But to a rule which would permit recovery in every case for procuring a breach of contract, there must necessarily be some exceptions "in the nature of privilege for disinterested advice honestly given on a proper occasion." 144 For example, in the language of Stirling, L. J.,145 “a father who discovered that a child of his had entered into an engagement to marry a person of immoral character would not only be justified in interfering to prevent that contract from being carried into effect, but would greatly fail in his duty to his child if he did not." 140 But these exceptions must necessarily be few.

Whatever divergence there may be when C. has merely made use of his powers of persuasion or other means not improper in themselves, the principle is universally admitted that A. may recover where resort has been had to methods inherently unlawful,147 such as defamatory statements,148 fraud 149 or threats and intimidations.150

144 Pollock on Torts (7th Ed.) p. 322.

It

145 Glamorgan Coal Co. v. South Wales Miners' Federation (1903) 2 K. B. 545, 577.

146 Cf. Legris v. Marcotte, 129 Ill. App. 67; Leonard v. Whetstone, 34 Ind. App. 383, 68 N. E. 197, 107 Am. St. Rep. 252.

147 BOYSON v. THORN, 98 Cal. 578, 33 Pac. 492, 21 L. R. A. 233, Chapin Cas. Torts, 256; Gore v. Condon, 87 Md. 368, 39 Atl. 1042, 40 L. R. A. 382, 67 Am. St. Rep. 352; Angle v. Chicago, St. P., M. & O. Ry. Co., 151 U. S. 1, 14 Sup. Ct. 240, 38 L. Ed. 55.

148 See Kock v. Burgess (1914) 167 Iowa, 707, 149 N. W. 858; McClure v. McClintock, 150 Ky. 265, 150 N. W. 332, 42 L. R. A. (N. S.) 388; Angle v. Chicago, St. P., M. & O. Ry. Co., 151 U. S. 1, 14 Sup. Ct. 240, 38 L. Ed. 55.

149 Morgan v. Andrews, 107 Mich. 33, 64 N. W. 869; Benton v. Pratt, 2 Wend. (N. Y.) 385, 20 Am. Dec. 623; American Law Book Co. v. Edward Thompson Co., 41 Misc. Rep. 396, 84 N. Y. Supp. 225; National Phonograph Co. v. Edison Bell Consol. Phonograph Co. (1908) 1 Ch. 335, 77 L. J. Ch. 218, 98 L. T. Rep. N. S. 291, 24 T. L. R. 201; Green v. Button, 2 C. M. & R. 707, 1 Gale, 349, 5 L. J. Exch. 81, Tyrw. & G. 118. S. had contracted to sell to plaintiffs a quantity of cheese. Defendant, by means of a forged telegram caused S. to believe that plaintiffs did not desire to purchase, whereupon S. sold the cheese to defendant. Defendant liable. Rice v. Manley, 66 N. Y. 82, 23 Am. Rep. 30. Cf. Morehouse v. Terrill, 111 Ill. App. 460. 150 Doremus v. Hennessy, 176 Ill. 608, 52 N. E. 924, 54 N. E. 524, 68 Am. St. Rep. 203; Day v. Hunnicutt (Tex. Civ. App. 1913) 160

seems preferable to say that the strike or boycott may not here be employed.151

The question whether the contract must have been enforceable at law arises as in cases where the interference was with contracts of employment. Here also the better view would appear to be that, irrespective of its binding effect, it is sufficient that the other party would have performed had there been no interference.152 But the courts

are not in accord.15

S. W. 134. Cf. Chambers & Marshall v. Baldwin, 91 Ky. 121, 15 S. W. 57, 11 L. R. A. 545, 34 Am. St. Rep. 165.

151 Aberthaw Const. Co. v. Cameron, 194 Mass. 208, 80 N. E. 478, 120 Am. St. Rep. 542; BOOTH & BRO. v. BURGESS, 72 N. J. Eq. 181, 65 Atl. 226, Chapin Cas. Torts, 244; Beattie v. Callanan, 82 App. Div. 7, 81 N. Y. Supp. 413; Schlang v. Ladies' Waist Makers' Union, 67 Misc. Rep. 221, 124 N. Y. Supp. 289; Thomas v. Cincinnati, N. O. & T. P. Ry. Co. (C. C.) 62 Fed. 803.

