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filed. From the cases there cited we feel constrained to hold that it was a breach of the contract for either Yarrington or Harwood to again engage in the business in question in the designated territory. In the case of Welsh v. Morris, 81 Tex. 159, 16 S. W. 744, a partnership known as Welsh Brothers sold out a business as undertakers to the plaintiff Morris and bound themselves “not to start the undertaking business in Denison City, Texas, so long as said S. B. Morris is in the business.” Subsequent to the execution of the contract one of the partners only engaged in the prohibited business, and it was contended that this was no breach of the stipulation. It was held, however, that the action of the one was a breach of the contract. The contract was signed “Welsh Brothers”; and counsel for defendants in error frankly concede that unless this case can be distinguished by the fact, that the contract of Yarrington and Harwood is signed by each of them in their individual names only, it is conclusive of the question against them. We do not think the cases can be distinguished. The contract of Yarrington and Harwood, though signed by them individually, is as anuch a contract as partners as if it had been signed in the partnership name. The decision in Welsh v. Morris, 81 Tex. 159, 16 S. W. 744, is in accordance, as we think, with the weight of authority. See opinion of Alvey, chief justice, in Love v. Stidham, 18 App. D. C. 306, 53 L. R. A. 397, and cases there cited. Contra: Streichen v. Fehleisen, 112 Iowa, 612, 84 N. W. 715.

The case then made by the petition is that the defendants, other than Harwood, conspired to induce and did induce the latter to break his contract to the damage of the plaintiff. The important question is, Does this show a cause of action ? The point has never been decided in this court, and the authorities upon it elsewhere are in conflict. We think, however, the great weight of authority is in favor of an affirmative answer to the question.

We will first review briefly the cases in the English courts in which the point has come up for consideration.

The first is the leading case of Lumley v. Gye, 2 El. & B. 216, which was decided in 1853. In that case the plaintiff, the lessee of a theater, sued the defendant, alleging that a certain singer had been engaged by the plaintiff to sing at his theater and none other, and that while she was under such contract the defendant maliciously induced and enticed her not to perform for him as she had agreed to do. Upon demurrer to the declaration it was held, by three of the judges, that it

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showed a good cause of action. Justice Coleridge, one of the four judges who sat in the case, dissented. Practically the same question came before the court in the case of Bowen v. Hall, L. R. 6 Q. B. Div. 333. It was again held that an action would lie for inducing one under a contract of service to another to leave the service. Lord Coleridge, then the chief justice of the common pleas, dissented from the opinion of the majority.

449 Again, in 1893, the case of Temperton v. Russell (1893), L. R. 1 Q. B. Div. 715, came up for decision. There the plaintiff was a contractor and builder and had made contracts with third persons to supply him with material to be used in his business. The defendants were a committee of certain trades unions; and for the reason that plaintiff would not comply with certain rules laid down by the unions, they induced those who had contracted to deliver him material to break their contracts, and also conspired to prevent others from entering into contracts with him. It was held that they were liable both for inducing a breach of the existing contracts and also for conspiring to prevent others from entering into contracts with the plaintiff.

A similar case came before the house of lords in 1897: Allen v. Flood (1898). L. R. App. Cas. 1. In that case the plaintiffs were employed by the job at work upon a ship, but were subject to be discharged at the will of their employer. Allen, the defendant, representing a boilermakers' society, called upon the agents of their employer, and stated to them, that, unless the plaintiffs were discharged, the members of the boiler-makers society, about forty in number, then at work on the ship, would he "called out” or “knock off" work on that day. Thereupon their employer discharged the plaintiffs; and they brought suit against the defendant, alleging in effect that he had unlawfully and maliciously caused their discharge. It was held by the court-four of the nine law-lords dissenting--that, since the employer had a right to discharge the plaintiffs and since the discharge was lawful, the defendant was not liable for having procured it, although as found by the jury he acted from a malicious motive. In the numerous opinions which were given in the case, the previous cases of Lumley v. Gye, 2 El. & B. 216, and Bowen v. Hall, L. R. 6 Q. B. Div. 333, were discussed. After that decision it became a question, whether their authority had not been shaken, if not overturned thereby. But in 1901 the important case of Quinn v. Leathem, [1901] App. Cas. 495, arose, and it was there held that

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"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 contraots with him or not to deal with him or continue in his employment is, if it results in damage to him, actionable." All the judges concurred in the judgment and the effect of the decision is to distinguish Allen v. Flood, and to hold the cases of Lumley v. Gye, 2 El. & B. 216, Bowen v. Hall, L. R. 6 Q. B. Div. 333, and Temperton v. Russel (1893), L. R. 1 Q. B. Div. 715, were correctly decided.

In Lumley v. Gye, 2 El. & B. 216, the contract was one for personal services, and the insistence of Mr. Justice Coleridge was that it was not actionable to induce the breach of such a contract except where it created the relation of master and servant in the technical and restricted sense of those terms. The majority, however, held that the rule applied to any contract for service. The decision therefore goes no further than to hold that a cause of action lies for procuring the breach of any such contract. It may be doubted whether the contract the breach of which was induced in Bowen v. Hall, L. R. 6 Q. B. Div. 333, should be classed as a contract for service. However that may be, the contract in Temperton v. Russell (1893), L. R. 1 Q. B. Div. 715, was for the delivery of material, and it does not come under that class.

