58 SOUTHWESTERN REPORTER, VOL. 15. as LEWIS, J. The cause of action stated in the petition of appellants is, in substance: That, as partners doing business under the firm name of Chambers & Marshall, they made a contract with one Wise, whereby he sold, and agreed to deliver to them in good order during delivery season of 1877, his half of a crop of tobacco, then undivided, which he had raised on shares upon the farm of appellee; in consideration whereof they promised to pay on delivery at the rate of five cents per pound. That they were ready, able, and willing to receive and pay for the tobacco as and at the time agreed on, and demanded of him compliance with the contract; but he had already delivered it to appellee and Newton Cooper, tobacco dealers, and then notified appellants he would not deliver it to them, and they might treat the contract broken and at an end. That appellee knew of the existence of said contract, but maliciously, on account of his personal ill will to Chambers, one of appellants, and with design to injure by depriving them of profit on their purchase, and to benefit himself by becoming purchaser in their stead, advised and procured Wise, who would else have kept and performed, to break the contract, whereby they have -. That he (Wise) been damaged $was at the time known by appellee to be, and now is, insolvent; so, being without other redress, they bring this action. Appellee is alleged to have been actuated to do the act complained of by ill will to one of appellants only, which, however, to avoid confusion we will treat as a malicious intent to injure both; and also by a design to benefit himself by becoming purchaser of the tobacco for the firm of which he was a member. And thus two questions of law arise on demurrer to the petition: First, whether one party to a contract can maintain an against a person who has maliciously advised and procured the other party to break it; second, whether an act lawful in itself can become actionable solely because it was done maliciously. action As appellee, being no party to the contract, did not, nor could, himself break it, his wrong, if any, was in advising and procuring the equivalent of canceling, and Consequently, inducing Wise to do so. while the remedy of appellants against " of Lumley v. Gye was in tort, the com- We have been referred to some American doer or others, may be an invasion of the legal rights of such person. Cooley on Torts, 497, agreeing with Justice COLERIDGE, says: "An action cannot, in general, be maintained for inducing a third person to break his contract with the plaintiff; the consequence, after all, being only a broken contract, for which the party to the contract may have his remedy by suing upon it." And it seems to us that the rule harmonizes with both principle and policy, and to it there can be safely and consistently made but two classes of exception; for, as to make a contract binding, the parties must be competent to contract and do so freely, the natural and reasonable presumption is that each party enters into it with his eyes open, and purpose and expectation of looking alone to the other for redress in case of breach by him. One such exception was made by the English statute of laborers to apply where apprentices, menial servants, and others, whose sole means of living was manual labor, were enticed to leave their employment, and may be applied in this state in virtue of and as regulated by our own statutes. The other arises where a person has been procured against his will, or contrary to his purpose, by coercion or deception of another to break his contract. Green v. Button, 2 Cromp. M. & R. 707; Ashley v. Dixon, 48 N. Y. 430. But as Wise was not induced by either force or fraud to break the contract in question, it must be regarded as having been done of his own will, and for his own benefit. And his voluntary and distinct act, not that of appellee, being the proximate cause of damage to appellants, they, according to a familiar and reasonable principle of law, cannot seek redress elsewhere than from him. That an action on the case will lie whenever there is concurrence of actual damage to the plaintiff, and wrongful act by the defendant, is a truism, yet, unexplained, misleading. The act must not only be the direct cause of the damage, but a legal wrong, else it is damnum absque injuria. But whether a legal wrong has been done for which the law affords reparation in damages depends upon the nature of the act, and cannot be consistently or fitly made to depend upon the motive of the person doing it; for an act may be tortious, and consequently actionable, though not malicious, nor even willful. If it was not so, there could be no reparation for an act of pure negligence, though ever hurtful in its effects. And it is just as plain that an act which does not of itself amount to a legal wrong, without, cannot be made so by, a bad motive accompanying it; for there is no logical process by which a lawful act, done in a lawful way, can be transformed or not into a legal wrong according to the