9 tent ourselves with asserting the general relation as a member of society, justifying such act as a natural incident or outgrowth of ordinary neighborly or social intercourse. But, according to the authorities generally, such general relation seems regarded as insufficient, and some special relation to be necessary, at any rate, when the act of inducing is that of a combination as distinguished from a mere individual,1o and committed with malice, that is, malice in fact.11 It seems, however, that, in the absence of proof to the contrary, the existence of a specific relation sufficient to justify the act will be readily, even if not necessarily presumed.12 8 This view seems fully sustained by Boyson v. Thorn, 98 Cal. 578; 33 Pac. 492; 21 L. R. A. 233 (1893), which, although a case of inducing to break a contract, seems a fortiori applicable to the case of inducing not to deal. Thus in Transportation Co. v. Standard Oil Co., 50 W. Va. 611, 623; 40 S. E. 591, 596; 56 L. R. A. 804, 811; 88 Am. St. Rep. 895 (1902), a case of inducing not to deal with a corporation engaged in the business of transporting oil, where it did not appear that "the defendants were engaged in the business of buying, refining and transporting oil as competitors with the plaintiff" so as to "present a justification for their action." So it was held in Delz v. Winfree, 80 Tex. 400; 16 S. W. 111; 26 Am. St. Rep. 755 (1891), actionable for a combination of cattle dealers to induce others not to sell to a butcher, it appearing that their interference with his business was not to serve any legitimate purpose of their own, but was wanton and malicious, causing pecuniary loss to him, as they intended. Here the relation of the defendants does not 11 There is a large possible appear; but compare subsequent decision. See § 21. So of a combination to induce others not to patronize a hotel keeper, the only motive being revenge on account of acts done by such hotel keeper as a public official. Webb v. Drake, 52 La. Ann. 290; 26 So. 791 (1899; see § 33). So in Ertz v. Produce Exchange, 79 Minn. 140; 81 N. W. 737; 48 L. R. A. 90; 79 Am. St. Rep. 433 (1900), it was said that it did not appear that the parties to the combination "had any legitimate interests to protect by their alleged combination." It would seem, however, on the facts that their acts might have been justified as incident to the relation of trade competitor. See § 34. 10 See § 23. See Mills v. U. S. Printing Co., 99 App. D. 605, 610; 91 N. Y. Suppl. 185, 188 (1904). 11 See § 22. 12 Thus, in Collins v. American News Co., 34 Misc. 260; 69 N. Y. Suppl. 638 (1901); affirmed in 68 App. D. 639; 74 N. Y. Suppl. 1123 (1902), where the relation proved or presumed was that of trade competitor. variety in such special relations. 13 Those of trade competitor and of employer and employee will hereafter be considered each in its proper connection. § 21. Relation among body of tradesmen desiring protection against delinquent debtors.-The interest common to a body of tradesmen to protect themselves against delinquent debtors has been regarded as sufficient to sustain an agreement among the members of such a body not to deal with a person indebted to any one of their number. 14 Carrying out such an agreement commonly involves a rather extensive circulation of the fact of such indebtedness,15 and the existence of the relation above 13 See, for instance, Guethler v. Altman, 26 Ind. App. 587; 60 N. E. 355; 84 Am. St. Rep. 313 (1901), where no action was held to lie for inducing school children not to patronize a certain dealer. The relation to the children of those so inducing them, was that of members of a school board and a superintendent and teacher employed by such board, the court saying that "it was proper for the school authorities to make such reasonable rules and regulations as were necessary for the discipline, government and management of the school." 14 Delz v. Winfree, 6 Tex. Civ. App. 11; 25 S. W. 50 (1894; as to former decision, see § 20): Brewster v. Miller, 101 Ky. 368; 41 S. W. 301; 38 L. R. A. 505 (1897); Woodhouse v. Powles, 43 Wash. 617; 86 Pac. 1063; 8 L. R. A. N. S. 783; 117 Am. St. Rep. 1079 (1906). To similar effect, Schulten v. Bavarian Brewing Co., 96 Ky. 224; 28 S. W. 504 (1894). In Heim Brewing Co. v. Belinder, 97 Mo. App. 64; 71 S. W. 691 (1902), such an agreement was held within the prohibition of the Missouri anti-trust act (see § 220). It was here intimated, however (97 Mo. App. 78; 71 S. W. 696) that a combination designed for protection against dishonest debtors might have been differently regarded, mere failure to pay not being considered as a necessary indication of dishonesty. See Brewster v. Miller distinguished in Brown V. Jacobs Pharmacy Co., 115 Ga. 429, 451; 41 S. E. 553, 562; 57 L. R. A. 547, 558; 90 Am. St. Rep. 126 (1902). See article in 39 Am. Law Reg. N. S. 691 (1900) by F. B. Bracken. From the prohibition of Colo. R. S. (1908), §§ 396 et seq., against blacklisting, etc. (see § 43), is expressly excepted (§ 401) the case of "any merchant or professional man, or any association of the same, maintaining or publishing a list concerning the credit or financial responsibility of any person or persons dealing with him or them on credit." Compare as to blacklisting, § 43. 