851. PICKETT v. Walsh. (1906. 192 Mass. 572, 582, 78 N. E. 753.) LORING, J. . . . These being the general principles, we are brought to the question of the legality of the strike in the case at bar, namely, a strike of brick-layers and masons to get the work of pointing, or, to put it more accurately, a combination by the defendants, who are bricklayers and masons, to refuse to lay bricks and stone where the pointing of them is given to others.

1. The defendants in effect say, We want the work of pointing the bricks and stone laid by us, and you must give us all or none of the work. The case is one of competition between the defendant unions and the individual plaintiffs for the work of pointing. The work of pointing for which these two sets of workmen are competing is work which the contractors are obliged to have. One peculiarity of the case therefore is that the fight here is necessarily a triangular one. . . . We are of opinion that it was within the rights of these unions to compete for the work of doing the pointing and, in the exercise of their right of competition, to refuse to lay bricks and set stone unless they were given the work of pointing them when laid. . . . The result is harsh on the contractors, who prefer to give the work to the pointers because (1) the pointers do it by contract (in which case the contractors escape the liability incident to the relation of employer and employee; because (2) the contractors think that the pointers do the work better, and if not well done the buildings may be permanently injured by acid; and finally (3) because they get from the pointers better work with less liability at a smaller cost. Again, so far as the pointers (who cannot lay brick or stone) are concerned, the result is disastrous. But all that the labor unions have done is to say you must employ us for all of the work or none of it. They have not said that if you employ the pointers you must pay us a fine, as they did in Carew v. Rutherford, 106 Mass. 1. They have not undertaken to forbid the contractors employing pointers, as they did in Plant v. Woods, 176 Mass. 492. So far as the labor unions are concerned the contractors can employ pointers if they choose, but if the contractors choose to give the work of pointing the bricks and stone to others the unions take the stand that the contractors will have to get some one else to lay them. The effect of this in the case at bar appears to be that the contractors are forced against their will to give the work of pointing to the masons and bricklayers. But that fact that the contractors are forced to do what they do not want to do is not decisive of the legality of the labor union's acts. That is true wherever a strike is successful. . . . Further, the effect of complying with the labor union's demands apparently will be the destruction of the plaintiff's business. But the fact that a plaintiff's business is destroyed by the acts of the defendants done in pursuance of their right of competition is not decisive of the illegality of the acts.

...

2. This brings us to the legality of the strike by the union bricklayers and masons employed by the L. P. Soule & Son Company on other buildings because that corporation was doing work on a building on which work was being done by pointers employed not by the L. P. Soule & Son Company but by the owners of the building. That strike has an element in it like that in a sympathetic strike, in a boycott and in a blacklisting, namely: It is a refusal to work for A, with whom the strikers have no dispute, because A works for B, with whom the strikers have a dispute, for the purpose of forcing A to force B to yield to the strikers' demands. In the case at bar the strike on the L. P. Soule & Son Company was a strike on that contractor to force it to force the owner of the Ford Building to give the work of pointing to the defendant

unions. That passes beyond a case of competition where the owner of the Ford Building is left to choose between the two competitors. Such a strike is in effect compelling the L. P. Soule & Son Company to join in a boycott on the owner of the Ford Building. It is a combination by the union to obtain a decision in their favor by forcing third persons who have no interest in the dispute to force the employer to decide the dispute in their (the defendant unions') favor. Such a strike is not a justifiable interference with the right of the plaintiffs to pursue their calling as they think best. In our opinion, organized labor's right of coercion and compulsion is limited to strikes against persons with whom the organization has a trade dispute; or, to put it in another way, we are of opinion that a strike against A with whom the strikers have no trade dispute, to compel A to force B to yield to the strikers' demands, is an unjustifiable interference with the right of A to pursue his calling as he thinks best.

852. BOOTH v. BURGESS

COURT OF CHANCERY OF NEW JERSEY. 1906

72 N. J. Eq. 181, 65 Atl. 226

ON motion for a preliminary injunction. Heard on bill with annexed affidavits and answer with annexed affidavits.

