Rep. 399 (1906); Straus v. American Publishers' Assoc., 177 N. Y. 473; 69 N. E. 1107; 64 L. R. A. 701; 101 Am. St. Rep. 819 (1904); Locker v. American Tobacco Co., 121 App. D. 443; 106 N. Y. Suppl. 115 (1907).

In Olive v. Van Patten, 7 Tex. Civ. App. 630; 25 S. W. 428 (1894), the decision in Delz v. Winfree, 80 Tex. 400; 16 S. W. 111; 26 Am. St. Rep. 755 (1891), was followed in sustaining an action by a lumber dealer against an association of such, it being alleged that, because of his refusal to join such association, they maliciously distributed circulars asking that patronage be withdrawn from him until he agreed not to sell to others than dealers, thereby influencing others not to Ideal with him.

To the same class of decisions seems referable Dueber Watch-Case Manuf. Co. v. Howard Watch & Clock Co., 3 Misc. 582; 24 N. Y. Suppl. 647 (Supm. Ct., Sp. T., 1893). Compare People v. Duke, 19 Misc. 292 (N. Y. Co. Gen. Sess., 1897).

In Bailey v. Master Plumbers, 103 Tenn. 99; 52 N. W. 853; 46 L. R. A. 561 (1899), were disapproved, as creating an illegal restriction upon competition, by-laws similar in effect to the agreement under consideration in Macauley v. Tierney, supra, though the point was not directly involved. In Walsh v. Association of Master Plumbers, 97 Mo. App. 280; 71 S. W. 455 (1902), a plumber was held to have a cause of action against an association of

plumbers, and against a number of dealers in plumbers' supplies, composing all those engaged in selling and manufacturing such supplies in St. Louis, because of carrying into effect an agreement by which such dealers were not to sell to any plumber without his first becoming a member of such association.

In Purington v. Hinchliff, 219 Ill. 159; 76 N. E. 47; 2 L. R. A. N. S. 824; 109 Am. St. Rep. 523 (1905); affirming 120 Ill. App. 523 (1905), was sustained an action by a manufacturer of bricks against an association of such manufacturers and an association of those engaged in constructing brick and mason work, and purchasing and obtaining supplies of brick, for carrying into effect an agreement by which brick was to be purchased only from members of the association of manufacturers.

In Master Builders' Assoc. v. Domascio, 16 Colo. App. 25, 32; 63 Pac. 782, 785 (1901), it was said that the decisions here discussed "all expressly turn upon the fact that there was coercion, intimidation, or malicious threats to do an unlawful injury."

As to the necessity of showing that injury has actually resulted from a boycott by a trade competitor, see Downes v. Bennett, 63 Kan. 653; 66 Pac. 623; 55 L. R. A. 560; 88 Am. St. Rep. 256 (1901), where the enforcement by an association of traders of a by-law providing that such association would not recognize any yard trader not a member of such association, was held to

furnish no right of action to yard traders not such members. This on the ground that such traders had not a sufficient interest in the subject matter of the controversy, it not appearing that the members of the association would trade with the plaintiffs, even if such by-law were abrogated. The court said: "How can they (the plaintiffs) prove that among the hundreds of dealers on the market and the hundreds of daily transactions they have among themselves, an appreciable share of the denied trade would fall to them ?"

By Ind. Stat. (Burns' Ed., 1908), §§ 3884 et seq., is imposed civil and criminal liability for making any contract, etc., "to induce, procure or prevent any wholesale or retail dealer in or manufacturer of merchandise, or of supplies or of material or article intended for trade or used by any mechanic, artisan or dealer in the prosecution of his business, from selling such supplies to any dealer or to any mechanic or artisan"; so upon any such dealer or manufacturer who shall be a party to such contract, etc., or shall upon the request of a party thereto refuse to sell to one requiring them in the prosecution of his business, for the reason that he is not a member of a combination or association.

Some of the anti-trust acts contain prohibitions against boycotts of trade competitors. It would appear that sometimes the inclusion of such prohibitions is based on a lack of comprehension of the funda

15

mental distinction between combinations producing private and those producing public injury. See Ind. Stat. (Burns' Ed., 1908), §§ 388992 (see § 210); Mo. R. S. (1906), § 8978 (see § 220); S. C. L. 1902, c. 574 (see § 229); Tex. L. 1899, c. 146 (see § 232). In Nebraska (see § 222) the definition of a trust includes a combination to fix prices "with the intent to prevent others from conducting or carrying on the same business or selling or trafficking in the same article, use or merchandise."