152 Thus it is no bar to recovery that the contract was oral in violation of the statute of frauds. Cumberland Glass Mfg. Co. v. De Witt, 120 Md. 381, 87 Atl. 927, Ann. Cas. 1915A, 702; Rice v. Manley, 66 N. Y. 82, 23 Am. Rep. 30; Benton v. Pratt, 2 Wend. (N. Y.) 385, 20 Am. Dec. 623. Cf. Jackson v. Stanfield, 137 Ind. 592, 36 N. E. 345, 37 N. E. 14, 23 L. R. A. 588. Contra, Davidson v. Oakes (1910) 60 Tex. Civ. App. 269, 128 S. W. 944. See supra, p. 446.

153 That the contract must be one which the party was obligated to perform, see Roberts v. Clark (Tex. Civ. App. 1907) 103 S. W. 417; McGuire v. Gerstley, 204 U. S. 489, 27 Sup. Ct. 332, 51 L. Ed. 581, affirming 26 App. Cas. D. C. 193 (partnership not alleged to be for definite term).

CHAPTER XVII

INTERFERENCE WITH DOMESTIC RELATIONS

95. Injuries to the Husband.

96. Injuries to the Wife.

97. Injuries to the Parent.

98. Injuries to the Master.

INJURIES TO THE HUSBAND

1

95. The husband has "the right to the conjugal fellowship of the wife, to her company, co-operation, and aid in every conjugal relation." This right is termed "consortium." For an unlawful interference therewith the law gives to him a cause of action.

"Injuries that may be offered to a person considered as a husband," says Blackstone, "are principally three: Abduction, or taking away a man's wife; adultery, or criminal conversation with her; and beating or otherwise abusing her." Manifestly these are not the sole methods of interference with conjugal fellowship. For instance, the wife's affections may have been alienated, she may have been persuaded to refuse marital intercourse, or induced to consent to sexual intercourse with another, though there was no coition."

4

1 Bigaouette v. Paulet, 134 Mass. 123, 124, 45 Am. Rep. 307.

2 Comm. book 3, p. 139.

3 See infra, p. 462.

4 Plourd v. Jarvis, 99 Me. 161, 58 Atl. 774.

5 Roberts v. Jacobs (S. D. 1916) 156 N. W. 589. Here it was said: "We refuse to subscribe to any rule of law which would recognize as an actionable wrong the consummated act of coition, but would leave to the wronged party no right of recovery for the wrong done him, where by fortunate chance he appeared on the scene of action a moment before the wrongdoer had consummated his villainous purpose and thus prevented such consummation. Surely, while

the wrong done the husband may differ in degree from the wrong intended, it did not differ in kind, and we apprehend that, to the

Abduction, Harboring or Enticement

It is said that the old law was so strict “that if one's wife missed her way upon the road, it was not lawful for another man to take her into his house, unless she was benighted and in danger of being lost or drowned, but a stranger might carry her behind him on horseback to market to a justice of the peace for a warrant against her husband or to the spiritual court to sue for a divorce." But a doctrine so barbarous can have no place in the law of to-day. Though harboring the wife may constitute an injury to the husband, there can be no liability where the wife left her husband for just cause. Indeed, the existence of just cause is not essential, where the wife "is received from principles of humanity." A fortiori, will good faith protect the wife's parent. "A father's house is always open to his children, and whether they be married or unmarried, it is still to them a refuge from evil and a consolation in distress. Natural affection establishes and consecrates this asylum." 10

mind of any right-thinking man or woman, the difference in degree would scarcely be perceptible. * Is it possible that the conduct alleged would not tend to destroy 'the comfort of the married life' of respondent, if he had any proper sense of shame and decency? * Appellant contends that, inasmuch as there was no evidence tending to show that the wife's affection for her husband was in any manner alienated, there was nothing warranting submitting this second alleged cause of action. While loss of affection might increase the damage, yet the facts testified to would constitute an injury forming the basis of an action for damages, even though prior thereto there had existed no affection between respondent and his wife."

Bl. Comm. book 3, p. 139.

7 See BOLAND v. STANLEY, 88 Ark. 562, 115 S. W. 163, 129 Am. St. Rep. 114, Chapin Cas. Torts, 263; Barnes v. Allen, 1 Abb. Dec. (N. Y.) 111, 1 Keyes, 390; Powell v. Benthall, 136 N. C. 145, 48 S. E. 598.

