Chapter VIII: Interference with Advantageous Relations (5)

First, then, that the remedy for breach of contract is by the general rule of our law confined to the contracting parties. I need not argue that, if there be any remedy by action against a stranger, it must be by action on the case. Now, to found this, there must be both injury in the strict sense of the word (that is a wrong done), and loss resulting from that injury: the injury or wrong done must be the act of the defendant; and the loss must be a direct and natural, not a remote and indirect consequence of the defendant’s act. Unless there be a loss thus directly and proximately connected with the act, the mere intention, or even the endeavor, to produce it will not found the action. The existence of the intention, that is the malice, will in some cases be an essential ingredient in order to constitute the wrongfulness or injurious nature of the act; but it will neither supply the want of the act itself, or its hurtful consequences: however complete the _injuria_, and whether with malice or without, if the act be after all _sine damno_, no action on the case will lie. The distinction between civil and criminal proceedings in this respect is clear and material; and a recollection of the different objects of the two will dispose of any argument founded merely on the allegation of malice in this declaration, if I shall be found right in thinking that the defendant’s act has not been the direct or proximate cause of the damage which the plaintiff alleges he has sustained. If a contract has been made between A. and B. that the latter should go supercargo for the former on a voyage to China, and C., however maliciously, persuades B. to break his contract, but in vain, no one, I suppose, would contend that any action would lie against C. On the other hand, suppose a contract of the same kind made between the same parties to go to Sierra Leone, and C. urgently and _bona fide_ advises B. to abandon his contract, which on consideration B. does, whereby loss results to A.; I think no one will be found bold enough to maintain that an action would lie against C. In the first case no loss has resulted; the malice has been ineffectual; in the second, though a loss has resulted from the act, that act was not C.’s, but entirely and exclusively B.’s own. If so, let malice be added, and let C. have persuaded, not _bona fide_ but _mala fide_ and maliciously, still, all other circumstances remaining the same, the same reason applies; for it is _malitia sine damno_, if the hurtful act is entirely and exclusively B.’s, which last circumstance cannot be affected by the presence or absence of malice in C. Thus far I do not apprehend much difference of opinion: there would be such a manifest absurdity in attempting to trace up the act of a free agent breaking a contract to all the advisers who may have influenced his mind, more or less honestly, more or less powerfully, and to make them responsible civilly for the consequences of what after all is his own act, and for the whole of the hurtful consequences of which the law makes him directly and fully responsible, that I believe it will never be contended for seriously. This was the principle on which Lord Kenyon proceeded in Ashley _v._ Harrison, 1 Peake’s N. P. C. 194; S. C. 1 Esp. N. P. C. 48. There the defendant libelled Madame Mara; the plaintiff alleged that, in consequence, she, from apprehension of being hissed and ill-treated, forbore to sing for him, though engaged, whereby he lost great profits. Lord Kenyon nonsuited the plaintiff: he thought the defendant’s act too remote from the damage assigned. But it will be said that this declaration charges more than is stated in the case last supposed, because it alleges, not merely a persuasion or enticement, but a procuring. In Winsmore _v._ Greenbank the same word was used in the first count of the declaration, which alone is material to the present case; and the Chief Justice, who relied on it, and distinguished it from enticing, defined it to mean “persuading with effect;” and he held that the husband might sue a stranger for persuading with effect his wife to do a wrongful act directly hurtful to himself. Although I should hesitate to be bound by every word of the judgment, yet I am not called on to question this definition or the decision of the case. Persuading with effect, or effectually or successfully persuading, may no doubt sometimes be actionable—as in trespass—even where it is used towards a free agent; the maxims, _qui facit per alium facit per se_, and _respondeat superior_, are unquestionable; but, where they apply, the wrongful act done is properly charged to be the act of him who has procured it to be done. He is sued as a principal trespasser, and the damage, if proved, flows directly and immediately from his act, though it was the hand of another, and he a free agent, that was employed. But, when you apply the term of effectual persuasion to the breach of a contract, it has obviously a different meaning; the persuader has not broken and could not break the contract, for he had never entered into any; he cannot be sued upon the contract; and yet it is the breach of the contract only that is the cause of damage: Neither can it be said that in breaking the contract the contractor is the agent of him who procures him to do so; it is still his own act; he is principal in so doing, and is the only principal. This answer may seem technical; but it really goes to the root of the matter. It shows that the procurer has not done the hurtful act; what he has done is too remote from the damage to make him answerable for it. The case itself of Winsmore _v._ Greenbank seems to me to have little or no bearing on the present: a wife is not, as regards her husband, a free agent or separate person; if to be considered so for the present purpose, she is rather in the character of a servant, with this important peculiarity, that, if she be induced to withdraw from his society and cohabit with another or do him any wrong, no action is maintainable by him against her. In