilfully induced many of his employees to leave his employment, whereby the manufacturer lost their services, and the profits and advantages which he would have derived therefrom. See also Moran v. Dunphy, 177 Mass. 485, 52 L. R. A. 115, 83 Am. St. Rep. 289, 59 N. E. 125. And the supreme court of North Carolina held in two cases (Haskins v. Royster, 70 N. C. 601, 16 Am. Rep. 780; Jones v. Stanly, 76 N. C. 355) that, if a person maliciously entices laborers or croppers to break their contract with their employer and desert his service, the employer may recover damages against such person.

In this state it has been held that when one man employs a laborer to work on his farm, and another man, knowing of such contract of employment, entices, hires, or persuades the laborer to leave the service of the first employer during the time for which he was so employed, the law gives to the party injured a right of action to recover damages. Salter v. Howard, 43 Ga. 601. From the reasoning of McCay, J., in Barron v. Collins, 49 Ga. 580, it would appear that he was inclined to the opinion that an action for the malicious breach of contract was limited to cases of servants. The declaration in that case alleged that A, having contracted with one Charles Barron that he, the said Charles, should furnish himself and his two daughters and one George Barron to work as laborers on the plaintiff's land for the year 1872, the plain tiff to furnish the land and mules, and the said Charles to receive one third and plaintiff two thirds of the crop, and that the defendant, knowing the said contract had not been abandoned, but still existed, employed the said Charles, his two daughters, and the said George to work for him for the year 1872. It was held on demurrer that no good cause of action was set forth. In the opinion it was said that the gist of the action was enticing away plaintiff's servants; and that the contract between the plaintiff and Charles Barron did not create the relation of master and servant, but that Charles Barron was a contractor, and not a servant. However, within the limits of a

very brief opinion, it was pointed out that the declaration was defective in many other particulars. It was defective in not setting forth the nature of the damages. It was said, also, that perhaps the contract, resting in parol, was not binding, as it was not to be performed within a year. Nor did it appear that Charles Barron was authorized to contract for the service of the others. Inasmuch as the petition was defective in other vital particulars, the judgment of the court was not confined to the question of the malicious procurement of the breach of the contract. Attention is also called to the fact that this case was decided in 1873. when the principle under discussion was in its evolutional stage. Speaking for myself, I believe the same reasons which support the principle that an action will lie for the malicious procurement of a breach of contract of personal service will cover every case where one person maliciously persuades and induces another to break any legal contract. In the case at bar the relation of master and servant did exist between the plaintiff and his employees, and, even applying the common-law rule of liability, the defendants would be answerable in damages to the plaintiff for a malicious. procurement of the breach of contract by its employees. The term "malicious," used in this connection, is to be given a liberal meaning. The act is malicious when the thing done is with the knowledge of the plaintiff's rights, and with the intent to interfere therewith. It is a wanton interference with another's contractual rights. Ineffective persuasion to induce another to violate his contract would not, of itself, be actionable, but, if the persuasion be used for the purpose of injuring the plaintiff, or benefiting the defendant at the expense of the plaintiff, with a knowledge of the subsistence of the contract, it becomes a malicious act, and, if injury ensues from it, a cause of action accrues to the injured party. Bowen v. Hall, L. R. 6 Q. B. Div. 333. As was said by Crompton, J., in Lumley v. Gye, 2 El. & Bl. 216: "It must now be considered clear law that a person who wrongfully and maliciously, or, which is the same thing, with notice, interrupts the relation subsisting between master and servant, by procuring the servant to depart from the

master's service, . . . is responsible

at law." See Doremus v. Hennessy, 176 Ill. 608, 43 L. R. A. 797, 802, 68 Am. St. Rep. 203, 52 N. E. 924, 54 N. E. 524.

