"It was decided in Haskins v. Royster, 70 N. C. 601, 16 Am. Rep. 780, that if a person maliciously entices laborers or croppers to break their contracts with their employer and desert his service the employer may recover damages against such person. The same reasons cover every case where one person maliciously persuades another to break any contract with a third person. It is not confined to contracts for service": Jones v. Stanby, 76 N. C. 356.

a.

II. Where Action Will Lie.

Malice Gist of Action.-As a general rule it may be stated that if one wantonly and maliciously, whether for his own benefit or not, induces a person to violate his contract with a third person to the injury of the latter, it is actionable: West Virginia Transp. Co. v. Standard Oil Co., 50 W. Va. 611, 88 Am. St. Rep. 895, 40 S. E. 591. 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: Angle v. Chicago etc. Ry. Co., 151 U. S. 1, 14 Sup. Ct. Rep. 240. While "merely to persuade a person to break his contract may not be wrongful in law or fact, still if the persuasion be used for the indirect purpose of injuring the plaintiff, or benefiting the defendant, at the expense of the plaintiff, it is a malicious act, which, in law and in fact, is a wrongful act, and therefore an actionable act, if injury issued from it': Chipley v. Atkinson, 23 Fla. 211, 11 Am. St. Rep. 367, 1 South. 934; Lumley v. Gye, 2 El. & B. 216; Bowen v. Hall, L. R. 6 Q. B. Div. 333. In order to recover in such cases express malice must be shown, because a person who, on being asked gives honest advice and bona fide counsel to another which induces him to break his contract with a third person, is not liable for damages at the suit of such third person, although the latter has sustained loss by the breach of the contract. And this is true where

several persons have combined to give the advice if they have no malicious intention to injure such third person: Glamorgan Coal Co. v. South Wales Miners' Federation (1903), 1 K. B. 118, 87 L. T. 232. An intentional and malicious interference with the legal right of another, such as procuring the breach of a contract with him, is an actionable wrong, unless there is sufficient justification for the interference and what will justify such interference cannot be satisfactorily defined, and this question must be left to the determination of the court in each case. In considering the circumstances surrounding the case regard must be had to the nature of the contract broken, the position of the parties to it, the grounds of the breach, the means employed, the relation of the person who procures the breach to the person who breaks the contract and the object in procuring such breach. If an intentional interference is shown with the contractual rights of other persons there is a legal presumption of malice on the party inducing the breach of the contract; but he may rebut the presumption by proof

of facts raising a duty on his part to advise a breach of contract, and the person injured by the breach may neutralize such proof, by showing express malice on the part of the adviser: Glamorgan Coal Co. v. South Wales Miners' Federation (1903), 2 K. B. 545, 87 L. T. 493.

Malice must be shown to exist in order to maintain the action as an unwarranted interference between the contracting parties does. not create a cause of action unless actuated by motives of fraud or malice: McCann v. Wolff, 28 Mo. App. 447. Since the decision in Lumley v. Gye, 2 El. & B. 216, it may be regarded as established law in England and in this country that an action will lie against a person who maliciously persuades another person to break his contract. with the plaintiff to the injury of the latter: Bowen v. Hall, L. R. 6 Q. B. Div. 333; Glamorgan Coal Co. v. South Wales Miners' Federation (1903), 2 K. B. 545; Perkins v. Pendleton, 90 Me. 166, 60Am. St. Rep. 252, 38 Atl. 96; Walker v. Cronin, 107 Mass. 555, 567; Morgan v. Andrews, 107 Mich. 33, 64 N. W. 867; Lally v. Cantwell, 30 Mo. App. 524, 528; Haskins v. Royster, 70 N. C. 601, 16 Am. Rep. 780; Jones v. Stanby, 76 N. C. 355; West Virginia Transp. Co. v. Standard Oil Co., 50 W. Va. 611, 88 Am. St. Rep. 895, 40 S. E. 591. An action lies against a third person for wrongfully procuring a person to break his contract with the plaintiff to the latter's injury by the employment of unlawful and improper means. This rule applies where the employer breaks his contract, as well as where it is broken by the employé, and is not in fact, confined to contracts of employment: Perkins v. Pendleton, 90 Me. 166, 60 Am. St. Rep. 252,. 38 Atl. 96. The gravamen of the civil action for damages for inducing the breach of the contract is malice: Van Horn v. Van Horn,, 52 N. J. L. 284, 20 Atl. 485. This rule may be illustrated by a number of cases. Thus an action lies in favor of a landlord, against any person who so wrongfully and maliciously disturbs his tenants, that they abandon his premises and the landlord thereby loses his rent: Aldridge v. Stuyvesant, 1 Hall (N. Y.), 235. Or if persons are engaged to work a farm, under written contract whereby they are to receive part of the crop for their services, the owner of the farm can maintain an action against a third person for maliciously inducing them to break their contract, and it is no defense that suchcontract was unreasonable: Haskins v. Royster, 70 N. C. 601, 16 Am. Rep. 780. In Morgan v. Andrews, 107 Mich. 33, 64 N. W. 869, it appeared that plaintiff entered into a contract to design and construct a machine which should produce certain results, but which the purchaser should have the right to reject if not satisfactory to him. A corporation was thereafter formed to continue the business: of the purchaser, and the defendant became a stockholder therein. Maliciously and deceitfully defendant induced such purchaser to reject the machine, which he would otherwise have accepted and it was held that the defendant was liable for the resulting damage to the plaintiff. A combination in business wantonly and maliciously