Mr. Charles E. Henderson, Jr., and Mr. Charles L. Corbin, for the motion.

Mr. John J. Mulvaney, contra.

STEVENSON, V. C. Upon the motion papers as they stand, counsel for the complainant applied for an injunction merely to enjoin the maintenance of a boycott. The motion for a wider preliminary injunction indicated by the order to show cause was abandoned. The complainant is a corporation under the laws of New Jersey, carrying on the business of lumber dealers and manufacturers of doors, blinds, trim and other mill work used in the erection of buildings. Its customers are boss carpenters and building contractors. It owns its yard and mill, which are situate at Bayonne, in Hudson county, and the value of its plant and stock on hand is over $200,000. It employs about twenty-five hands. The defendants against whom a preliminary injunction was prayed for are officers and agents of the labor organizations which embrace the building trades of Hudson county. These trades are organized in the usual way, in local unions. . . . Consequent upon a dispute as to hours of labor and wages between the complainant and its employees, the complainant "declared the open shop," the employees struck, and thereupon the complainant became involved in a contest with the whole system of labor unions in Hudson county connected with the building trades, embracing between two and three thousand workmen. The complainant became "unfair" and all its products likewise became "unfair." The labor organizations, through

the defendants, their officers and agents, have notified the boss carpenters and builders that the complainant's goods are "unfair," and that members of the unions will not handle them, and that if they receive or use any of this unfair material their employees will be called out, and thus they are confronted with loss, if not ruin, in case they persist in dealing with the complainant. Under this coercion certain boss carpenters have broken their contracts with the complainant, under which they were receiving the complainant's goods, and, what is of more consequence, other boss carpenters and builders, who had been regular customers of the complainant, have been constrained to refrain from using its goods on their jobs, inasmuch as the inevitable result of such use would be that all their employees who are members of these allied labor unions would immediately be called off and forced into a strike. . . . The scheme includes the coercion by the defendants of the employees of the boss carpenters. These workmen are to be forced to strike against their will whenever the defendants shall say the word. The coercion consists in the fact that if any workman refuses to strike he is liable to a fine, and also to expulsion from his union. Expulsion from the union subjects the victim not only to obloquy, but also to pecuniary loss, and makes it more difficult for him to get employment and make his living, as is amply illustrated in this case. . . . The pecuniary loss from this boycott falls directly upon the complainant.

After hearing an elaborate argument by counsel, I advised an order for an injunction restraining the defendants "from calling out or directing to strike any employee or employees of the complainant's customers, or persons who were willing to deal with the complainant, with the intent or with the effect to coerce or induce by fear of loss of such customer, or persons willing to deal with the complainant, to break their contracts with the complainant, or to refrain from dealing with the complainant; and also restraining the defendants from coercing or inducing such employees by fine or expulsion from a labor union, or by threat of such fine or expulsion, to refrain from being employed by such customers with the intent or effect aforesaid." . . The order, I think, is sustained by . . . the prior decisions of this Court, and by a great weight of authority in other States and in England. . . . I might safely rest upon the controlling authority of the cases above cited. . . . Under the circumstances I shall endeavor, as briefly as possible, to set forth the legal propositions which seem to me to be sound and adequate to sustain the order which was made in this case.

A large part of the confusion and conflict among the boycott and strike decisions in this country and in England has arisen, I think, from the attempt which judges have made to . . . define a tort without agreeing upon the primary legal right which the tort postulates, especially when such effort is made with the use of such terms as "malice"

.. Therefore the first thing to do is to discover

and define that right and that duty. . . .

For the purpose of this present inquiry I think there are three rights, the violation of each of which is a distinct tort, which must be fully recognized and carefully distinguished.