the case of criminal conversation, trespass lies against the adulterer as for an assault on her, however she may in fact have been a willing party to all that the defendant had done. No doubt, therefore, effectual persuasion to the wife to withdraw and conceal herself from her husband is in the eye of the law an actual withdrawing and concealing her; and so, in other counts of the declaration, was it charged in this very case of Winsmore _v._ Greenbank. A case explainable and explained on the same principle is that of ravishment of ward. The writ for this lay against one who procured a man’s ward to depart from him; and, where this was urged in a case hereafter to be cited (Mich. 11 H. 4, fol. 23 A. pl., 46, 2 E. & B. 255), Judge Hankford[573] gives the answer: the reason is, he says, because the ward is a chattel, and vests in him who has the right. None of this reasoning applies to the case of a breach of contract; if it does, I should be glad to know how any treatise on the law of contract could be complete without a chapter on this head, or how it happens that we have no decisions upon it. Certainly no subject could well be more fruitful or important; important contracts are more commonly broken with than without persuaders or procurers, and these often responsible persons when the principals may not be so. I am aware that with respect to an action on the case the argument _primæ impressionis_ is sometimes of no weight. If the circumstances under which the action would be brought have not before arisen, or are of rare occurrence, it will be of none, or only of inconsiderable weight; but, if the circumstances have been common, if there has been frequently occasion for the action, I apprehend it _is_ important to find that the action has yet never been tried. Now we find a plentiful supply both of text and decision in the case of seduction of servants; and what inference does this lead to, contrasted with the silence of the books and the absence of decisions on the case of breach of ordinary contracts? Let this too be considered: that, if by the common law it was actionable effectually to persuade another to break his contract to the damage of the contractor, it would seem on principle to be equally so to uphold him, after the breach, in continuing it. Now upon this the two conflicting cases of Adams _v._ Bafeald, 1 Leon. 240, and Blake _v._ Lanyon, 6 T. R. 221, are worth considering. In the first, two judges against one decided that an action does not lie for retaining the servant of another, unless the defendant has first procured the servant to leave his master; in the second, this was overruled; and, although it was taken as a fact that the defendant had hired the servant in ignorance and, as soon as he knew that he had left his former master with work unfinished, requested him to return, which we must understand to have been a real, earnest request, and only continued him after his refusal, which we must take to have been his independent refusal, it was held that the action lay; and this reason is given: “The very act of giving him employment is affording him the means of keeping out of his former service.” Would the judges who laid this down have held it actionable to give a stray servant food or clothing or lodging out of charity? Yet these would have been equally means of keeping him out of his former service. The true ground on which this action was maintainable, if at all, was the Statute of Laborers, to which no reference was made. But I mention this case now as showing how far courts of justice may be led if they allow themselves, in the pursuit of perfectly complete remedies for all wrongful acts, to transgress the bounds which our law, in a wise consciousness as I conceive of its limited powers, has imposed on itself, of redressing only the proximate and direct consequences of wrongful acts. To draw a line between advice, persuasion, enticement and procurement is practically impossible in a court of justice; who shall say how much of a free agent’s resolution flows from the interference of other minds, or the independent resolution of his own? This is a matter for the casuist rather than the jurist; still less is it for the juryman. Again, why draw the line between bad and good faith? If advice given _mala fide_, and loss sustained, entitle me to damages, why, though the advice be given honestly, but under wrong information, with a loss sustained, am I not entitled to them? According to all legal analogies the _bona fides_ of him who, by a conscious wilful act, directly injures me will not relieve him from the obligation to compensate me in damages for my loss. Again, where several persons happen to persuade to the same effect, and in the result the party persuaded acts upon the advice, how is it to be determined against whom the action may be brought, whether they are to be sued jointly or severally, in what proportions damages are to be recovered? Again, if, instead of limiting our recourse to the agent, actual or constructive, we will go back to the person who immediately persuades or procures him one step, why are we stop there? The first mover, and the malicious mover too, may be removed several steps backward from the party actually induced to break the contract; why are we not to trace him out? Morally he may be the most guilty. I adopt the arguments of Lord Abinger and my brother Alderson in the case of Winterbottom _v._ Wright, 10 M. & W. 109; if we go the first step, we can show no good reason for not going fifty. And, again, I ask how is it that, if the law really be as the plaintiff contends, we have no discussions upon such questions as these in our books, no decisions in our reports? Surely such cases would not have been of rare occurrence; they are not of slight importance, and could hardly have been decided without reference to the Courts in Banc. Not one was cited in the argument bearing closely enough upon this point to warrant me in any further detailed examination of them. I conclude therefore what occurs to me on the first proposition on which the plaintiff’s case rests.

