extent to which each will be protected in the enjoyment of his rights, as compared with those of his brother.'' 39 * * * * 17. Same subject-Justice Holmes' statement of the doctrine of justification.-"In numberless instances the law warrants the intentional infliction of temporal damage because it regards it as justified. On the question as to what shall amount to a justification the true grounds of decision are considerations of policy and of social advantage, and it is vain to suppose that solutions can be attained merely by logic and the general propositions of law, which nobody disputes. * It has been the law for centuries that a man may set up a business in a country town too small to support more than one, although he expects and intends thereby to ruin someone already there, and succeeds in his intent. In such a case he is not held to act unlawfully and without justifiable cause. reason, of course, is that the doctrine generally has been accepted that free competition is worth more to society than it costs, and that on this ground the infliction of damage is privileged. * * Yet even this proposition nowadays is disputed by a considerable body of persons, including many whose intelligence is not to be denied, little as we may agree with them. I have chosen this illustration partly with reference to what I have to say next. It shows without the need of further authority that the policy of allowing free competition justifies the intentional infliction of temporal damage, including the damage 39 28 Law Quarterly Review, 67. * * * The of interference with a man's business, by some means, when the damage is done not for its own sake, but as an instrumentality in reaching the end of victory in the battle of trade." 40 18. Same subject-Lord Bowen's statement of the doctrine of justification.-"We are presented in this case with an apparent conflict or antimony between two rights that are equally regarded by the law-the right of the plaintiffs to be protected in the legitimate exercise of their trade, and the right of the defendants to carry on their business as seems best to them, provided they commit no wrong to others. The plaintiffs complain that the defendants have crossed the line which the common law permits; and inasmuch as, for the purposes of the present case, we are to assume some possible damage to the plaintiffs, the real question to be decided is whether, on such an assumption, the defendants in the conduct of their commercial affairs have done anything that is unjustifiable in law. [After considering the circumstances under which competition would be "unfair," the limitations of the right of competition were laid down in the following words:] If it was done bona fide in the use of a man's own property, in the exercise of a man's own trade, such legal justification would, I think, exist not the less because what was done might seem to others to be selfish or unreasonable. * * * But such legal justification would not exist when the act was merely done with the intention of causing temporal harm, without reference to one's own lawful gain, or the lawful enjoy 40 Vegelahn v. Guntner, 167 Mass. 92, 44 N. E. 1077. ment of one's own rights. The good sense of the tribunal which had to decide would have to analyze the circumstances and to discover on which side of the line each case fell. But if the real object were to enjoy what was one's own, or to acquire for one's self some advantage in one's property or trade, and what was done was done honestly, peaceably, and without any of the illegal acts above referred to, it could not, in my opinion, properly be said that it was done without just cause or excuse."41 19. Competition.-Competition as a justifying ground for interference with another's business rights has been accepted for centuries. In 1410 we have the Gloucester Schoolmaster's Case,42 where the plaintiff claimed damages on account of the decrease in his revenue caused by the establishment of a rival school. The court held that the competition was in the interest of the public, and that there was consequently no ground whereon to maintain an action. And in 1889 we have the masterly opinion of Lord Justice Bowen in the Mogul case,43 still maintaining the doctrine of competition as a justifying cause under the workings of the modern industrial order. 20. Same subject-Fair and unfair competitionThe Mogul case.-Now, in order that competition may justify interference with business that would otherwise be illegal, the competition must be fair. This leads us to attempt to indicate what is fair, and what is unfair, competition. The most useful way 41 Mogul Steamship Co. v. McGregor, L. R. 23 Q. B. D. 598 (Eng.). 42 Y. B. 11 Henry IV, 47, 21 (Eng.). 49 Mogul Steamship Co. v. McGregor, L. R. 23 Q. B. D. 598 (Eng.). to do this is to review some of the more significant cases. In the important case of the Mogul Steamship Co. v. McGregor, made celebrated by the opinion of Lord Justice Bowen, we have a case where the extreme results of competition between rival business enterprises were held justified because within the limits of fair, although deadly, competition. In this case the defendant steamship company sent ships, additional in number to its usual custom, to Hankow and smashed rates in the China tea trade, in order to get rid of its competitors, either by ruining them or by driving them out of the field. The court ruled that the ruin of the plaintiff's business was justified on the ground of competition. Lord Justice Bowen said: "The defendants, we are told by the plaintiff's counsel, might lawfully lower rates, provided they did not lower them beyond a 'fair freight,' whatever that may mean. But where is it established that there is any such restriction upon commerce? And what is to be the definition of a 'fair freight'? It is said that it ought to be a normal rate of freight, such as is reasonably remunerative to the shipowner. But over what period of time is the average of this reasonable remunerativeness to be calculated? All commercial men with capital are acquainted with the ordinary expedient of sowing one year a crop of apparently unfruitful prices, in order, by driving competition away, to reap a fuller harvest of profit in the future; and until the present argument at the bar it may be doubted whether shipowners or merchants were ever deemed to be bound by law to conform to some imaginary 'normal' stand ard of freights or prices, or that law courts had a right to say to them in respect to their competitive tariffs, 'Thus far shalt thou go, and no further.' To attempt to limit English competition in this way would probably be as hopeless an endeavor as the experiment of King Canute." 21. Same subject-Case of the Passaic Print Works. Another extreme case of competition, in another line of business, is that of Passaic Print Works v. Ely & Walker Dry Goods Co. In this case the jobbers, defendants, issued a circular offering various brands of calicoes at prices below those of the manufacturers. No other jobbers could afford to sell them at such a figure, and this cutting of prices seriously injured the trade of the manufacturers. They accordingly complained that these cut prices. were offered to the public for the sole purpose of working injury on them. Nevertheless, the majority of the court held that there was no ground for an action. It was said in the course of the opinion: "The owner of property, real or personal, has an undoubted right to sell it and to offer it for sale at whatever price he deems proper, although the effect of such offer may be to depreciate the market value of the commodity which he thus offers, and incidentally to occasion loss to third parties who have the same kind or species of property for sale." 22. Same subject-Case of Tuttle v. Buck.—In the case of Tuttle v. Buck,45 we have, on the contrary, a case in which the court was unable to see 44 105 Fed. 163. 45 107 Minn, 145, 119 N. W. 946. |