First. We have the right in a contract. Our law now recognizes a contract right as property which is to be protected against undue interference by persons not party to the contract. When a third party intentionally, by the use of any kind of means, causes a breach of the contract involving damage, he is prima facie guilty of a tort. The right, however, is not absolute. Circumstances may exist which cause the right to cease to exist. These circumstances are said to amount to a justification or excuse on the part of the person who has caused the breach of contract. There may be no harm in calling these exceptional facts a justification, and the use of such phraseology is certainly sustained by abundant analogies. When these definitions of rights are laid down what, in fact, is done is to describe what is prima facie a right, leaving for each case the question whether some further fact or facts not included in the definition do or do not take the case out of the scope of the definition. There is no justification for a tort. The socalled justification is an exceptional fact which shows that no tort was committed. Such exceptional fact makes the case an exception to the definition of the tort.

Second. We have the right to contract or to refrain from contracting. No man can exercise the right to contract except when he finds another man who in the exercise of his similar right is willing to contract with him. Whether an individual can commit a tort by violating the right to contract belonging to another we need not consider. The common instance of the violation or attempted violation of this right is where the State intervenes and undertakes arbitrarily to penalize the exercise of this right in certain particular cases.

Third. We have the right to a free market, which is the right of every dealer, in the full enjoyment of his right to contract, to have all other possible dealers with him left free to deal or not as they may voluntarily elect. Thus recognition is accorded to the "interest which one man has in the freedom of another." Jersey City Printing Co. v. Cassidy, supra, 765. The tort exhibited by the violation of the right to a free market consists in coercing the market, i. e., interfering with the right of a particular dealer to enjoy the advantages of freedom to deal with him on the part of all who may voluntarily desire to deal with him. As in the case of the first right above mentioned the right to enjoy the fruits of a contract as property so also in this instance

exceptional circumstances may make the right to cease to exist, and for convenience and in accordance with the analogies of the law such exceptional circumstances may be deemed as constituting a justification or excuse.

A fourth right, or a wide extension of the right above defined as the right to a free market, has undoubtedly been involved in if not expressly recognized by the decisions of some Courts in strike and boycott cases. This wider right concedes to every man not only a free market but a market where transactions occur naturally according to the ordinary laws of trade and commerce, unaffected, not only by coercion, but also by persuasions or non-coercive inducements from outside parties applied by them with intent and with the effect to interfere with his dealings and thereby to cause him damage. Whether in New Jersey, upon a further development of the law, such a wider right will be recognized and the tort which consists in its violation will be restrained by injunctions, need not be considered in this case. No such injunction is asked for in this cause because the sole grievance of the complainant against the defendants is that they are practising coercion in the market which is not only powerful but almost irresistible. . . .

We now approach the discussion of the facts of the case in hand, and in such discussion we must bear in mind at every stage two principles which, I think, at the present day, are established beyond question. The first of these principles is the absolute right of all men to contract or refrain from contracting, which is one of the rights hereinbefore enumerated. The motives which actuate a man in refraining from making a contract in relation to labor or merchandise or anything else are absolutely beyond all inquiry or challenge. Self-evident as it may be, the proposition, I think, has often been lost sight of that the right to refrain from contracting is an absolute right, which every man can exercise justly or unjustly, for a good purpose or for a bad purpose, "maliciously" in the popular sense of the term, or benevolently. The second principle to keep in view is not at present universally recognized as sound law, viz., that men have an absolute right to act in voluntary combination with respect to contracting or refraining from contracting. . . . It may be worth while to note precisely what a free combination of employers or employees or vendors or purchasers actually do when, for the purposes of a strike or a boycott, they concurrently exercise by agreement their several and respective rights to refrain from contracting. They are not combining, as is sometimes erroneously supposed, to do anything, much less to do the same thing; they are merely agreeing voluntarily that each of them will refrain from doing a certain thing which is precisely similar to another thing which each of the others in like manner will refrain from doing. . . . I do not think that it is worth while in this country to waste time at the present day, and especially in view of the statutes which have very generally been enacted, in vindicating the absolute right of every dealer in the market to refrain from contracting, and to so refrain by voluntary agreement concurrently with similar abstention from contracting on the part of a thousand or ten thousand other dealers in the market. Hence it follows that a free boycott which causes enormous