"The legal right of a man to work is not absolute, but is based upon, and conditioned by, the welfare of society."1

The welfare of society is even more important than the welfare of organized workmen, and the welfare of each is bound up in the welfare of the other." 2

"These are exercises of personal freedom which are perfectly legitimate in themselves, but which cannot be indulged in without interfering with rival exercises of personal freedom by others. One must give way to the other, and questions immediately arise as to which is to prevail, and whether the diminution of either by the exercise of the rival freedom gives rise to a right of action."

It has been said that the principal business of the common law is the adjustment of conflicting rights.

Mr. Dicey has told us that the law of self-defense is a compromise.*

The same high authority has said:

"... the most which can be achieved by way of bringing into harmony two essentially conflicting rights [the learned author is here speaking of the right to individual freedom and the right of association] . . . is to effect a rough compromise between them. Such a practical solution of a theoretically insoluble problem is sometimes possible. That this is so is proved by our existing law of libel. It is a rough compromise between the right of A to say or write what he chooses, and the right of X not to be injured in property or character by A's free utterance of his opinions."

We think that these views apply to the class of cases now under discussion. Decisions upon the sufficiency of alleged justifications must be the result of a compromise, and a rough compromise at that. And the distinctions between cases in which opposite results are reached must very often be differences of degree. “ . . . in many cases the test of whether that which in itself and so far as its mere nature goes is not unlawful constitutes a cause of action or not is degree." 6

1 Mitchell, Organized Labor, 278.

2 Ibid., 423.

8 Wills, J., in Allen v. Flood, [1898] A. C. 1, 46.

Dicey, The Constitution, 6 ed., 437.

The law of negligence "is in its very nature a compromise." Prof. Bohlen, 40 Am L. Reg. (N. S.) 83.

5 Dicey, Law and Opinion in England, Appendix 466.

6 Wills, J., ubi supra, 46.

What, in a general way, are the requisites of justification? 1 Of course, the mere fact that a business competitor has intentionally done acts which he knew would seriously damage the plaintiff does not necessarily establish his liability.2 Nor, on the other hand, does the fact that such acts were very beneficial to the defendant necessarily exonerate him.

It is submitted that there can be no justification unless the following general requisites are complied with:

1. There must be a conflict of interest between plaintiff and defendant as to the subject matter in regard to which the damage is done. Or, at least, there must be a legitimate interest of defendant to be directly served as to that subject matter.

2. The damaging act must be reasonably calculated to substantially advance the interest of the defendant."

3. The damage resulting to the plaintiff, or to the general public (including the employer), must not be excessive in proportion to the benefit to the defendant. In other words, there must be a reasonable proportion between the benefit to the defendant and the damage to the plaintiff or to the public.*

4. Even where propositions 1, 2, and 3 are made out, the justification must be confined to those cases where defendant uses only his own con

1 In Giblan v. Nat'l, etc., Union, [1903] 2 K. B. 600, 618, Romer, L. J., said that "it is not practically feasible to give an exhaustive definition of the word [justification] to cover all cases." Cf. Hammond, J., in Martell v. White, 185 Mass. 255, 258.

2" But the fact that the business of a plaintiff is destroyed by the acts of the defendants done in pursuance of their right of competition is not decisive of the illegality of them." Loring, J., in Pickett v. Walsh, 78 N. E. Rep. 753 (Mass., 1906).

3 "... even a substantial and lawful end may not warrant the use of the particular means not adapted to the accomplishment of that end." 18 HARV. L. REV. 442.

In Hopkins v. Oxley Stave Co., 83 Fed. Rep. 912, 935-936, Caldwell, J., said: "The grounds of the boycott are wholly immaterial in determining the right to boycott. Whether organized labor has just grounds to declare a strike or boycott, is not a judicial question." We submit that, however correct these views may be as applied to the case then before the court, and using the word "boycott" in the sense intended by the learned judge, yet they cannot be affirmed as abstract general propositions of universal application.

It has been suggested that legal excuse "should not be found in the interest or advancement of the defendant," but "should be found, if at all, in the interest of the community at large." No doubt the interest of the defendant is not the only consideration. The interest of the community is also to be regarded. But the interest of the defendant is certainly one of the circumstances to be taken into consideration.

4“... an unjustifiable end, that is, an end which intentionally inflicts a damage upon a particular individual without a corresponding and compensating advantage to the one who inflicts it or to those whom he represents." 18 HARV. L. REV. 439.

duct as a lever, and therewith operates directly upon the possible employer or customer of the plaintiff. Defendant can never justify using his right to work or not to work (or any other right) as a temporal inducement to influence an outsider, or fourth person,' to exert pressure upon the possible employer or customer of the plaintiff.

[To be continued.]

Jeremiah Smith.

1 See previous explanation of these terms, ante, p. 265.

THE RIGHT OF A SELLER OF GOODS TO RECOVER THE PRICE.

THE

Dedicated to Professor Langdell.

HE English Sale of Goods Act provides in regard to the
a
seller's right to sue for the price upon a contract of sale: 1

"(1) Where, under a contract of sale, the property in the goods has passed to the buyer, and the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract, the seller may maintain an action against him for the price of the goods.