_Judgment for plaintiff._[574]

BOWEN _v._ HALL
IN THE COURT OF APPEAL, FEBRUARY 5, 1881.
_Reported in 6 Queen’s Bench Division, 333._

BRETT, L. J.[575] The Lord Chancellor agrees with me in the judgment I am about to read, and it is to be taken therefore as the judgment of the Lord Chancellor as well as of myself.

In this case, we were of opinion at the hearing, that the contract was one for personal service, though not one which established strictly for all purposes the relation of master and servant between the plaintiff and Pearson. We were of opinion that there was evidence to justify a finding that Pearson had been induced by the defendants to break his contract of service, that he had broken it, and had thereby, in fact, caused some injury to the plaintiff. We were of opinion that the act of the defendants was done with knowledge of the contract between the plaintiff and Pearson, was done in order to obtain an advantage for one of the defendants at the expense of the plaintiff, was done from a wrong motive, and would therefore justify a finding that it was done in that sense maliciously. There remained nevertheless the question, whether there was any evidence to be left to the jury against the defendants Hall and Fletcher, it being objected that Pearson was not a servant of the plaintiff. The case was accurately within the authority of the case of Lumley _v._ Gye. If that case was rightly decided, the objection in this case failed. The only question then which we took time to consider was whether the decision of the majority of the judges in that case should be supported in a Court of Error. That case was so elaborately discussed by the learned judges who took part in it, that little more can be said about it, than whether, after careful consideration, one agrees rather with the judgments of the majority, or with the most careful, learned, and able judgment of Mr. Justice Coleridge. The decision of the majority will be seen, on a careful consideration of their judgments, to have been founded upon two chains of reasoning. First, that wherever a man does an act which in law and in fact is a wrongful act, and such an act as may, as a natural and probable consequence of it, produce injury to another, and which in the particular case does produce such an injury, an action on the case will lie. This is the proposition to be deduced from the case of Ashby _v._ White, 1 Sm. L. C. (8th ed.), p. 264. If these conditions are satisfied, the action does not the less lie because the natural and probable consequence of the act complained of is an act done by a third person: or because such act so done by the third person is a breach of duty or contract by him or an act illegal on his part, or an act otherwise imposing an actionable liability on him. It has been said that the law implies that the act of the third party, being one which he has free will and power to do or not to do, is his own wilful act, and therefore is not the natural or probable result of the defendants’ act. In many cases that may be so, but if the law is so to imply in every case, it will be an implication contrary to manifest truth and fact. It has been said that if the act of the third person is a breach of duty or contract by him, or is an act which it is illegal for him to do, the law will not recognize that it is a natural or probable consequence of the defendant’s act. Again, if that were so held in all cases, the law would in some refuse to recognize what is manifestly true in fact. If the judgment of Lord Ellenborough in Vicars _v._ Wilcocks, 8 East, 1, requires this doctrine for its support, it is in our opinion wrong.