motive, bad or good, actuating the person doing it. The proposition is clearly and forcibly stated in Jenkins v. Fowler, 24 Pa. St. 308, as foltows: "Malicious motives make a bad case worse, but they cannot make that wrong which in its own essence is lawful. Where a creditor who has a just debt brings a suit or issues execution, though he does it SO out of pure enmity to the debtor, he is safe. In slander, if the defendant proves the words spoken to be true, his intention to injure the plaintiff by proclaiming his infamy will not defeat justification. One who prosecutes another for a crime need not show he was actuated by correct feelings, if he can prove that there was good reason to believe the charge was well founded. In short, any transaction which would be lawful if the parties were friends cannot be made the foundation of an action merely because they happen to be enemies. As long as a man keeps himself within the law by doing no act which violates it, we must leave his motives to Him who searches hearts." In Frazier v. Brown, 12 Ohio St. 294, the cause of action stated was diversion, with malicious intent, by the defendant of subterraneous water on his own land from adjoining land of the plaintiff; but it was held there could be no recovery, because, as said by the court, “the act done, to-wit, the using of one's own property, being lawful in itself, the motive with which it is done,-whatever it may be as a matter of conscience,is, in law a matter of indifference." In Chatfield v. Wilson, 28 Vt. 49, the action was for the same cause substantially, and the language of the court was: "An act legal in itself, and which violates no right, cannot be made actionable on account of the motive which induced it." In Mahan v. Brown, 13 Wend. 261, the complaint was that the defendant wantonly and maliciously erected on his own premises a high fence near to and in front of plaintiff's window, without benefit to himself, and for the sole purpose of annoying the plaintiff, thereby rendering her house uninhabitable. But it was held the action would not lie, because, no legal right of the plaintiff having been injured, the defendant had not so used his property as to injure another, and, whether his motive was good or bad, she had no legal cause of complaint. To the same effect is the decided weight of authority in the United States. Adler v. Fenton, 24 How. 412; Phelps v. Nowlen, 72 N. Y. 39; Benjamin v. Wheeler, 8 Gray, 410; Iron Co. v. Uhler, 75 Pa. St. 467; Plank-Road Co. v. Douglass, 9 N. Y. 4-14. Upon neither principle nor authority could this action have been maintained if the same thing it is complained appellee did had been done by a person on friendly terms with appellant Chambers, or by a stranger, though he might have profited by the purchase to the damage of appellants; for competition in every branch of business being not only lawful, but necessary and proper, no person should, or can upon principle, be made liable in damages for buying what may be freely offered for sale by a person having the right to sell, if done without fraud, merely because there may be a pre-existing contract between the seller and a rival in business, for a breach of which each party may have his legal remedy against the other. Nor, the right to buy existing, should it make any difference, in a legal aspect, what motive influenced the purchaser. Competition frequently engenders, not only a spirit of rivalry, but enmity; and, if the motive in 60 SOUTHWESTERN REPORTER, VOL. 15. fluencing every business transaction that 99 BOULIER et al. v. MACAULEY. INDUCING ACTRESS TO BREAK CONTRACT-LIA- Under Gen. St. Ky. c. 29. art. 14, § 13, providing that any person who willfully entices another to break a contract of service shall be liable to the person injured, a theatrical manager who maliciously induces an actress to break her engagement at another theater, and to perform at his own, is not liable to the manager of the first theater. Appeal from court of common pleas of Jefferson. "To be officially reported." Kohn, Baird & Speckert, for appellants. E. F. Trabue, for appellee. LEWIS, J. The cause of action stated in the petition of appellants is, in substance, that, being owners of Masonic Temple Theater in Louisville, they, in 1888, made a contract with H. E. Abbey, manager of Mary Anderson, a dramatic performer of great reputation, and her company, whereby it was agreed they were to perform there February 25, 26, and 27, 1889, which contract appellants complied with in every respect, having, at great expense, made necessary preparations for, and advertised, the performance. But that appellee, owner of a rival theater, though having notice of the contract, with malicious intent to injure the reputation of appellants, and of their theater as a first-class place of amusement, and their business, wrongfully induced and procured Mary Anderson to refuse to perform at their theater, and made a contract with Abbey, which was carried out, for performance of Mary Anderson and her company at his (appellee's) theater, on the identical days it had