"(2) Where, under a contract of sale, the price is payable on a day certain irrespective of delivery, and the buyer wrongfully neglects or refuses to pay such price, the seller may maintain an action for the price, although the property in the goods has not passed, and the goods have not been appropriated to the contract."

There can be no doubt of the correctness of the first provision of the foregoing section; namely, that where the property in the goods has passed and the buyer wrongfully neglects or refuses to pay for them, the seller may recover the price. Of course credit may have been given or the price may have been payable upon condition, and unless the term of credit has expired or the condition happened, no recovery can be had. In such a case the refusal of the buyer to pay would not be wrongful. The affirmative provision of the statute contains, however, the negative implication that unless the property in the goods has passed to the buyer, the seller cannot maintain an action for the price. This, indeed, expresses the general rule of the English law,2 and the reason for the rule is plain. As the seller still is owner of the goods, he ought not to be given also the price for them. His damage is the difference in value between what he now has, namely, the goods, and what he would have had if the defendant had not broken his contract, namely, the price. Nevertheless, a large number of states do not follow the English law in this matter. If the reason why the property in the goods has not passed to the buyer is because

1849.

2 Atkinson v. Bell, 8 B. & C. 277. See also Elliott v. Pybus, 10 Bing. 512.

the buyer wrongfully refused to take title when offered to him, according to the weight of authority, perhaps, in this country, the seller may recover the full purchase price. The reason for allowing this is not always very clearly stated. The earliest decision was in a New York case,2 an action for the price of a sulky built to order by the plaintiff for the defendant and refused when tendered by the plaintiff, who thereupon said he would leave it with a third person and accordingly did so. In allowing the plaintiff to recover the full price the court relied on early cases under the Statute of Frauds. In these early cases it was held that such a contract as the one in suit was a contract not of sale but for work and labor. This being true, the court held as a consequence that though the plaintiff did not recover the price directly, as for goods sold, the amount of recovery should be, nevertheless, fixed by the price, since that was the agreed value of the labor. The only way in which this reasoning can be answered in a wholly satisfactory way is by confessing that the authorities, under the Statute of Frauds, which have held that a contract for goods to be made to order is not a contract of sale but a contract for work and labor, are erroneous. This is now admitted in England, and the early decisions are overruled. But in many states in this country it is still law that where goods are to be made to order, which are of a special kind differing from those ordinarily made by the seller, the contract is not one of sale, but for work and labor; 5 and in

1 Habeler v. Rogers, 131 Fed. Rep. 43, 45 (C. C. A.); Kinkead v. Lynch, 132 Fed. Rep. 692; Magnes v. Sioux City Seed Co., 14 Colo. App. 219; Darby v. Hall, 3 Pennewill (Del.) 25; Ames v. Moir, 130 Ill. 582; Trunkey v. Hedstrom, 131 Ill. 204, 209; Osgood v. Skinner, 211 Ill. 229; Comstock v. Price, 103 Ill. App. 19; Dwiggins v. Clark, 94 Ind. 49; Rastetter v. Reynolds, 160 Ind. 133; Moline Scale Co. v. Beed, 52 Ia. 307; McCormick Machine Co. v. Markert, 107 Ia. 340; Bell v. Offutt, 10 Bush (Ky.) 632, 639; Singer Mfg. Co. v. Cheney, 21 Ky. L. Rep. 550; Ozark Lumber Co. v. Chicago, 51 Mo. App. 555; Gordon v. Norris, 49 N. H. 376; Black River Lumber Co. v. Warner, 93 Mo. 374; Bement v. Smith, 15 Wend. (N. Y.) 493; Dustan v. McAndrew, 44 N. Y. 72, 78; Atkinson v. Truesdell, 127 N. Y. 230; Van Brocklen v. Smeallie, 140 N. Y. 70; Craigin v. O'Connell, 50 N. Y. App. Div. 339; 169 N. Y. 573; Levy v. Glassberg, 92 N. Y. Supp. 50 (Sup. Ct., App. Term); Shawhan v. Van Nest, 25 Oh. St. 490; Rhodes v. Mooney, 43 Oh. St. 421, 425; Smith v. Wheeler, 7.Ore. 49; Reynolds v. Callender, 19 Pa. Super. Ct. 610; Ballentine v. Robinson, 46 Pa. St. 177; Pratt v. S. Freeman & Sons Co., 115 Wis. 648.

2 Bement v. Smith, 15 Wend. (N. Y.) 493 (1836).

3 Towers v. Osborne, Str. 506; Crookshank v. Burrell, 18 Johns. (N. Y.) 58.

4 Lee v. Griffin, 1 B. & S. 272.

5 Flynn v. Dougherty, 91 Cal. 669; Atwater v. Hough, 29 Conn. 508; Cason v. Cheely, 6 Ga. 554; Yoe v. Newcomb, 33 Ind. App. 615; Edwards v. Grand Trunk Ry. Co., 48 Me. 379; Crockett v. Scribner, 64 Me. 447; Mixer v. Howarth, 21 Pick. (Mass.)