We are of opinion that the propositions deduced above from Ashby _v._ White, 1 Sm. L. C. (8th ed.), p. 264, are correct. If they be applied to such a case as Lumley _v._ Gye, the question is whether all the conditions are by such a case fulfilled. The first is that the act of the defendants which is complained of must be an act wrongful in law and in fact. Merely to persuade a person to break his contract, may not be wrongful in law or fact as in the second case put by Coleridge, J., _supra_. But if the persuasion be used for the indirect purpose of injuring the plaintiff, or of benefiting the defendant at the expense of the plaintiff, it is a malicious act which is in law and in fact a wrong act, and therefore a wrongful act, and therefore an actionable act if injury ensues from it. We think that it cannot be doubted that a malicious act, such as is above described, is a wrongful act in law and in fact. The act complained of in such a case as Lumley _v._ Gye, and which is complained of in the present case, is therefore, because malicious, wrongful. That act is a persuasion by the defendant of a third person to break a contract existing between such third person and the plaintiff. It cannot be maintained that it is not a natural and probable consequence of that act of persuasion that the third person will break his contract. It is not only the natural and probable consequence, but by the terms of the proposition which involves the success of the persuasion, it is the actual consequence. Unless there be some technical doctrine to oblige one to say so, it seems impossible to say correctly, in point of fact, that the breach of contract is too remote a consequence of the act of the defendants. The technical objections alluded to above have been suggested as the consequences of the judgment in Vicars _v._ Wilcocks, 8 East, 1. But that judgment when so used or relied on seems to us to be disapproved in the opinions given in the House of Lords in Lynch _v._ Knight, 9 H. L. C. 577, and seems to us when so used to be unreasonable. In the case of Lumley _v._ Gye, and in the present case, the third condition is fulfilled, namely, that the act of the defendant caused an injury to the plaintiff, unless again it can be said correctly that the injury is too remote from the cause. But that raises again the same question as has been just dismissed. It is not too remote if the injury is the natural and probable consequence of the alleged cause. That is stated in all the opinions in Lynch _v._ Knight, 9 H. L. C. 577. The injury is in such a case in law as well as in fact a natural and probable consequence of the cause, because it is in fact the consequence of the cause, and there is no technical rule against the truth being recognized. It follows that in Lumley _v._ Gye, and in the present case, all the conditions necessary to maintain an action on the case are fulfilled.

Another chain of reasoning was relied on by the majority in Lumley _v._ Gye, and powerfully combated by Coleridge, J. It was said that the contract in question was within the principle of the Statute of Laborers, that is to say, that the same evil was produced by the same means, and that as the statute made such means when employed in the case of master and servant, strictly so called, wrongful, the common law ought to treat similar means employed with regard to parties standing in a similar relation as also wrongful. If, in order to support Lumley _v._ Gye, it had been necessary to adopt this proposition we should have much doubted, to say the least. The reasoning of Coleridge, J., upon the second head of his judgment seems to us to be as nearly as possible, if not quite, conclusive. But we think it is not necessary to base the support of the case upon this latter proposition. We think the case is better supported upon the first and larger doctrine. And we are therefore of opinion that the judgment of the Queen’s Bench Division was correct, and that the principal appeal must be dismissed.