been previously agreed they would per. form at the theater of appellants; whereby they were injured in their credit and standing as theatrical managers, and deprived of profits they would have otherwise made, to their damage, etc. Appellee is alleged, according to the plain meaning of the petition, to have done the act complained of, as well with design to benefit himself by securing performance of Mary theater as with malicious intent to injure Anderson and her company at his own appellants. Consequently, two principal questions of law arise on demurrer to the petition-First, whether one party to a contract can maintain an action for da mages against a person who maliciously advised and procured the other party to break it; second, whether an act, lawful in itself, can become actionable solely because it was done maliciously. These two questions were considered and determined by this court in the case of Chambers v. Baldwin, ante, 57, (decided at the present term,) and a rediscussion of them is therefore unnecessary. The cause of that action, as stated in the petition, was that, the one Wise for sale and delivery of his crop plaintiffs having made a contract with of tobacco at a price agreed on, defendant, being also a tobacco dealer, malitheir purciously, and with design to injure, by depriving them of profit on chase, and to benefit himself by becoming purchaser in their stead, advised and procured Wise, who would else have kept and however, contended for appellant that the | performed, to break the contract. It is, principle upon which the leading English case of Lumley v. Gye, 2 El. & Bl. 228, was decided, is correct, and applicable to this. The complaint in that action was that the defendant maliciously en ticed and procured a person, under a binding contract to perform at plaintiff's theater, to refuse to perform, and abandon the contract; and, in one count of the declaration, there was an allegation, not made in this case, that the person had agreed to perform as, and had become, and was, plaintiff's dramatic artist, when so procured to abandon the employment. But it is proper to say no distinction was taken by the court between the contract regarded as merely executory and as being in course of execution; the majority of judges deciding the action would lie in either case, while Justice COLERIDGE, who delivered a dissenting opinion, contended that it would lie in neither. Unlike this case, the act made cause of action was there alleged to have been committed with no other than a malicious motive, and, inferentially, for no other than a purpose to injure the plaintiff. But the dissimilarity is not material, because, if the principle by which the decision of that case was controlled can be applied here, as there, without qualification or condition, this action will lie. The theory upon which Lumley v. Gye seems to have been decided is that remedies given by the common law in such cases as that are not limited to any description of servants or service, and the action was maintained upon the principle stated in Comyn's Digest, that "in all cases where a man has a temporal loss or damage by the wrong of another he may have an action upon the case to be repaired in damages." Title "Action Upon the Case" (A). But it was held in Chambers v. Baldwin that, to maintain an action upon the case at common law, the act upon which it is founded must not only amount to a legal wrong, but be the proximate cause of the loss or damage sustained, and that upon principle, and according to decided weight of authority in the United States, whether a legal wrong has been done or not depends upon the nature and quality of the act, not upon the motive of the person doing it; the following clear and forcible statement of the proposition in Jenkins v. Fowler, 24 Pa. St. 308, being quoted, and approved: "Malicious motives make a bad case worse, but they cannot make that wrong which, in its own essence, is lawful." 66 In reference to the other of the two main questions involved, it was there held that, as the reasonable and necessary presumption in every case of a binding contract is that each party enters into it with his eyes open, and purpose and expectation of looking alone to the other party for redress, in case of breach by him, the following rule stated in Cooley on Torts, 497, and previously contended for by Justice COLERIDGE in Lumley v. Gye, is correct on both principle and policy: An action cannot, in general, be maintained for inducing a third person to break his contract; the consequence after all being only a broken contract, for which the party to the contract may have his remedy by suing upon it." And it was further held that there can be consistently and safely but two classes of exceptions to that rule. One was made by the English statute of laborers, 25 Edw. III., to apply when apprentices, menial servants, and others, whose sole means of living was by manual labor, were enticed to leave their employment, and may be applied in this state in virtue of, and as regulated by, our own statutes; the other