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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 contracts 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 450 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 each 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

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, 98 Cal. 578, 33 Fac. 492. 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.

451 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

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, and never 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 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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part of others. If it be actionable for one to intermeddle in another's affairs and thereby prevent him from making contracts, to the damage of his business, for a stronger reason it is actionable to induce the breach of a contract already made.

Our conclusion upon this branch of the case is that the court erred in sustaining the demurrer to the petition. Just here we will add, however, that it is not quite clear to us whether the allegations in the petition should be construed as charging defendant Yarrington as being a party to the agreement to induce Harwood to break his contract. But this is unimportant, since, as we have seen, he was responsible for Harwood's engaging again in the milling agency business, whether he induced him to do so or not.

We are also of the opinion that the court erred in instructing a verdict for the defendant Harwood. The charge is as follows: "In this case there is no evidence tending to show what part of the decrease in the business of Raymond & Brother below that done by Harwood & Yarrington was caused by the competition of Harwood, if any, in violation of his contract, what part was due to competition of Harwood under his written permission, what part was due to other competition than houses represented by Harwood, or what part was due to lack of experience in the business on the part of Raymond & Brother, as compared with Harwood & Yarrington. The jury will therefore return a verdict for the defendant." In view of the fact that the case will be remanded for a new trial, we must refrain from discussing the testimony. We may say, however, that the evidence does not show how much, if any, the plaintiff was damaged; and it may be that if, under the testimony and a proper instruction, the jury had given only nominal damages, the court should not have disturbed the verdict. From the nature of the case, it is impossible to show the damages with accuracy, and to require accuracy in such a case would be to deny a remedy for a wrong. In Welsh v. Morris, previously cited, a judgment for substantial damages was sustained upon testimony quite as unsatisfactory, to say the least of it, as that introduced in the present case.

If Harwood violated his contract the plaintiff was entitled to recover, at all events, nominal damages: Davis v. Texas etc. Ry. Co., 91 Tex. 505, 44 S. W. 822.

The judgment of the district court and that of the court of civil appeals are reversed and the cause remanded for a new

One of the Questions Involved in the principal case was presented for consideration and decision in Brown Hardware Co. v. Indiana Stove Works, 96 Tex. 453, 73 S. W. 800. The plaintiff, a corporation, engaged in the business of selling stoves by wholesale, employed one Nash as a traveling salesman under an agreement with him that. he was to serve it exclusively, but the defendant, another corporation engaged in a like business and knowing of Nash's contract, induced him to violate it by abandoning the service of the plaintiff and entering that of the defendant, whereby the defendant alleged that it lost trade and was damaged many thousand dollars. A demurrer to the complaint stating these facts was sustained and a judgment entered for the defendant, but it was reversed on authority of the principal case.

ACTIONS FOR INDUCING ONE TO BREAK HIS CONTRACT. I. Scope of Note.

II. When Action Will Lie.

a. Malice Gist of Action.

b. Person Induced to Violate Contract may Recover.

C.

Proof of Specific Damage.

d.

Malicious Motives

Action.

Alone Held not Sufficient to Sustain

I. Scope of Note.

In this note we shall not attempt to treat of those cases which involve the relation of master and servant. The liability of a person who interferes between employer and employé, and by inducement either occasions the latter to be discharged or to voluntarily leave his employment, thus causing a breach of contract, has been treated in the note to Webber v. Barry, 11 Am. St. Rep. 474-478, where the general rule is stated to be that one who knowingly and willfully entices away the servant of another, inducing him to violate his contract with his master, and thereby depriving the latter of the services of a person actually in his service, or bound by contract to render him service, is liable to the master for the actual loss which he sustains therefrom. Although this rule, in the main, has been applied where the relation of master and servant existed, it applies with equal force to all other cases where the breach of a contract not involving such relations, is induced by the malicious and unlawful intermeddling of a third person. "It is familiar and well-estab lished doctrine of the law upon the relation of master and servant,. that one who entices away a servant, or induces him to leave his. master, may be held liable in damages therefor, provided there exists. a valid contract for continued service, known to the defendant. It has sometimes been supposed that this doctrine sprang from the English statute of laborers, and was confined to menial service. But we are satisfied that it is founded upon the legal right derived from the contract, and not merely upon the relation of master and servant, and that it applies to all contracts of employment, if not to cortracts of every description": Walker v. Cronin, 107 Mass. 567.

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