jury that the defendant had a right on the 28th day of December, 1891, to rescind the contract offered in evidence in this case, and their verdict must be for the plaintiff. (3) If the jury find for the plaintiff, the measure of damages is the difference between the contract price (threefourths of a cent per bushel, oyster measure) for the number of bushels used during the season commencing September 1, 1891, and ending May 1, 1892, by H. J. McGrath & Co. and H. F. Hemmingway & Co., (211,899 bushels,) and not delivered to the plaintiff, and the market price in Baltimore of similar shells at the date of their delivery to plaintiff according to the contract; and this date of their delivery is to be taken, as to as many of said shells as the jury may believe from the evidence that H. J. McGrath & Co. and H. F. Hemmingway & Co. could, with reasonable effort, put in piles upon the same ground as they had shells piled upon during the previous season, to be the spring and summer (before July 15th) of 1892, and as to the balance of said shells to be the date when they were shucked or used. And the jury may add to the amount so found any sums received by H.J. McGrath for shells sold by him between September 1 and December 28, 1891, (if they shall find that said McGrath received any such sums,) provided the jury further find that the shells so sold had been billed to the plaintiffs, and paid for by them."

The defendant offered four prayers, all of which were rejected by the court. These prayers were as follows: "(1) The defendant prays the court to instruct the jury that, in order to entitle the plaintiff to recover, he must show that he has performed all his part of the contract, or has been prevented from performing it by the defendant. (2) The defendant prays the court to instruct the jury that the offer by the plaintiff of the check given in evidence was not a legal tender, and that the plaintiff is not entitled to rely upon such offer as a compliance by him with his duty to pay according to the contract. (3) The defendant prays the court to instruct the jury that if they shall find from the evidence that the plaintiff executed the contract sued upon, in which contract he agreed that he would on the first of every week, commencing September 7, 1891, pay the defendant one half a cent per bushel for all shells made by him and H. F. Hemmingway & Co. for the previous week, and also agreed that he, the plaintiff, would constantly keep boats at the docks of H. J. McGrath & Co. and H. F. Heminingway & Co., so as to keep the houses clear of shells, and shall also find that the said plaintiff did not pay the defendant in the manner and at the time agreed, and did not constantly keep boats at the docks, so as to keep the houses clear of shells, then their verdict must be for the defendant. (4) The defendant prays the court to instruct the jury that if they shall find from the evidence that at the time when the defendant refused to allow the plaintiff to have any more shells, and the said plaintiff knew that he could get no more shells from the defendant, and shall further find that at that time, name

ly, December 28, 1891, the plaintiff could have gone into the market and purchased shells at the same or less price than he bad agreed to pay the defendant, then they shall find that the plaintiff suffered no damage, and their verdict must be for the defendant."

Argued before ALVEY, C. J., and ROBINSON, BRYAN, IRVING, McSHERRY, FOWLER, PAGE, and ROBERTS, JJ.

Thos. Ireland Elliott, for appellant. A. S. Niles and Oscar Wolff, for appellee.

ROBINSON, J. We cannot agree with the court below as to the construction of the contract in question, and for a breach of which this suit was brought. The plaintiff agreed to buy of the defendants all the oyster shells made by them and H. F. Hemmingway for the season beginning 1st September, 1891, and ending May 1, 1892. He agreed that boats should be kept at the docks of the defendants constantly, so as to keep the oyster houses clear of shells, and on these boats the shells were to be delivered until the 20th of November, 1891. No shells were to be piled on the defendants' premises until about that time, and all shells thus piled were to be taken away by the plaintiff before the 15th July, 1892. The plaintiff further agreed to pay on the first day of each and every successive week for the shells delivered during the previous week; that is to say, all shells delivered during the first week in September were to be paid for on Monday of the following week, and so on for every week thereafter. Un der this contract about 75,000 bushels of shells were delivered between 1st September and 26th December, and on the 28th day of the latter month the defendants notified the plaintiff that the contract was at an end, and refused to deliver to bim any more shells. This suit is brought to recover damages for an alleged breach of the contract, and the defense is that the plaintiff failed to make the weekly payments according to the terms of the contract, and failed also to keep boats at the defendants' docks, so as to clear the houses of the shells. As the defendants in their testimony admit that they did not declare the contract at an end because of the failure of the plaintiff to keep boats at their docks, it is only necessary to consider whether his failure to make the weekly payments for the shells delivered justified the defendants in refusing to deliver to him any more shells, and this depends upon whether the weekly payments by the plaintiff are to be considered au essential part of the contract; and in considering this question it must be borne in mind that the contract contemplated the sale of at least 200,000 bushels of shells, to be delivered daily during a period of eight months, from the 1st of September to the 1st May following; and, further, that the contract provided in express terms for the payment of each week's delivery on the first day of the next week. We cannot suppose for a moment that the defendants meant to give an indefinite credit to the plaintiff, nor even a credit until all the shells were delivered or taken

