and with a view to its injurious consequences may, in the sense of law, be malicious; but such malice derives its essential character from the circumstance that the act does constitute a violation of law." 29. Combination.-Another question, which has given rise to much discussion and to variety and even conflict of decision, is whether what is innocent when done by a single individual is still always innocent when done by a combination of individuals. A much quoted statement is this: "What one man may lawfully do singly, two or more may lawfully do jointly. The number who unite to do the act cannot change its character from lawful to unlawful."54 And in the New York court the same idea has been expressed in these words: "Whatever one may do alone, he may do in combination with others, provided they have no unlawful object in view. Mere numbers do not ordinarily affect the quality of the act."55 30. Same subject-Views expressed in Quinn v. Leathem. On the other hand, many answers, intended to be more discriminating and accurate, have been given to the view as stated in the last section. In the highly important case of Quinn v. Leathem,56 a number of the lords took occasion to express their views on the part that combined action may play in determining the liability of the defendants. Lord Bramwell, for instance, said: "I think there is an obvious answer, indeed, two; one is that a man may encounter the acts of a single person, yet not be 54 Mitchell, J., in Bohn Mfg. Co. v. Hollis, 54 Minn. 223, 55 N. W. 1119. 55 Parker, C. J., in National Protective Association v. Cumming, 170 N. Y. 315, 63 N. E. 369. 56 Quinn v. Leathem, (1901) A. C. 495 (Eng.). fairly matched against several. The other is, that the act when done by an individual is wrong though not punishable, because the law avoids multiplicity of crimes: de minimis non curat lex;-while if done by several it is sufficiently important to be treated as a crime." Lord Lindley said: "Annoyance and coercion by many may be so intolerable as to become actionable, and produce a result which one alone could not produce." And Lord Brampton spoke as follows: "Much consideration of the matter has led me to be convinced that a number of actions and things not in themselves actionable or unlawful if done separately without conspiracy, may, with conspiracy, become dangerous and alarming, just as a grain of gunpowder is harmless but a pound may be highly destructive, or the administration of one grain of a particular drug may be most beneficial as a medicine, but administered frequently and in larger quantities with a view to harm may be fatal as a poison." 31. Same subject-Frederic J. Stimson's view.— "Why should a few men be punished or be liable when no one does anything that is criminal, and even the combination intends no crime? The answer is, in logic, the tremendous power of combination; in history, the whole course and origin of English law; in morals, the fact that of all our English law this law recognizes most profoundly the necessary conditions of individual liberty and well being, as well as the principles of the moral law."57 57 Frederic J. Stimson, The Law of Combined Action or Possession, 45 American Law Review, 1. 32. Same subject-Doremus v. Hennessy. It will conduce to a clear understanding of this particular topic, as well as contribute to a knowledge of the whole subject of actionable interference with business and employment, to review a few concrete cases. In the case of Doremus v. Hennessy,58 the plaintiff carried on a laundry business, not by operating a plant of her own, but by employing several laundry companies to do the work of her customers. Defendants were members of a laundrymen's association, which had fixed a scale of prices for laundry work, and conspired to injure the plaintiff in her good name and credit and to destroy her business, because she would not charge prices in accordance with their scale. The court decided in her favor. "A combination by them to induce others not to deal with appellee or enter into contracts with her, was an actionable wrong." The court held, in effect, that intentional interference with business rights is prima facie a tort; that, while competition may be a justification, unfair competition is not a justification, and that "an act maliciously done, with the intent and purpose of injuring another, is not lawful competition." 33. Same subject-Brown v. Jacobs Pharmacy Co. In the Georgia case of Brown v. Jacobs Pharmacy Co.," the plaintiff had formerly been a member of the Atlanta Retailers' Association, but had withdrawn therefrom because of charges preferred against him for violation of its rules. The Retailers' 58 176 Ill. 608, 52 N. E. 924. 59 115 Ga. 429, 41 S. E. 553. Association thereupon notified the Wholesalers' Association that no retailer in the local association would buy of a wholesaler who sold to a rate cutter. In granting an injunction the court said: "The individual right is radically different from the combined action. The combination has hurtful powers and influences not possessed by the individual. It threatens and impairs rivalry in trade, covets control in prices, seeks and obtains its own advancement at the expense and in the oppression of the public. The difference, in legal contemplation, between individual right and combined action in trade, is seen in numerous cases. To protect the individual against encroachments upon his rights by a greater power is one of the most sacred duties of the courts." 34. Same subject-Delz v. Winfree.-The Texas case of Delz v. Winfree 0 points out strongly the fact that the question of absolute rights stops with the individual, and when persons act together influencing the minds of other persons the rights become relative. In this case the plaintiff was a butcher and his complaint was that several persons had induced others not to sell him live animals for cash, whereby he was greatly injured in his business. In considering the legality of such conduct, the court said: "The appellee also asserts the following proposition, which may be conceded to be correct: 'A person has an absolute right to refuse to have business relations with any person whomsoever, whether the refusal is based upon reason or is the result of whim, caprice, prejudice, or malice, and there is no 60 80 Tex. 400, 16 S. W. 111. 60 law that forces a man to part with his title to his property.' The privilege here asserted must be limited, however, to the individual action of the party who asserts the right. It is not equally true that one person may, from such motives, influence another person to do the same thing." 61 35. Same subject-Bailey v. Master Plumbers' Association.-The same view is re-enforced from another angle by the acute observations of the court in the Tennessee case of Bailey v. Master Plumbers' Association. In this case a by-law of the defendant association forbade its members to purchase from dealers who sold to outsiders. In commenting upon the cases of Macauley v. Tierney 62 and Bohn Mfg. Co. v. Hollis,63 the court said: "In our opinion, it does not follow from this undoubted freedom of the individual member and individual dealer that all of the members may, as ruled in those cases, lawfully enter into a general and unlimited agreement, in the form of by-laws, that they, and all of them, will make their purchases from only such dealers as will sell to members exclusively. The premise does not justify the conclusion. The individual right is radically different from the combined action. * * * The fact that every plumber in the city of Memphis had the legal right originally to purchase supplies and materials from any dealer or dealers he might choose did not justify the association in the passage of by-laws requiring its members to buy from that 61 103 Tenn. 99, 52 S. W. 853. |