4. From the proof submitted it appeared that means other than persuasion were employed by the defendants to induce the plaintiff's employees to quit work. They

threatened the various labor unions that, May C. WILSON, Impleaded, etc., Plff. in unless the union labor of the plaintiff was called out, they would no longer exclusively employ union men, but would run what is known as an "open shop." This threat was being carried into execution when the plaintiff applied for the writ of injunction. The plan of attack on the plaintiff was to force the various labor unions to call out their members from the plaintiff's shop, under the threat that upon their refusal to do so the defendants would run their respective businesses under what is known as an open shop; that is, they would employ their labor without reference to their connection with the various unions. The several defendants had the undoubted right to employ any character of labor they might prefer. If they desired to supplant the union labor and substitute therefor nonunion labor, such action would be strictly within their legal right. But the record shows that practically all the skilled labor in this branch of business in the city of Atlanta belonged to the various labor unions, which had an agreement with the defendants that the defendants would hire only union employees, and that the unions would not permit their members to work for any ployer who was not a party to the agreement. This agreement was incidental to the main purpose of the organization. It was a part of the plan to force all employing printers to become members of the EmThe defendants ploying Printers' Club. were insisting on the observance of this agreement by the labor unions, and, upon their refusal to live up to the agreement, they were threatened with the bête noire of unionism, the open shop. An injunction may be granted against the enforcement of an illegal agreement of dealers to injure the business of another person. Jackson v. Stanfield, 137 Ind. 592, 23 L. R. A. 588, 36 N. E. 345, 37 N. E. 14.

em

Err.,
v.

EXCHANGE BANK.

(...... Ga.

*1. In an action against the maker and indorser of a promissory note, joined in the same suit, the indorser may set off an individual claim against the plaintiff growing out of the transaction which gave rise to the execution of the note.

2. After a valid plea of set-off has been filed, the plaintiff is not entitled to dismiss his action so as to interfere with the rights of the defendant, except upon sufficient cause shown.

A court of equity will interpose by injunction to prevent the several members of an illegal combination from enforcing an agreement to the hurt and injury of one engaged in a competitive business. Brown v. Jacobs' Pharmacy Co. 115 Ga. 429, 57 L. R. A. 547, 90 Am. St. Rep. 126, 41 S. E. 553.

Under the facts in the record, the court from properly enjoined the defendants interfering with the plaintiff's business as a printer engaged in competitive trade, and from unlawfully influencing the labor organization from obstructing its business. Judgment affirmed.

All the Justices concur.

(March 25, 1905.)

RROR to the Court of Atlanta to review orders striking out defendant's plea of set-off, and dismissing, without her consent, an action brought to enforce payment of certain promissory notes. versed.

Re

The facts are stated in the opinion. Mr. Frank A. Arnold for plaintiff in error.

Messrs. Rosser & Brandon for defendant in error.

Candler, J., delivered the opinion of the court:

a

The Exchange Bank brought suit against Frank Williams, as maker, and May C. Wilson, as indorser, on number of promissory notes. The petition alleged that the notes were made by Williams to the J. C. Wilson Coal & Lumber Company, under which name May C. Wilson was at the time doing business, and were indorsed by May C. Wilson. The defendants filed a plea in which they denied that at the time the notes were executed May C. Wilson was doing business under the name of the J. C. Wilson Coal & Lumber Company, and averred that that company was a corporation under the laws of Georgia, They also denied indebtedness on the notes, and averred that "plaintiff has received from defendant, May C. Wilson, $874 on account of the transaction sued upon, and said plaintiff is indebted to defendant, May C. Wilson, the difference, $474, which she pleads in recoupment, and asks judgment against plaintiff for said sum." Subsequently Mrs. Wilson offered an amendment to her plea,

*Headnotes by CANDLER, J.