8 Modisett v. McPike, 74 Mo. 636; Gilchrist v. Bale, 8 Watts (Pa.) 355, 34 Am. Dec. 469. Cf. Corrick v. Dunham (1910) 147 Iowa, 320, 126 N. W. 150; Johnson v. Allen, 100 N. C. 131, 5 S. E. 666.

Philp v. Squire, Peake N. P. 82. Cf. Barnes v. Allen, 1 Abb. Dec. (N. Y.) 111, 1 Keyes, 190; Powell v. Benthall, 136 N. C. 145, 48 S. E. 598.

10 Hutcheson v. Peck, 5 Johns. (N. Y.) 196, 209, per Kent, C. J. In accord, BOLAND v. STANLEY, 88 Ark. 562, 115 S. W. 163, 129 Am.

The husband has likewise a cause of action against one who influences or advises the wife improperly to depart or live separate,11 or who assists in her departure.12 But here, likewise, one cannot be held accountable where the advice was honestly given,18 or the assistance rendered in good faith,1 especially if he be a parent,15 or near relative.1o Adultery

The husband may bring his action for criminal conversation,17 whether the sexual intercourse was with 18 or without 10 the wife's consent. It matters not that the wife was equally guilty. "It is but the old cowardly excuse set up by the first man, "The woman gave me of the tree and I did eat.' It did not save from the penalty the first defendant, and cannot under the law save this one." 20 Recovery,

St. Rep. 114, Chapin Cas. Torts, 263. Cf. Corrick v. Dunham (1910) 147 Iowa, 320, 126 N. W. 150.

11 BOLAND v. STANLEY, 88 Ark. 562, 115 S. W. 163, 129 Am. St. Rep. 114, Chapin Cas. Torts, 263; Multer v. Knibbs, 193 Mass. 556, 79 N. E. 762, 9 L. R. A. (N. S.) 322, 9 Ann. Cas. 958; Allen v. Forsythe, 160 Mo. App. 262, 142 S. W. 820; Barbee v. Armstead, 32 N. C. 530, 51 Am. Dec. 404; Holtz v. Dick, 42 Ohio St. 23, 51 Am. Rep. 791; Jones v. Monson, 137 Wis. 478, 119 N. W. 179, 129 Am. St. Rep. 1082.

12 Higham v. Vanosdol, 101 Ind. 160.

13 Tasker v. Stanley, 153 Mass. 148, 26 N. E. 417, 10 L. R. A. 468. 14 Barnes v. Allen, 1 Abb. Dec. (N. Y.) 111, 1 Keyes, 390.

15 Ray v. Parsons (1915) 183 Ind. 344, 109 N. E. 202; Pooley v. Dutton (1914) 165 Iowa, 745, 147 N. W. 154; Hostetter v. Green, 150 Ky. 551, 150 S. W. 652; Oakman v. Belden, 94 Me. 280, 47 Atl. 553, 80 Am. St. Rep. 396; Hutcheson v. Peck, 5 Johns. (N. Y.) 196; Beisel v. Gerlach, 221 Pa. 232, 70 Atl. 721, 18 L. R. A. (N. S.) 516.

16 Baird v. Carle, 157 Wis. 565, 147 N. W. 834 (brother).

17 In England by 20 & 21 Vict. § 59, actions for criminal conversation are abolished, but by sections 28 and 33 the husband, in a proceeding for dissolution or separation, may recover damages against the adulterer.

18 Bedan v. Turney, 99 Cal. 649, 34 Pac. 442; Yundt v. Hartrunft, 41 Ill. 9; Moore v. Hammons, 119 Ind. 510, 21 N. E. 1111; Powell v. Strickland, 163 N. C. 393, 79 S. E. 872, Ann. Cas. 1915B, 709.

19 Bigaouette v. Paulet, 134 Mass. 123, 45 Am. Rep. 307; Egbert v. Greenwalt, 44 Mich. 245, 6 N. W. 654, 38 Am. Rep. 260; Jacobsen v. Siddal, 12 Or. 280, 7 Pac. 108, 53 Am. Rep. 360.

20 Sieber v. Pettit, 200 Pa. 58, 69, 49 Atl. 763, per Dean, J.