formed to induce a person to violate his contract with a third person, to the injury of the latter, is unlawful and actionable: West Virginia etc. Co. v. Standard Oil Co., 50 W. Va. 611, 88 Am. St. Rep. 895, 40 S. E. 591. In Rice v. Manley, 66 N. Y. 82, 23 Am. Rep. 30, it appeared that one Stebbins agreed verbally to sell to Rice a large quantity of cheese. The contract was not enforceable because within the statute of frauds. Manley induced Stebbins to believe that Rice did not want the cheese, and himself purchased it from Stebbins, who would have otherwise delivered it to Rice as agreed. It was held that Manley was liable to Rice in damages for his malicious and fraudulent interference with the contract, notwithstanding Stebbins was not in any wise liable to Ricę. To the same effect is Lucke v. Clothing Cutters, 77 Md. 396, 39 Am. St. Rep. 421, 26 Atl. 505. Again, in Benton v. Pratt, 2 Wend. 385, 20 Am. Dec. 623, the contract was void under the statute of frauds, yet the court held that a recovery could be had against a third person, who maliciously interfered with the contract for his own gain or profit. False statements, made by a person in regard to articles made and manufactured by another, for the purpose of preventing sales by them and as an inducement to break a contract entered into, and which do in fact prevent such sales and thus injure the manufacturer in his business create a cause of action: Snow v. Judson, 38 Barb. 210. In Morgan v. Andrews, 107 Mich. 39, 64 N. W. 869, it was said that “of course this rule would not prevail where the party sought to be charged in damages was acting in the lawful exercise of some distinct right, for the quo animo constitutes a large part of the gist of the action." The foundation of the action is malice resulting in damage to the plaintiff, by invading some legal right. Hence, if a person induces a testator by means of false and fraudulent representations to revoke his will devising his real estate to a third person, the latter cannot maintain an action for damages because by such inducement he is deprived merely of an expected gratuity, and none of his legal rights are thereby interfered with: Hutchins v. Hutchins, 7 Hill, 104.

b. Person Induced to Violate Contract may Recover.-Although a person who violates a contract is personally liable, yet if he is induced to do so by the acts and persuasion of another who intended thereby to injure the other contracting party or to coerce him to adopt a line of business against his will and judgment, he also has a right to recover against the persons thus inducing him to break his contract: Doremus v. Hennessy, 176 Ill. 608, 68 Am. St. Rep. 203, 52 N. E. 924, 54 N. E. 524.

c. Proof of Specific Damage. In order to support an action for maliciously inducing persons to break their business contracts with the plaintiff proof of specific damage need not be given. It is sufficient if facts are proven from which it may properly be inferred that some damage must result to the plaintiff from the defendant's

wrongful acts: Exchange Tel. Co. v. Gregory (1896), L. R. 1 Q. B. Div. 147. In this case it was said: "To say that the damage must be such as can be measured, that you must show how much the wrongful act complained of would injure the person against whom it was done, is no answer. A man who does such a wrongful act as the defendant has done lays himself open to be told by the tribunal before whom he appears: 'You have damaged the plaintiff. You have done a contemptible and fraudulent act against him, and have invaded his common-law right, and therefore you must have damaged him.' In such case the jury may give any damages. It is not necessary to give proof of specific damage. The damages are damages at large': Exchange Tel. Co. v. Gregory (1896), L. R. 1 Q. B. Div. 153.