NOTE. AS to the right of a surety jointly bound with his principal to offset against such joint indebtedness his individual claim against the creditor, see, in this series, Clark v. Sullivan, 13 L. R. A. 233, and note.

which the court, on objections of counsel this very fact of indivisibility lies the sefor 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. ilson," 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 well-defined conditions precedent. Owing to the several nature of the contract, a suit against the maker and indorser in one action was not known to the law merchant; and it was necessary to obtain a judgment against the maker before the liability of the indorser was established. The suit against maker and indorser in one action is entirely of statutory origin (14 Enc. Pl. & Pr. p. 452, and authorities cited in note), and the Georgia statute on the subject was not enacted until 1826. Beckwith v. Carleton, 14 Ga. 693. And see generally on this subject, Vinson v. Platt, 21 Ga. 135; Lamar v. Cottle, 27 Ga. 265; Davis v. Bank of Fulton, 31 Ga. 69; Ware v. City Bank, 59 Ga. 844. The defense of set-off was also unknown to the common law, because "the primitive notion of an action did not admit the possibility of a defendant being an actor and interposing a claim against the plaintiff to be tried in the one suit." Pomeroy, Code Remedies, 3d ed. § 729: Waterman, Set-off, 2d ed. § 10. By the statute of 2 Geo. II., chap. 27, § 13, it was enacted that, "where there are mutual debts between the plaintiff and defendant, one debt may be set off against the other,” etc. The different states of this country have all passed statutes the practical effect of which is the same as that of the English statute, though varying somewhat in phraseology. In Georgia it is provided that "between the parties themselves any mutual demands existing at the time of the commencement of the suit may be set off;" and that "set-off must be between the same parties, and in their own right." Civil Code 1895, §§ 3746, 3747. The exact meaning to be given to the expressions “mutual demands" and "same parties," as used in the statute, is the important question now to be decided. It seems to us nothing more than reasonable to hold that in a case like the present, where two or more defendants are joined in an action to which they are severally liable, and in which a separate judgment may be taken against them, a cross-demand in favor of any one of the defendants against the plaintiff would come within a fair construction of the requirement of mutuality; nor can we see the necessity, in such a case, of construing the words "same parties" to mean "all the

1. As no reference is made in the brief of counsel for the plaintiff in error to the refusal of the amendment offered by Mrs. Wilson, the assignment of error on this ruling will be treated as having been abandoned, and we will pass to the controlling question in the case, viz., whether, in a suit on a promissory note, where both maker and indorser are joined in the suit, the indorser may set off an individual demand against the plaintiff's cause of action. This question is not without considerable difficulty. In the case of Threlkeld v. Dobbins, 45 Ga. 144, it was held broadly that "a debt due by the plaintiff to one of several defendants in a suit cannot be pleaded by the defendants as a set-off, unless there be some special cause shown." That case, however, was decided by only two judges, and hence is not binding upon us as authority; but, aside from that consideration, an examination of the facts upon which it was based will show that the headnote, from which the foregoing quotation was taken, is much broader than the actual question decided. It appeared that Threlkeld and another had executed to Dobbins their joint promissory note; that Dobbins owed Threlkeld a sum of money for cotton which he had sold for him, and for which he had not accounted; and that Dobbins had agreed that this sum should be entered as a credit on the joint note. It was held that this agreement was "such special claim" as could be set off against the plaintiff's demand on the note. The cases cited by counsel for the defendant in error as being in harmony with the decision in Threlkeld v. Dobbins are also cases where a joint demand was the subject of the suit, and one of the defendants sought to set off an individual claim. With one exception, they were suits against partnerships, the exception being a suit against joint makers of a promissory note. It seems to be well settled in Georgia, as in most of the states, that in a suit against two or more persons on a joint obligation set-off is not available to less than the entire number of defendants. The reason of this rule is plain. A joint obligation is indivisible. Each one of the obligors is bound to the same extent and in the same manner as all the others. A separate judgment against less than the entire number would be impossible; and in

parties." We are aware that this view is in conflict with the English rule on the subject, and with the decisions of many of the courts of last resort of this country; but it is also in harmony with many American authorities of eminent respectability.