away. On the contrary, looking at the terms of the contract, it seems to us it was the intention of the parties that the weekly payments by the plaintiff should constitute an essential part of the contract; in other words, it was of the essence of the contract. In Withers v. Reynolds, 2 Barn. & Adol. 882, where the defendant agreed to supply the plaintiff with straw, to be delivered on defendant's premises at the rate of three loads in a fortnight, during a specified time, and the plaintiff agreed to pay 30 shillings for each load so delivered, it was held that, according to the true construction of the contract, each load was to be paid for on delivery, and that on the plaintiff's refusal to pay for the straw as delivered the defendant was not bound to deliver any more. And in Curtis v. Gibney, 59 Md. 131, treating the contract as an agree ment on the part of the defendant to consign 10,000 bushels of barley to the plaintiffs, the shipments to be made at different times, and payment to be made after receipt of each shipment, Bartol, C. J., said: "It is equally clear that, upon bis failure to remit to the appellant the proceeds in his hands arising from the sale of the barley according to the terms of his contract with the appellant, the latter was not bound to make further consignments to him." If there be, however, any doubt as to the intention of the parties from the terms of the contract itself, their subsequent acts and declarations show beyond question that the weekly payments to be made by the plaintiff constituted an essential part of the contract now before us. So early as October 12th we find the weekly bill sent by the defendants to the plaintiff indorsed, "Please send money for these bills promptly." Again, on the bill of December 7th, we find the following in. dorsement: "Terms, cash every Monday," and in their letter dated November 27th the defendants say: "Your contract reads that you are to pay us weekly, and you are no doubt aware of the fact that you have been violating that part of it;" and in this letter they notify the plaintiff that unless the weekly bills already due are paid at once they will refuse to allow him to take away any more shells. Again, in their letter of 7th December, they insist that the weekly bills shall be“ paid prompt ly every week as per agreement.' And finally, by letter of December 7th, they no. tify the plaintiff that by reason of his failure to pay the bills weekly according to agree. ment the contract between them is at an end. No objection whatever was made by the plaintiff to the defendants' construction of the contract, nor as to their right to annul it upon his failure to make the weekly payments. On the contrary, upon the receipt of the letter of the 7th December, the plaintiff paid at once all the bills due at that time, and upon their payment the defendants continued to deliver the shells. On the 28th of December, however, having failed to pay the weekly bills for the 14th and 21st of December, the defendants sold the shells to another person at the same price. On the latter part of that day, the plaintiff tendered to the defendants his check for $112.17, being the

amount due for bills of December 14th and 21st; but, having sold the shells to another person before the tender was made, they refused to accept the same. It is clear, therefore, that the weekly payments were meant and understood by the parties to be an essential part of the contract, and, the plaintiff having failed time and again to make these payments according to the terms of the contract, the defendants had the right to put an end to the contract, and to refuse to deliver any more shells under it to the plaintiff; and, this being so, there was error in granting the plaintiff's second instruction. There is evidence, it is true, tending to show that the defendants had condoned or waived the default on the part of the plaintiff, and this question was properly submitted to the jury by the plaintiff's first instruction.