_Appeal dismissed._[576]

GLAMORGAN COAL CO., LIMITED _v._ SOUTH WALES MINERS’ FEDERATION
IN THE COURT OF APPEAL, AUGUST 11, 1903.
_Reported in [1903] 2 King’s Bench, 545._

SOUTH WALES MINERS’ FEDERATION _v._ GLAMORGAN COAL CO., LIMITED
IN THE HOUSE OF LORDS, APRIL 14, 1905.
_Reported in [1905] Appeal Cases, 239._

Appeal by the plaintiffs from the decision of BIGHAM, J., [1903] 1 K. B. 118.[577]

The action was brought by the Glamorgan Coal Company, Limited, and seventy-three other plaintiffs, owners of collieries in South Wales, against the South Wales Miners’ Federation, its trustees, its officers, and a number of members of its executive council, claiming damages for wrongfully and maliciously procuring and inducing workmen employed in the plaintiffs’ collieries to break their contracts of service with the plaintiffs. In the alternative the plaintiffs sued the defendants for wrongfully, unlawfully, and maliciously conspiring together to do the acts complained of. The plaintiffs claimed both damages and an injunction.

The defence consisted of denials of the material allegations in the statement of claim, and of a plea that the acts complained of were done, if at all, with reasonable justification and excuse. The trial of the action was commenced with a special jury; but ultimately the jury was discharged, and all questions of law and fact, as well as the ascertainment of damages, if any, were by consent left to the determination of the learned judge.

The following facts (_inter alia_) were stated, in substance, by BIGHAM, J., in his written opinion:—

The plaintiffs are seventy-four limited liability companies associated together for the protection of their own interests under the style of the Monmouthshire and South Wales Coal Owners’ Association. They work upwards of 200 collieries in the South Wales district, and in these collieries they employ about 100,000 men.

For the last twenty or twenty-five years the masters and the men in the South Wales colliery district have worked together under an agreement, called the sliding scale agreement, by which the rate of wages paid to the men is made to depend on the price for the time being of a certain agreed class of coal—that is to say, as the price of that coal rises or falls so the rate of wages moves up or down. Clause 23 of the sliding scale agreement is as follows: “It is hereby agreed that all notices to terminate contracts on the part of the employers as well as employed, shall be given only on the first day of any calendar month, and to terminate on the last day of the same month.”

The defendant federation was formed in 1898, and in 1899 was registered under the Friendly Societies Act. Practically all the miners in the South Wales district became members of it. There are about 128,000 members; including all, or very nearly all, the men who work for the plaintiffs. In 1900 the federation was in the possession of funds amounting to 100,000_l._ By its rules its objects are declared to be to provide funds to carry on the business of the federation; taking into consideration the question of trade and wages; to protect workmen generally, and regulate the relations between them and employers; and to call conferences to deal with questions affecting the workmen of a trade, wage, and legislative character.

In November, 1900, the executive council of the federation requested the workmen to hold meetings for the purpose of electing delegates to attend a conference on November 12. Delegates were accordingly elected, and at the conference a resolution was passed authorizing the council of the federation to declare a general holiday at any time they might think it necessary for the protection of wages and of the industry generally.

On October 23, 1901, a “manifesto” to the workmen was published, stating that it had been resolved that the workmen shall observe as general holidays Friday and Saturday next. Subsequently two other stop-days were ordered, viz.: for October 31 and November 6. (The reasons for issuing the manifesto are stated in the opinion of STIRLING, L. J., _post._) The result was that the men stayed away from work on the four days, and so broke their contracts with the masters.

The manifesto purported to be issued by the sliding scale committee, and was signed by the members of that committee, who were also members of the executive council of the federation. But in fact the issuing of the manifesto was caused by the executive council of the federation. In truth it was the federation who were acting; the name of the sliding scale committee being used as a blind, with the purpose of securing the funds of the federation from possible liability under the decision in the Taff Vale Case, [1901] App. Cas. 426.

BIGHAM, J., concluded his findings of fact with the following statement:—

“The evidence satisfies me that the action of the federation, and of the other defendants in 1901, was dictated by an honest desire to forward the interest of the workmen, and was not, in any sense, prompted by a wish to injure the masters. Neither the federation nor the other defendants had any prospect of personal gain from the operation of the stop-days. Having been requested by the men by the resolution of November 12, 1900, to advise and direct them as to when to stop work, the federation and the other defendants, who were its officers, in my opinion, did to the best of their ability advise and direct the men. Whether they advised them wisely I cannot say, though I am inclined to think not. But I am satisfied that they advised them honestly, and without malice of any kind against the plaintiffs.