arises when one party to a contract has been procured against his will, or contrary to his purpose, by coercion or deception of a person, to break it, to the damage of the other party. If the opinion of this court in that case is to stand, it does not make any difference whether appellee was actuated by merely malicious motive to injure appellants, or by that, and the additional one of personal benefit. And it is therefore necessary to inquire whether the facts stated bring this case within the first-named exception to the rule that only a party to a contract can be sued for its breach; the other exception manifestly having no application. But, of course, the question whether the act was in itself a legal wrong is always in such case vital and precedent. It is not the policy of the law to restrict or discourage competition in any business or occupation, whether concerning property or personal service, there being no good reason for making more stringent regulations, in respect to the latter, except where some one of the domestic relations exist, than the former; for if, in order to leave sale and exchange of property free and unrestrained, a person may lawfully, and without legal inquisition of his motive, buy what another offers for sale, and has right to sell, it is no less just and expedient that, in order to have fair remuneration for labor, a person be allowed to hire the service of any one sui juris who offers to be hired. And, in every case, the employer should be required to look alone to the person employed for breach of the contract, just as the seller must look to the buyer, and the creditor to the debtor, in default of payment; for, to enforce a doctrine making the hirer responsible for breach by the person hired of a previous contract with another involves legal recognition of personal dominion, bordering on pure servitude, which is neither in harmony with our form of government nor well for those who labor for subsistence. And such doctrine can be applied in this state only when expressly provided by statute, and, being arbitrary, should be extended no further than was clearly intended by the legislature. Chapter 74, Gen. St., prescribes rights and duties growing out of the relation of master and apprentice, and article 2 thereof provides, as was done by the statute of 1798, that persons who come into this state under a contract to serve another in any occupation shall be compelled to perform the contract specifically during the time thereof, not exceeding seven years. But the only existing statutory provision which authorizes another than a party to it to sue for a breach of contract is section 13, art. 14, c. 29, as follows: "If any person shall willfully entice, persuade, or otherwise influence any person, or persons, who have contracted to labor for a fixed period of time, to abandon such contract before such period of service shall have expired, without the consent of the employer, shall be fined not exceeding fifty dollars, and be liable to the party injured for such damage as he or they may have sustained." We are satisfied that the statute, passed soon after slavery ceased to exist in this state, and consequent change of the labor system took place, was intended to apply principally to farm laborers; and to extend application of it so as to include contracts for performance of dramatic artists would be not only fraught with much injustice, unnecessary strife, and litigation, but is entirely beyond the intended scope and operation of it. In our opinion, the only remedy appellants have is against Abbey, who made, and whose voluntary breach of, the contract, was the direct cause of the alleged loss and damage, and the action cannot be maintained against appellee. Judgment affirmed. VANOVER V. MURPHY'S ADM'R. (Court of Appeals of Kentucky. Jan. 27, 1891.) SIGNATURE BY MAKING MARK-ATTESTING WIT NESS. Civil Code Ky. § 732, subd. 7, declares that "a signature includes a mark by or for a person who cannot write, if his name be subscribed to an instrument, and witnessed by a person who near thereto writes his name as a witness." Held, that failure to have a note, which is executed by the maker's making his mark, attested by a subscribing witness, does not render the note void, but requires actual proof of the execution. Appeal from circuit court, Daviess county. "Not to be officially reported." Sweeney, Ellis & Sweeney, for appellant. Weir, Weir & Walker, for appellee. PRYOR, J. The appellant, Vanover, sold by title bond to one Chapman a tract of land for $1,100, evidenced by notes pay able at stipulated periods. The appellant was indebted to Bryan, and assigned to him in payment of the indebtedness one of the land notes. Bryan, being indebted to Murphy, placed this land note in his hands as collateral security for the payment of the debt. After this had been done, the contract between Chapman and Vanover for the sale of the land was rescinded, and the title bond surrendered. The appellant had paid on this land note $75, while in the hands of Murphy, and Murphy surrendered the note to