15 In Reynolds v. Plumbers' Protective Assoc., 30 Misc. 709; 63 N. Y. Suppl. 303 (Supm. Ct., Tr. T., 1900), it was held not unlawful to enforce a by-law of a corporation providing that in case of failure of a debtor of a member to settle with stated is no protection against liability for making a false statement of such indebtedness,16 though there may be an ex the member or present to the corporation some reason for not doing so, or submit the controversy to arbitration, the association should send each member a statement that the debtor's name had been entered on its books and that the members were prohibited from selling him goods except for cash before delivery, until he should have settled. The decision was based on the doctrine of privileged communications, instead of, as it well might have been, on the existence of the relation stated in the text. In Hartnett v. Plumbers' Supply Assoc., 169 Mass. 229; 47 N. E. 1002; 38 L. R. A. 194 (1897), the enforcement of a by-law under conditions similar to those existing in Reynolds v. Plumbers' Protective Assoc., was held actionable, a distinction being taken between action of the corporation itself and action of the individual members thereof. Furthermore, such action of the corporation was held not authorized by any of the statutes under which it existed, so that it constituted the exercise of "a franchise or privilege not conferred by law." And on this latter ground the decision was distinguished in Reynolds v. Plumbers' Protective Assoc., supra. As to application of prohibition of N. Y. Penal Code, § 559, against sending letter "with intent thereby to cause annoyance," to case of sending letter to delinquent debtor, see People v. Loveless, 84 N. Y. Suppl. 1114 (N. Y. Gen. Sess., 1903). 16 Weston v. Barnicoat, 175 Mass. 454; 56 N. E. 619; 49 L. R. A. 612 (1900), where was sustained an action against a member of an as sociation for falsely reporting the plaintiff as refusing or neglecting to pay his honest debts, whereupon the plaintiff's name was placed upon the "blacklist" of the association and he was "boycotted" by the members. To similar effect, McIntyre v. Weinert, 195 Pa. St. 52; 45 Atl. 666 (1900); John Brenner Brewing Co. v. McGill, 62 S. W. 722 (Ky. Ct. App., 1901); Trapp v. DuBois, 76 App. D. 314; 78 N. Y. Suppl. 505 (1902); Werner v. Vogeli, 10 Kan. App. 536; 63 Pac. 607 (1901). See also Schulten v. Bavarian Brewing Co., supra; Windisch-Muhlhauser Brewing Co. v. Bacon, 53 S. W. 520 (Ky. Ct. App., 1899); Woodhouse v. Powles, 43 Wash. 617; 86 Pac. 1063; 8 L. R. A. N. S. 783; 117 Am. St. Rep. 1079 (1906). In Western Union Tel. Co. v. Pritchett, 108 Ga. 411; 34 S. E. 216 (1899), in pursuance of an agreement between two telegraph companies whereby each furnished to the other information concerning the standing and credit of all persons deemed by it to be of questionable responsibility in business transactions, a person was "falsely and maliciously blacklisted in writing as a delinquent debtor who would not pay his debts and as lacking in honesty to do so." The court in holding this actionable said that the agreement in question was "not essential to the protection or preservation of any right connected with any matter in which either company had an interest" and that the communication in question was not within the meaning of a statute declaring privileged "statements made with the ception in case of a false statement made in good faith, in the belief that it is true.17 § 22. Malicious intent.-According to what has already been said, if inducing refusal to deal be not inherently legal, the test of legality is whether the act was the natural incident or outgrowth of some lawful relation, and in the view already taken malice or malicious intent should be entirely ignored as a test of legality,18 though there is observable a tendency to apply such test. Thus it has been broadly stated as "the result of the authorities" that "a combination by two or more persons to induce others not to deal with a particular individual, or enter into contracts with him, if done with the inten tion of injuring him, is an actionable wrong if damage results to him therefrom.” 