In Pomeroy's Code Remedies, 3d ed. § 755, the author says: "The provision found in nearly all the Codes that the counterclaim must exist in favor of a defendant and against a plaintiff between whom a several judgment might be had in the action,' implies that whenever the single defendant, or all the defendants jointly, may recover against one or some of the plaintiffs, and not against all, or whenever one, or some, of the defendants, and not all, may recover against the single plaintiff, or all the plaintiffs jointly, or whenever both of these possibilities are combined, a counterclaim may be interposed against the one or some of the plaintiffs, and not against all, and by the one or some of the defendants, and not by all. Such a severance in the recovery is possible when the right sought to be maintained on the one side and the liability to be enforced on the other are not originally joint." After a full discussion of numerous cases bearing on the subject, the author, in § 761, lays down the following rules: "First, when the defendants in an action are joint contractors, and are sued as such, no counterclaim can be made available which consists of a demand in favor of one, or some, of them. Secondly, when the defendants in an action are jointly and severally liable, although sued jointly, a counterclaim, consisting of a demand in favor of one, or some, of them, may, if otherwise without objection, be interposed. Thirdly, since it is possible, pursuant to express provisions of all the Codes, for persons severally liable to be sued jointly under certain circumstances in a legal action, that is, in an action brought to recover a common money judgment, a counterclaim in favor of one or more of such defendants may be pleaded and proved." In Roberts v. Donovan, 70 Cal. 108, 9 Pac. 180, 11 Pac. 599, it was held that one of two joint obligors could not set off an individual claim against the plaintiff's demand on the action; but in the opinion (p. 114 of 70 Cal., p. 182 of 9 Pac.) the following language was used: "The action is brought upon the joint bond of all the defendants. Were it a joint and several bond, no difficulty could arise; for where the cause of action is several, as well as joint, a several judgment may be entered without reference to the mere form of action." In some of the states it is held

flatly that the defense of set-off is not available to less than the entire number of defendants. See Lemon v. Stevenson, 36 Ill. 49; Ryan v. Barger, 16 Ill. 28; Woods v. Harris, 5 Blackf. 585; Gordon v. Swift, 16 Ind. 208; Warren v. Wells, 1 Met. 80; Brooks v. Stackpole, 168 Mass. 537, 47 N. E. 419; Jones v. Gilreath, 28 N. C. (8 Ired. L.) 338; Corbett v. Hughes, 75 Iowa, 282, 39 N. W. 500; Banks v. Pike, 15 Me. 268. In Trammell v. Harrell, 4 Ark. 602, the supreme court of Arkansas, by a divided bench, held: "A defendant, or defendants, cannot set off a claim due to him or them by only one or a part of several plaintiffs; nor can one defendant of several set off a claim due to him alone from the plaintiff or plaintiffs; and whether the claim sued on, or that attempted to be set off, or both, are joint, or joint and several, makes no difference." Chief Justice Ringo, in a strong opinion, dissented from the judgment rendered; and so pertinent are the views expressed by him in the dissenting opinion to the point now under discussion that we quote therefrom as follows: "It is well understood that no setoff was allowed by the common law; and that the whole right of set-off in actions at law had its origin in certain statutes of England, the first of which gave it only in respect to a single class of demands; but it has been considerably enlarged and extended by subsequent acts of Parliament so as to embrace generally all liquidated damages or demands upon which an action of debt or indebitatus assumpsit would lie, but only where the demand to be set off is due in the same right from all of the plaintiffs to all of the defendants. And this I understand to be one of the most prominent and distinct features in all of the acts of Parliament upon the subject, and it is one which appears to have been introduced into the statutes of set-off of a majority of the states of the United States; and in such states there can be no doubt that a demand not due from all of the plaintiffs to all of the defendants cannot be admitted as set-off, because it is not within the provisions of law allowing such defense to be made. The first section of our statute of set-off (Ark. Rev. Stat. chap. 139, p. 726), declares that, 'if two or more persons are mutually indebted to each other, by judg ments, bonds, bills, notes, bargains, promises, or the like, and one of them commence an action against the other, one debt may be set off against the other, although such debts may be of a different nature. The language here quoted, it will be perceived, does not in any way make the right of set-off to depend upon the number

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