It seems to us, therefore, that the law is now settled in England that it is an actionable wrong knowingly to induce one to break his contract with another to the damage of the latter, and that it is also wrongful and actionable for two or more to accomplish such end by conspiring with cach other.

Numerous decisions affirming the same rule may be found in the courts of this country. We will briefly refer to some of the more prominent cases.

In Angle v. Chicago etc. Ry. Co., 151 U. S. 1, 14 Sup. Ct. Rep. 240, the contract under consideration was for the construction of a railroad; and it was held that, "If one maliciously interferes in a contract between two parties, and induces one of them to break that contract to the injury of the other, the party injured can maintain an action against the wrongdoer." The opinion of Mr. Justice Brewer reviews Lumley v. Gye, 2 El. & B. 216, and other English cases which had been decided at that time, and was concurred in by all the judges save one, who dissented upon grounds not in conflict with the decision upon that point.

The case of Walker v. Cronin, 107 Mass. 555, holds that an action lies against one who procures the violation of his con

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tract of service by the servant, and that the rule is not confined to contracts for menial service. It was argued by the dissenting judge in Lumley v. Gye, 2 El. & B. 216, that the rule applied only in case of servants in the strict sense of that term, and that the action in such a case was given by a statute of 23 Edward III, and was "limited by it.” Since the Massachusetts court holds that the action is not confined to contracts such as are referred to in that statute, and since we see no sufficient reason for making a distinction in such a case between contracts of service and other contracts, it seems to us that that court would hold that it would be actionable knowingly to procure the violation of any contract to the damage of one of the contracting parties.

In Jones v. Stanly, 76 N. C. 355, it is distinctly held that the rule applies to any contract.

On the other hand, it is decided by the supreme court of California that "maliciously inducing another to break a contract with a third person, will not create a liability to the latter, when it is done without threats, violence, falsehood, deception or benefit to the person inducing the breach”: Boyson v. Thorn, 99 Cal. 578, 33 l'ac. 152. The same principle was applied in Bourlier v. Macauley, 91 Ky. 135, 34 Am. St. Rep. 171, 15 S. W. 60. That was a case strikingly like Lumley v. Gye, 2 El. & B. 216. The plaintiffs had entered into a contract with the manager of the distinguished actress Mary Anderson to perform on certain nights at their theater, and afterward the defendant procured a breach of the contract with plaintiffs and procured the actress to appear at his, a rival house. It was held that these facts constituted no cause of action.

481 There are many other cases of a somewhat similar nature, but in most of them there was some element of fraud, threats, intimidation or conspiracy, and for that reason they are probably not direct authority upon the question before us.

We are of opinion that the rule that, where one knowingly induces another to break his contract with a third person, such third person has a right of action against the one so causing the breach for any damages resulting to him by such breach, is supported by a decided preponderance of authority and by the better principle. The principle is well stated by Lord Justice Lopes in his opinion in the case of Temperton v. Russell (1893), L. R. 1 Q. B. Div. 715, in the following extract: “The case which I think must govern our decision as to the first head of claim is Bowen v. Hall, L. R. 6 Q. B. Div. 333, which I understand to lay down the broad principle that a person who in

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duces a party to a contract to break it, intending thereby to injure another person or to get a benefit for himself, commits an actionable wrong. That appears to me to be the effect of the decision in that case which was decided in 1881, appears to have been since questioned. I presume that the principle is this, viz., that the contract confers certain rights on the person with whom it is made, and not only binds the parties to it by the obligation entered into, but also imposes on all the world the duty of respecting that contractual obligation."

It seems to us that where a party has entered into a contract with another to do or not to do a particular act or acts, he has as clear a right to its performance as he has to his property either real or personal; and that knowingly to induce the other party to violate it is as distinct a wrong as it is to injure or destroy his property. It is not a sufficient answer to say that he has a remedy against the party who has broken the contract. In the first place such remedy is ineffectual unless he who has made the breach has property or credits which may be applied by process of law to the satisfaction of a judgment that may be obtained against him. In the second, it sometimes occurs that, in case of joint tort-feasors, the liability of the one may be secondary to that of the other, and that, in the event of a recovery against one, he may have a claim for indemnity against the party jointly liable. For example, a master may be sued for the wrong of his servant while acting in performance of the master's business and within the scope of his employment, although the wrongful act may have been done, not only without any participation on part of the master, but even against his express orders.

We understand the rule in such a case to be that though either or both may be held liable to the injured party, as between the master and servant the latter is primarily responsible.

We have said that the point has never been decided in this court. But in Delz v. Winfrey, 80 Tex. 400, 26 Am. St. Rep. 755, 16 S. W. 111, the plaintiff, a butcher, alleged in his petition that the defendants, a firm dealing in livestock, had not only refused to sell to him, but had combined with other such dealers and had induced them also to refuse to deal with him. It was held that the defendants had the absolute right to deal or not with the plaintiff 452 as they saw fit, but that it was an actionable wrong to induce others to do so. Clearly the substance of the wrong in that case was the inducement of third parties not to deal with plaintiff, which was a mere obstruction of his right to buy from dealers without officious interference on

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