15 It seems to have been regarded as sufficient, in Chambers v. Baldwin, 91 Ky. 121; 15 S. W. 57; 11 L. R. A. 545; 34 Am. St. Rep. 165 (1891), where a trade competitor caused the breach of a contract to sell goods, with the design of himself becoming purchaser, and the decision is in part at least expressly based on the ground that the act was in the course of trade competition. The court said (91 Ky. 130; 15 S. W. 59; 11 L. R. A. 550; 34 Am. St. Rep. 170): "If the motive influencing every business transaction that may result in injury or inconvenience to a business rival was made the test of its legality, litigation and strife would be vexatiously and unnecessarily increased, and the sale and exchange of commodities very much hindered." So in Bourlier v. Macauley, 91 Ky. 135; 15 S. W. 60; 11 L. R. A. 550; 34 Am. St. Rep. 171 (1891), it was held proper for a rival theatrical manager to induce an actress to break her engagement at another

theater for the purpose of performing at his own. Compare Lumley v. Gye, infra. On the same ground is perhaps to be sustained McCann v. Wolff, 28 Mo. App. 447 (1888), where the action was held not maintainable, on the ground that there was neither malice nor fraud. Here the defendant, claiming a commission on a sale of real estate, carried out his threat to break up the sale unless the plaintiff paid him such commission, thus depriving the plaintiff, a real-estate broker who had negotiated the sale, of his commission. It would seem that, according to some authorities, this was a malicious act, though malice was not in terms charged. In Lumley

v. Gye, 2 El. & Bl. 216 (1853), the act of inducement was by a competitor in trade, though no attention was paid by the court to that circumstance. So in Brown Hardware Co. v. Indiana Stove Works, 96 Tex. 453; 73 S. W. 800 (1903); reversing 69 S. W. 805 (Tex. Civ. App., 1902).

But the relation of trade competitor was held insufficient for such purpose, in Beekman v. Marsters, 195 Mass. 205; 80 N. E. 817; 11 L. R. A. N. S. 201; 122 Am. St. Rep. 232 (1907). See also Reynolds v. Davis, 198 Mass. 294; 84 N. E. 457; 17 L. R. A. N. S. 162 (1908). So in Doremus v. Hennessy, 176 Ill. 608; 52 N. E. 924; 43 L. R. A. 797; 68 Am. St. Rep. 203 (1898), where was sustained an action by one engaged in the laundry business for inducing breach of contracts to do laundry work for her. The acts held unlawful were not those of a mere individual, but of an association of laundrymen, the occasion of such action being the refusal of the plaintiff to increase her prices in ac

cordance with the scale fixed by the association. In some instances, at least, the breaking of the contracts was induced by "threats" of destruction of business. In Knickerbocker Ice Co. v. Gardiner Dairy Co., 107 Md. 556; 69 Atl. 405; 16 L. R. A. N. S. 746 (1908), it was held insufficient, it being declared "not lawful, in order to procure the benefit for himself, for one to wrongfully force a party to an existing contract to break it," and a threat "to do an act which would seriously cripple, if not ruin, such party, unless he does break it," was said to be "equivalent to force, as that term is used in this connection." Here was sustained an action for inducing breach by the seller of a contract of sale, such inducing being by a manufacturer from whom the seller purchased, the motive being to induce the buyer to purchase directly from the manufacturer. For the purpose of inducing such breach, the manufacturer threatened to refuse to supply the seller, unless it violated such contract. It was, however, intimated that it would have been otherwise had the manufacturer had the right to compel the seller to break his contract, thus, that if the contract between the manufacturer and the seller prohibited the latter from selling to any customer of the former, and the buyer in question was a customer within the meaning of the contract, it would not necessarily have been wrongful for the manufacturer to refuse to supply the seller for such buyer.

In Gatzow v. Buening, 106 Wis. 1; 81 N. W. 1003; 49 L. R. A. 475; 80 Am. St. Rep. 17 (1900), the decision was based on the seemingly erroneous assumption that any

civil liability results from the existence of a mere restriction upon competition. See § 164. But the real question was whether the existence of the relation of trade competitor justified the action of members of a liverymen's association in seeking to enforce a by-law directed against dealings with liverymen not members of the association. As a result of such action a member violated his agreement to furnish vehicles at a funeral, and under circumstances that made it impossible to obtain others. In other words, the question was whether the

act of breach of contract or of inducing a breach of contract was justifiable as a natural incident or outgrowth of the relation of the members of the association as trade competitors of liverymen hiring for less than association prices. This, the real question, was overlooked and consequently not decided.

As to inducing such breach by fraud, see National Phonograph Co. v. Edison-Bell Co., 1 Ch. D. (1908) 335.

See, on the general subject, article in 15 Harv. Law Rev. 427 (19012) by Bruce Wyman.