As to the rule in regard to the measure of damages, there cannot be, it seems to us, any difficulty in regard to this question. In an action on a contract of this kind the damage is the actual loss sustained by the plaintiff from the breach of the contract; and, so far as money can do it, he is to be placed in the same situation as if the contract had been performed. And in estimating this loss the rule ordinarily is the difference between the contract price and the market price at the time agreed upon for the delivery of the goods and chattels sold. Now, in this case, the defendants had delivered about 75,000 bushels of shells, and, if there was a breach of contract on their part in refusing to deliver any more shells, then the plaintiff was entitled to recover as damages the difference between the contract price to be paid for the balance of the shells and the market price at the time or times when the shells were to be delivered, (Pinckney v. Dambmann, 72 Md. 184, 19 Atl. Rep. 450, Benj. Sales, § 882;) and the court, in granting the plaintiff's fifth prayer, as we understand it, so instructed the jury. At the same time we deem it proper to say that the prayer is incumbered with a good deal of unnecessary verbiage, a matter always to be avoided in the trial of all causes.

As to the several instructions offered by the defendants, these were all properly rejected. The first and third were properly rejected, because, if it be assumed that there had been a breach of the contract by the plaintiff himself, these instructions do not submit to the jury to find whether the breach or breaches by him had been condoned or waived by the defendants. The second instruction presents the question whether the tender, made by the plaintiff on the 28th December, of his check for $112, in payment of the weekly bills for the 14th and 21st December, constituted a lawful tender. He had been in the habit of making payment for the weekly deliveries by checks, and when the check in question was tendered to the defendants they refused to accept it, not because the tender of payment was made by check instead of lawful money, but because they had declared the contract to be at an end, and had in fact sold the balance of the shells to be made by them during the oyster season to another person. And, such being

the case, we take it to be well settled that, where a tender is made, whether it be by ordinary bank notes or by a check on a bank, and the tender is refused, not because of the character or quality of the tender itself, but on other grounds, the tender thus made and refused will be considered in law a lawful tender; and for the reason that all objection to the character of the tender will be considered as having been waived; and for the further reason that, if objection had been made on the ground that the tender was not made in lawful money, the party would have had the opportunity of getting the money and of making a good and valid tender. Young v. Harris, 2 (romp. & J. 15. The defendants' fourth prayer was not pressed in argument. If there was a breach of the contract in refusing to deliver the shells to the plaintiff, the latter was under no obligation to go into the market and purchase other shells, even though he might have purchased them at the same or less than the contract price. If there was no difference in fact between the contract price and the market price at the time the shells were to be delivered, the plaintiff, it is true, sustained no actual loss from the breach of the contract. But at the same time, even though he failed to prove any bona fide, substantial loss or damage, he was still entitled to nominal damages. Whenever a contract is broken the law presumes that some damage has been sustained, and, if the plaintiff should fail to prove any actual loss or injury, he is still entitled to a verdict for nominal damages. Feize v. Thompson, 1 Taunt. 121; Embrey v. Owen, 6 Exch. 353. Judgment reversed, and new trial awarded.

1. A labor organization which refuses to admit a nonunion man to membership, and informs his employers that in case he is any longer retained it will be compelled to notify all labor organizations of the city that their house is a nonunion one, and thereby compels his dis charge, is guilty of a wrongful act; and an action will lie against it by the nonunion man for the damages he has suffered in consequence of such discharge.

2. Code, art. 23, § 37, which authorizes the formation of trades unions to promote the well-being of the everyday life of members, and for mutual assistance in securing the most favorable conditions for such members, and as beneficial societies, does not sanction the making of war on the nonunion laboring man, or the illegal interference with his rights and privileges.

3. The intention of the organization in sending the notice must be determined from the facts as they are developed, and the employers were justified in construing the notice to mean that, if they retained the nonunion man in their employ, they would lose the patronage of labor organizations, and that the union labor in their employ would quit work, or be ordered

out, though the laws of the organization prohibit the calling out of its members because of the employment of nonunion men.

