devices to be used for gambling or other immoral purposes.

§ 347. The right to make contracts.―This, like the right to own property, is a fundamental one and the law aims to protect it to the fullest degree consistent with good order and morals. It is, however, subject to the power of the state. The state may by general statutes adopt valid regulations for and even prohibit certain classes of contracts. By the statute of frauds it renders certain classes of contracts unenforceable. It may prohibit the employment of infants in certain kinds of business; it may deny the power to infants or married women to make contracts; it may prohibit women from engaging in the saloon business or from being employed therein. For such legislation, if constitutional, there can be redress. If unconstitutional the only redress is to have the statute so declared by the court.

If individuals impair this right, the law affords remedy by civil suit and sometimes by a criminal prosecution.

Whoever, by any wrongful act prevents another from engaging in business or making contracts may be held liable for the wrong to the person thereby injured. Generally these wrongs are incidental to an act that is a wrong upon other grounds; as libel, slander, assault and battery, or imprisonment; and in such cases the wrong will be remediable upon such other grounds, the injury to the right to do business or to contract being considered by way of increasing damages.

§ 348. The right to labor and employ labor, and the right to engage in business.-This class, under the

right to make contracts, is peculiarly liable to violation by individuals through wrongs that are not remediable upon other independent grounds, and a separate consideration is therefore proper. As has been heretofore stated, mere threats by one individual against another are not actionable civilly. The reason is, not that they are not wrong, but that the injury is ordinarily so inconsiderable that the law will not concern itself with giving a remedy. That threats are nevertheless a wrong is shown by the fact that in an assault and battery proof of them may be given to show a plaintiff to have been the aggressor, and thereby diminish damages, and by the fact that where one through threats has accomplished a purpose he could not have otherwise accomplished, such threats constitute a principal element of the wrong. Threats may make an act unlawful that without them might be innocent. Whenever they are used so as to effect greater injury than would occur when they are mere threats between man and man, they may become actionable.

The right to labor and employ labor, and the right to engage in any business, is often interfered with, through the combinations of individuals. This may be by strikes, lockouts or other concerted action. The question is, when are such combinations lawful or unlawful. The purposes of such combination may be (1) to prevent an employer from hiring whom he pleases, (2) to prevent a laborer from hiring to whom he pleases, (3) to prevent a laborer from working at certain kinds of employment, (4) to prevent a business man from engaging in a certain business; or the purpose may be the reverse of each.

The principle is the same in all and the law in relation to strikes will be illustrative.

§ 349. Strikes.-Under the early English decisions the rule was that though any one was entitled to quit service when he pleased, yet if two or more agreed that they would quit together such agreement would be a legal wrong. It was called a criminal conspiracy. Some of the early American cases adopted these decisions as the law. With the progress of society, the rule has been greatly modified and made more liberal in favor of those combining. It is now the law that workmen may as a body agree not to work except on certain conditions, and in pursuance of such agreement may quit service and they will not be guilty of an unlawful act, so long as they confine themselves to peaceable methods. It seems, however, by some late federal decisions, that if the quitting necessarily involves the breach of contract, or if the time of quitting be fixed so as to cause the greatest damage, a combination to that end may be unlawful.

The means used must at all events be peaceable. As soon as threats, menaces and intimidation enter into the methods of the combination, there is an actionable wrong, and all the participators may be subject to civil as well as criminal liability for conspiracy.

§ 350. The remedy.-Wherever it is shown that an unlawful conspiracy exists, a civil action is maintainable against the wrong-doers, and the injuries sustained are recoverable as damages.

More effective and prompt remedy, however, is by the writ of injunction.

CHAPTER XXIX.

FRAUD.

§ 351. Kinds of fraud.-It is every one's right to have others exercise good faith toward him and to refrain from violating the trust and confidence that he may place in them. The social fabric rests upon the maintenance of this right. It is evidently impracticable, however, for the law to enforce perfectly honest and fair dealing under all circumstances. The inquiry must be, how far does the law take cognizance of or undertake to remedy violations? This is the subject of frauds and deceptions.

Wrongs of this kind may exist where the parties are not upon terms of equality, and the injured person is by reason of some special relation entitled to repose more than usual confidence in the wrong-doer. Or such wrongs may be where the parties do not occupy any special relation toward each other. As to both classes, the wrong may consist in either affirmative conduct, as where one makes a false statement misleading another, or in negative conduct, as where one who ought to speak is silent.

§ 352. Frauds in confidential relations.-Where parties are upon any special terms of relationship under which one is entitled to place peculiar reliance upon the other, the law will closely scrutinize transactions between them, and may hold any violation of (225)

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Some of these rela

confidence to be a legal wrong. tions will be separately considered. The principles are analogous in all.

§ 353. Husband and wife.-To this, the most confidential of all relations, the law gives a jealous protection. Communications between husband and wife are held sacred, and no matter how great may be the interests that seem to demand it, the law will not compel a disclosure. Nevertheless, as between themselves, no legal remedy is given for a violation of such confidences. For it is deemed better policy to leave the observance of confidences between husband and wife to their own sense of what is proper. Any attempt at legal redress would probably cause greater evils than it would cure.

So far as concerns dealings between husband and wife in relation to their property interests, it is evident that they must always, to a greater or less degree, be affected by the influence of the marriage relation. While the law recognizes with approval a reasonable use of such influence, no unfair use of it will be permitted. As a rule, the man being the stronger and more experienced in business affairs, there is less reason to suspect an undue controlling influence on the part of the wife. On the other hand, a husband is presumed to have a great influence and control; so that, in any transactions as to the wife's property, the law will examine most closely, and if there be found any evidence whatever of unfairness or bad faith, relief will be granted.

§ 354. Parties engaged to marry.—This relation establishes a confidence which, though not of so high a degree as marriage, may be the basis for accom