Vanover, that he might deliver it to Chapman, as the land sale had been rescinded, aud in lieu thereof executed to Murphy this note: "One day after date I promise to pay Matthew Murphy one hundred and ninetytwo dollars and twenty-six cents, with 6 per cent interest, balance on land note. his Eli × VANOVER." The note is dated June mark 8, 1882. Murphy being dead, his admin. istrator brought this action in equity to enforce his lien on the land that Vanover had taken back from Chapman, alleging that such was the agreement. The appellant filed an answer, pleading that he had paid $100 on the note instead of $75, and denying that he ever executed the note sued on, but admitting that he did execute a note for $200 to Murphy, that was accepted by the latter in lieu of the Chapman note, and that Murphy agreed to look to the appellant alone for the debt, and retained no lien whatever on the land by agreement or otherwise. The administrator of Murphy swears that he saw the appellant in regard to this note, and told him its amount, and the latter stated that he would try and make arrangements to pay it. Dr. Bryan shows the manner in which Murphy became the holder of the note, and there can be no doubt but what the note in controversy was executed by Vanover. The appellant insists, however, that the note is not his act and deed, and that the signature, by the mark merely, evidences no obligation, even if made by him. He refers to subsection 7, § 732, Civil Code, by which "a signature includes a mark by or for a person who cannot write, if his name be subscribed to an instrument, and witnessed by a person who near thereto writes his name as a witness." This note is not attested, but if the mark was really made by the obligor and proven, its validity as a written obligation necessarily follows. In the one case it proves itself, if the plea of non est factum is not made, and where there is no attesting witness other proof will be required of its execution. It is true the plea of non est factum places the burden on the obligee whenever a signature, made in either mode, is denied; but the mere presentation of a note, with a mark only, is not evidence of its validity, unless attested as directed by the Code, but when proven to have been made is as valid as any other signature. See Maupin v. Berkley, MS. opinion, (filed February 7, 1882.) Vanover was insolvent. Murphy, the obligee, was a business Not reported. man, and it is scarcely to be presumed that he would have relinquished his lien or debt already secured, and accepted in lieu of it the note of one insolvent; besides, the whole record shows that the appellant is evading the enforcement of the lien, but is willing to assume the personal liability. We think the judgment below was proper. Judgment affirmed. KELLY V. THUEY et al. (Supreme Court of Missouri. Jan. 19, 1891.) PRINCIPAL AND AGENT - SPECIFIC PERFORMANCE. Where an agent makes an express contract in his own name to purchase land, and to give a deed of trust thereon to secure the unpaid purchase money, he alone can compel specific performance of the contract, though the vendor knew that he was acting for an unnamed principal. Appeal from circuit court, Jackson county; J. H. SLOVER, Judge. Chase & Powell and Karnes, Holmes & Krauthoff, for appellant. Dobson, Douglass & Trimble, for respondent. BLACK, J. This is an action for the specific performance of the following contract, which is dated 16th December, 1885: "Received of D. T. Kelly fifty dollars, being in part payment of the purchase price of fifty-two feet by fifty off the west end of lot No. I agree to make and deliver a good and sufficient warranty deed conveying said premises to said Kelly free of all incumbrances, without delay, and as soon as the abstract of title thereto shall have been examined and approved, at which time said Kelly shall pay to me the sum of nine hundred and fifty dollars in cash, and six hundred and sixty-four dollars the balance of the purchase price he shall pay in three equal annual installments, with 8 per cent. interest, to be secured by deed of trust executed on said property. If I shall fail to convey good title to said premises to said Kelly as aforesaid, then said fifty dollars shall be refunded to him. "BRIDGET X THUEY. James T. Kelly, claiming to be the real purchaser, in due time tendered to Thuey the balance of the cash payment, and offered to perform the contract by executing his notes and deed of trust for the deferred payments. Two or three days after the execution of the contract, Thuey sold and conveyed the entire lot to the defendant Bush, who purchased with full knowledge of the outstanding contract. 1. One defense is that the contract was altered by inserting the words "six hundred and sixty-four dollars" after it had been executed; but the proof does not sustain the averment. Indeed, it is very clear that the words were inserted by way of interlineation before the contract was executed. 2. It is again insisted that D. T. Kelly procured the contract by false representations. The evidence shows that the lot |