4. Where the work of the nonunion man was entirely satisfactory to his employers, who intended to retain him permanently, and he was discharged solely because of the notice received from the labor organization, the fact that his employer reserved the right to discharge him at the end of any week will not prevent him from recovering damages from the organization for maliciously and wantonly procuring his discharge.

5. Evidence that the nonunion man's employment was for an indefinite period, with a right reserved to the employer to discharge him at the end of any week, does not authorize a recovery on a declaration which alleges a breach of contract of employment by the employer, caused by the illegal interference of the labor organization.

6. While the court of appeals will affirm a judgment against plaintiff where there is a substantial variance between pleadings and proof, yet, where there is evidence authorizing a recov ery on proper amendment of the declaration, the cause will be remanded, with directions to award a new trial in accordance with Code, art. 5, § 20.

Appeal from superior court of Baltimore city.

Action by George W. Lucke against the Clothing Cutters & Trimmers' Assembly No. 7,507, K. of L., of Baltimore city, for procuring plaintiff's former employer to break his contract with plaintiff, and to discharge him from employment. The court directed a verdict in defendant's favor, and plaintiff appeals. Affirmed, with direction to grant a new trial.

Argued before ALVEY, C. J., and ROB. INSON, BRYAN, FOWLER, McSHERRY. ROBERTS, and PAGE, JJ.

W. L. Marbury, H. J. Bowdoin, and W. L. Hodge, for appellant. Wm. Pinkney. Whyte, for appellees.

ROBERTS, J. This is an action brought by the appellant to recover damages for the wrongful and malicious interference of the appellee, by which he was discharged from his employment in the New York Clothing House, and prevented the free exercise of his trade and occupation, and thereby_deprived of his means of liveli. hood. It appears from the testimony produced on the part of the appellant in the court below that the trade of the appe!lant was that of a "customs cutter:" that is, one who took the measure of customers desiring to have clothing made to order, cut the material according to measurement, and fitted the same on the customer. This had been his trade for 20 years, and he was a thoroughly skilled man in his trade, and had since the year 1860 been a citizen of Baltimore city. In August, 1891, he was employed by Rosenfeld Bros. (trading as the New York Clothing House) as a customs cutter, at a salary of $30 a week. At the time of his employment he was assured by Rosenfeld Bros. that, in the event of his work proving satisfactory to them, they would give him permanent employment. Subsequently his employers informed him that they were entirely satisfied with him, and that they would retain him in their service as long. as he might choose to remain. Shortly

thereafter Israel Rosenfeld, one of the members of the firm of Rosenfeld Bros., called his attention to the fact that certain members of the appellee corporation were complaining of his employment on the ground that he was a nonunion man; that is, he was not a member of the appeltee, which is a labor union, and a branch of the general organization known as the K. of L., or Knights of Labor. Thereupon the appellant expressed his willingness to become a member of the appellee, and requested a witness, named Franz, who testified at the trial below, and who was a member of the appellee in good standing, to present his application, as, the appellee being a secret organization, he could not obtain access to its meetings for the purpose of presenting the application in person. The appellant had been informed by several members of the appellee that the manner in which he had made his application was the only way in which it could be done. Franz subsequently informed the appellant that he had made application to the appellee for his admission, but the appellee could not act on it that night, which was in the early part of December, 1891, owing to the fact that they had too many union men out of employment, but that they would act on it in February. That in February, about a week before the appellant was discharged, a committee of certain members of the appellee called at the New York Clothing House to inquire about the matter of the appellant's employment while he was a nonunion man. One of the committee was Michael, the master workman of the appellee, whose position in the organization was equal to that of president. The committee spoke to the appellant concern ing his not being a member of the appellee, when he stated then that he had made application for membership through one of their members, and expressed his willingness to join their organization. They then informed him that everything would be satisfactory, and said that they would see that everything would be properly attended to, and went away, leaving the appellant under that impression. The appellant heard nothing further until the following Saturday, when one of the firm of Rosenfeld Bros. exhibited to him a notice which the firm had received from the appellee, as follows: "Clothing Cutters' and Trimmers' L. A. 7,507, K. of L. Baltimore, Feby. 16th, 1892. Messrs. Rosenfeld Bros. -Gentlemen: Clothing Cutters' and Trimmers' L. A. 7,507, K. of L., do herewith desire to inform you that in case the nonunion man whom you have in your employ is any longer retained we will be compelled to notify all labor organizations of the city that your house is a nonunion one. Trusting you may give this matter due consideration, we are, respectfully, yours, Clothing Cutters & Trimmers' L. A. 7,507, K. of L. Jno. G. Nagengast, Secretary. That upon receiving said notice the said firm immediately notified the appellant that he would have to go, and did in fact discharge him from their employ, at the same time notifying the appellee of their action by sending them the followIng letter: "Office of New York Clothing