19 bona fide intent on the part of the speaker to protect his own interest in a matter where it is concerned." 17 Trapp V. Du Bois, supra. Thus it was said in Weston v. Bar nicoat, supra: "We do not mean to say that the statement might not have been privileged if believed to be true and if the purpose of the association and publication was, and was understood to be, merely to give information to the members concerning the credit of people with whom they might deal." See also, as to when such publication is privileged, Harper v. Hamilton Retail Groc. Assoc., 32 Ont. Rep. 295 (1900). 18 Locker v. American Tobacco Co., 121 App. D. 443; 106 N. Y. Suppl. 115 (1907). 19 Lopes, J., in Temperton v. Russell, 1 Q. B. (1893), 715, 731. Even in Toledo, Ann Arbor, etc., Ry. Co. v. Pennsylvania Co., 54 Fed. 730; 19 L. R. A. 387 (C. C. Ohio, 1893), a conspicuous illustration of the application of the doctrine that an act entirely lawful, if done by a single individual, may be unlawful by reason of being done in pursuance of a combination of individuals to do the same thing, it seems to be held that there is nothing unlawful in the mere combination, apart from the question of intent. Thus, it was said (p. 738): "Ordinarily, when such a combination of persons does not use violence, actual or threatened, to accomplish their purpose, it is diffi cult to point out with clearness the illegal means or end which makes the combination an unlawful conspiracy; for it is generally lawful for the combiners to withdraw their intercourse and its benefits from any person, and to announce their intention of doing so, and it is equally lawful for the others, of their own motion, to do that which the combiners seek to compel them to do. Such combinations are said to be unlawful conspiracies, though the acts in themselves and considered singly are innocent, when the acts are done with malice; i. e., with the intention to injure another § 23. Inducing refusal to deal, in pursuance of combination.— The question of the legality of inducing refusal to deal has more commonly arisen in case of the acts of combinations than of mere individuals. But, as with malice or malicious intent, so in the view already taken, the element of combination should be entirely ignored as a test of liability, that is to say, it is entirely immaterial whether or not the act of inducing refusal to deal was in pursuance of a combination to do such act. Nevertheless here, too, there is observable a tendency to apply such test.2 20 without lawful excuse." This language was applied in Barr v. Essex Trades Council, 53 N. J. Eq. 101, 116; 30 Atl. 881, 886 (1894). In Hopkins v. Oxley Stave Co., 83 Fed. 912, 921; 28 C. C. A. 99, 108 (8th C., 1897), a case of a threatened boycott by employees, the court called attention to the fact that one object was "to deprive the public at large of the benefits to be derived from a labor-saving machine, which seems to have been one of great utility." 20 An illustration of such tendency is Thomas v. Cincinnati, N. O. & T. P. Ry. Co., 62 Fed. 803, 821 (C. C. Ohio, 1894), where a boycott of the Pullman Palace Car Company by railroad employees was declared illegal, not merely under the general law of boycotts, but on account of the gigantic character of a combination relating to what was "necessary to life and health and comfort of the people of this country," the court saying (p. 807): "As the lodges of the American Railway Union extended from the Allegheny Mountains to the Pacific coast, it will be seen that it was contemplated by those engaged in carrying out this plan that, in case of a refusal of the railway companies to join the union in its attack upon the Pullman Company, there should be a paralysis of all railway traffic of every kind throughout that vast territory traversed by lines using Pullman cars." In Heim Brewing Co. v. Belinder, 97 Mo. App. 64, 69; 71 S. W. 691, 692 (1902), where was held illegal the combination to refuse to sell, there under consideration, it was said, with reference to the asserted right to refuse to sell: "The argument properly applied is disastrous to those who advance it. Any one may exercise a choice as to whom he will sell his goods, but he cannot enter into a contract whereby he binds himself not to sell, for in such instance he barters away his right of choice and destroys the very right he claims the privilege of exercising. After entering upon such agreement he is no longer a free agent." The fallacy of such reasoning scarcely needs pointing out. Of course, a person, while free to do or not to do a certain thing, may, generally speaking, enter into a binding con- i tract not to do or to do such thing, as the case may be. I am, generally speaking, free not to pay a certain person a sum of money on a |