d. Malicious Motives Alone Held not Sufficient to Sustain Action. There is a line of cases which in effect repudiate the doctrine laid down in the cases heretofore cited by announcing the rule that merely to induce or procure a free contracting party to break his contract, whether done maliciously or not, to the damage of the other contracting party, does not give a right of action against the party holding out the inducement: Glencoe Land etc. Co. v. Hudson Brothers Co., 138 Mo. 439, 60 Am. St. Rep. 560, 40 S. W. 93. This rule is based on the absurd proposition that the act of a person in inducing another to break his contract with a third person to the injury of the latter, does not constitute a legal wrong, and that as the act does not constitute a legal wrong, it cannot be actionable because it is done with a bad or malicious motive or intent, and that although malicious motives may make a bad act worse, they cannot make that a wrong which in its own essence is lawful: Boysen v. Thorn, 98 Cal. 578, 33 Pac. 492; Chambers v. Baldwin, 91 Ky. 121, 34 Am. St. Rep. 165, 15 S. W. 57; Bourlier v. Macauley, 91 Ky. 135, 34 Am. St. Rep. 171, 15 S. W. 60. Hence this line of cases holds that an action will not lie against one who from malicious mo tives, but without threats, violence, fraud, falsehood, deception, or benefit to himself, induces another to violate his contract with the plaintiff to the latter's injury, with whom he does not stand in the relation of master and servant or any other personal relation: Boysen v. Thorn, 98 Cal. 578, 33 Pac. 492; Glencoe Land etc. Co. v. Hudson Brothers etc. Co., 138 Mo. 439, 60 Am. St. Rep. 560, 40 S. W. 93. The Kentucky courts hold that merely inducing a person without exercising coercion or deception to break his contract with the plaintiff is not an actionable wrong, and the mere fact that the defendant was actuated by malicious motives and by a purpose of injuring the plaintiff does not so change the character of what he has done, as to convert it into a tort for which damages may be recovered: Chambers v. Baldwin, 91 Ky. 121, 34 Am. St. Rep. 165, 15 S. W. 57; Bourlier v. Macauley, 91 Ky. 135, 34 Am. St. Rep. 171, 15 S. W. 60. It has also been held that if a person has agreed to sell property to another, a third person may, at any time before the title has

passed, induce the vendor not to let the person with whom he has contracted have the property, but instead to sell it to himself, provided he is guilty of no fraud or misrepresentation, and the person holding out the inducement and thus obtaining the property is not liable in any way to the proposed vendee whose contract with the vendor is thus broken: Ashley v. Dixon, 48 N. Y. 430, 8 Am. Rep. 559. In Payne v. Western etc. R. R. Co., 13 Lea, 507, 49 Am. Rep. 666, the plaintiff, a merchant, had a large and profitable trade with the defendant's employés. Defendant posted a notice to the effect that if any of his employés, after that date, traded with plaintiff, they would be discharged. This it was alleged was done maliciously, whereby plaintiff was damaged. The court held that the act done was not unlawful, nor done in an unlawful manner, and though exercised from wicked and malicious motives, was not actionable, and the fact of whether or not a contract existed between the merchant and the employés could make no difference nor could it affect the principle involved.

WILSON v. ELLIOTT.

[96 Tex. 472, 73 S. W. 946.]

PARENT AND CHILD-Foreign Decree of Divorce Affecting the Custody of a Child.-A decree of divorce in another state or territory in which the custody of the child is awarded to the father is conclusive as to his right and fitness for such custody at that time, and in a proceeding by habeas corpus for the possession of the child evidence will not be heard to show that he was less fit for such custody than the mother at the time of the entry of the decree. It is not, however, a bar to a subsequent proceeding to modify it upon proof that the situation and character of the parties have so changed as to render it to the interest of the child that it be committed to the care of its mother. (p. 930.)

Proceedings by habeas corpus whereby a father of a girl eleven years of age sought to obtain possession of her from her mother. The parents had been divorced by a district court of New Mexico, which by its decree awarded the custody of the child to the father, but provided that she should be permitted to visit her mother during the month of July of each year in the territory of New Mexico, but should not be removed therefrom. The mother subsequently married and brought her daughter to Texas, in violation of the decree. The trial judge held that the decree of divorce was conclusive upon the parties upon the question of their respective fitness for the custody of the child at the time it was rendered, and refused to consider any evidence of any fact occurring prior to such decree. The court of civil appeals of the fourth district was of the opinion "that the court