House, 102 and 104 East Baltimore Street, Opposite Light Street. Baltimore, February 18th, 1892. John G. Nagengast, Esq., No. 31 S. Washington, City-Dear Sir: Your letter received, and your request will be granted. The gentleman referred to will be discharged Saturday night. Yours, respectfully, Rosenfeld Bros., J. W. Frey, Cutters and Trimmers. The appellant further proved that at the time of his discharge his employers were entirely satisfied with his work, and anxious to retain his services. That at the suggestion of his employers he went to see Mr. Michael, the master workman, and asked him why he had been treated in the way he had. Michael responded that he knew it was a wrong being done him, but that the appellee had passed a resolution not to accept any more members, and that was the only ground of their action, and they did so because there were so many union men out of employment. That he, Michael, had made an effort to procure a repeal of the resolution, but had been unable to do it. Michael informed the appellant that there was no objection to his becoming a member of the appellee. The appellant further proved that he was never informed by any one that it was necessary for him to appear before au examining board, or to take any further steps, or to do anything further than he had done, in order that he might become a member of the appellee. Appellant was a married man, and after his discharge he inade every effort he could to obtain employment, but after the action taken by the appellee it was impossible for him to obtain employment from any of the clothing houses, and at the time of his discharge he was unable to obtain employment from the merchant tailors, owing to its being their dull season, and he did not until the following April obtain employ. ment, which was from a merchant tailor, at five dollars a week less than he received from Rosenfeld Bros. That he had been employed by Rosenfeld Bros. by the week, but after he had been there a while he was told that his employment was permanent, but that they had the right to discharge him at the end of any week. It was in proof by one of the Rosenfeld brothers that "the appellant was a first-class customs cutter;" that he "filled the bill exactly," and that their firm were entirely satisfied with him, and would not have discharged him but for the objection of the appellee; that they discharged him on account of the letter received from appellee, dated February 16th, and by letter dated February 18th they notified the appellee of the receipt of its letter, and stated that its request would be granted, and gentleman referred to will be discharged Saturday night," to which there was no reply by the appellee. Witness further proved that, in his opinion, as a consequence of the failure of his firm to discharge the appellant, their patronage would have fallen off to the extent of organized labor, and that all the union cutters would have been ordered out, and that it would have gone still further than that; that not only the people who cut the material, but those that sewed on the

the

work, would have been stopped from cutting or sewing for them; and "if the union men in our employ at the time the appellant was discharged had been called out, and left, the effect would have been to cause us great loss, as we had on hand at that time a number of contracts."

The appellee then offered evidence tending to prove that the by-laws of the organization required application for memhership to be made in a certain manner, with which the appellant had not complied; that the local law of the appellee and the general law of the order of the Knights of Labor prohibited the calling out of their members because of the employment of nonunion men. It was also testified on the part of the appellee that no one had used fraud or intimidation in regard to calling out members in talking to Mr. Rosenfeld if he did not make the New York Clothing House a union house. The appellee has a membership of 500. In the month of January, 1891, the firm of Rosenfeld Bros. had promised the appellee that they would employ none but union men, provided the appellee would include the New York Clothing House among the names of those houses which the appellee was publishing monthly in the Critic, a paper devoted to the interest of labor organizations. The publication of said names was as follows: "The Critic. Saturday, February 14th, 1891. Issued Monthly. February, 1891. To Organized Labor: All members of labor organizations are most respectfully urged to buy or have their clothes made by the clothiers named in this advertisement, and to use their influence among their friends to follow their example. The prices of these tirms will be found as low as nonunion firms, and the work will be more reliable and satisfactory. Clothing Cutters' and Trimmers' Assembly 7,507, K. of L., takes pleasure in recommending to members of labor organizations, and all friends of labor generally, the following named firmswhere work is cut and trimmed by mem, bers of L. A. 7,507, K. of L." Then follow the names of nine houses, of which the New York Clothing House was one. The statement is formally signed by Frank Armiger, master workman, and J. G. Nagengast, recording secretary. Appellee further proved that the effect of the refusal of the New York Clothing House to discharge the appellant upon receiving the appellee's letter of February 16, 1892, would have been to cause the withdrawal by the appellee of said house's name from the list of those advertised in the Critic.

These are the facts, a full statement of which is necessary to a proper understand. ing of the merits of the controversy, and the disposition of the same. The case was taken from the consideration of the jury by the prayers granted at the instance of the appellee, on the ground that there was no evidence in the cause legally sufficient to entitle the appellant to recover in this action, which, in legal effect, is nothing more than a demurrer to the evidence. We are therefore to inquire whether the court below committed error in granting the instructions asked for, by which the

"

lant's engagement with Rosenfeld Bros. as a "customs cutter" commenced in the month of August, 1891, and continued to the month of February, 1892, and was to continue as long as his work proved satisfactory. His work gave entire satisfaction to his employers, who, however, retained the right to discharge bim at the end of auy week; but a member of the firm testified that they would not have discharged him but for the objection of the appellee. The appellee on the 16th of February, 1892, sent Rosenfeld Bros. a written notice, informing them "that in case the nonunion man whom they had in their employ was any longer retained, it would be compelled to notify all labor organizations of the city that their house was a nonunion one. How many similar organizations there were in the city the record does not disclose, but the membership of the appellee is 500. This notice Rosenfeld Bros. construed to mean that, if they retained the appellant in their employ, they would lose the patronage of the labor organi zations, and that the union labor which they then employed would he ordered out, or they would have to quit work, the effect of which, as testified by Mr. Rosenfeld, would have been to cause his firm great loss, in consequence of their baving a number of contracts on hand at that time. There are several inquiries which arise out of the facts just stated. First. Had the appellee justifiable cause in pursuing the course which it did in threatening said firm that if they retained the uppellant any longer in their employ it would be compelled to notify all labor or ganizations of the city that their house was a nonunion house? Second. Was the conduct of the appellee in the course pursued by it towards the appellant wrongful or malicious? Third. Had Rosenfeld Bros. reasonable grounds to anticipate loss or injury to themselves in consequence of the action of the appellee?

The first and second propositions can be considered together, as they are somewhat reciprocal in the relation they bear to each other. It is contended on the part of the appellee that it did not, by the sending of the notice of February 16th to Rosenfeld Bros., contemplate auy such course as that which has been attributed to it; and that the local law of the appellee and the general law of the order of the Knights of Labor prohibited the calling out of their members because of the em

ployment of nonunion men. If this be so, how are we to interpret the meaning of the written notice? What purpose did the appellee have in sending it, and what design was, through its agency, sought to be accomplished? This was no idle play in which they were involved. It related to the most serious right affecting a laboring man's life, which was the privilege of seeking remunerative employment, and thereby gaining an honest livelihood. Is it not unquestionably true that, but for the interference of the appellee, the appellant would not have been discharged? It is not necessary that such interference should have been malicious in its character. If it be wrongful, it is