“I have to decide, in these circumstances, whether an action in tort will lie against the defendants. The advice and guidance of the defendants was solicited and given. If followed, it involved, as the defendants knew, the breaking of the subsisting contracts. It was followed, as the defendants wished it should be, and damage resulted to the masters; but there was no malicious intention to cause injury, no profit was gained for themselves by the defendants, and their sole object was to benefit the men whom they were advising and directing.”

The learned judge gave judgment for the defendants on both branches of the plaintiffs’ claim. His opinion is reported in [1903] 1 K. B. 118.

Plaintiffs appealed.

[The opinion of VAUGHAN WILLIAMS, L. J., in favor of affirmance, is omitted.]

ROMER, L. J. The law applicable to this case is, I think, well settled. I need only refer to two passages in which that law is shortly and comprehensively stated. In Quinn _v._ Leathem [1901], A. C. 495, at p. 510, Lord Macnaghten said: “A violation of legal right committed knowingly is a cause of action, and it is a violation of legal right to interfere with contractual relations recognized by law if there be no sufficient justification for the interference.” And in Mogul Steamship Co. _v._ McGregor, Gow & Co., 23 Q. B. D. 598, at p. 614, Bowen, L. J., included in what is forbidden “the intentional procurement of a violation of individual rights, contractual or other, assuming always that there is no just cause for it.” But although, in my judgment, there is no doubt as to the law, yet I fully recognize that considerable difficulties may arise in applying it to the circumstances of any particular case. When a person has knowingly procured another to break his contract, it may be difficult under the circumstances to say whether or not there was “sufficient justification or just cause” for his act. I think it would be extremely difficult, even if it were possible, to give a complete and satisfactory definition of what is “sufficient justification,” and most attempts to do so would probably be mischievous. I certainly shall not make the attempt. In particular I do not think it necessary or useful to discuss the point as to how far the question of justification can be assimilated to the question of malice in cases of libel and slander. As Collins, M. R., said in Read _v._ Friendly Society of Operative Stonemasons, [1902] 2 K. B. 732, at p. 739: “It is not at all necessary in this case to embark upon the question whether ‘without just cause’ is a complete equivalent for what was meant in the common law by ‘malice.’ I am inclined to think that, though in many cases adequate as a description, it is not co-extensive with it, nor do I think that in civil actions any more than in criminal it will be possible to eliminate motives from the discussion.” I respectfully agree with what Bowen, L. J., said in the Mogul Case, when considering the difficulty that might arise whether there was sufficient justification or not: “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.” I will only add that, in analyzing or considering the circumstances, I think that regard might be had to the nature of the contract broken; the position of the parties to the contract; the grounds for the breach; the means employed to procure the breach; the relation of the person procuring the breach to the person who breaks the contract; and I think also to the object of the person in procuring the breach. But, though I deprecate the attempt to define justification, I think it right to express my opinion on certain points in connection with breaches of contract procured where the contract is one of master and servant. In my opinion, a defendant sued for knowingly procuring such a breach is not justified of necessity merely by his showing that he had no personal animus against the employer, or that it was to the advantage or interest of both the defendant and the workman that the contract should be broken. I take the following simple case to illustrate my view. If A. wants to get a specially good workman, who is under contract with B., as A. knows, and A. gets the workman to break his contract to B.’s injury by giving him higher wages, it would not, in my opinion, afford A. a defence to an action against him by B. that he could establish he had no personal animus against B., and that it was both to the interest of himself and of the workman that the contract with B. should be broken. I think that the principle involved in this simple case, taken by me by way of illustration, really governs the present case. For it is to be remembered that what A. has to justify is his action, not as between him and the workman, but as regards the employer B. And, if I proceed to apply the law I have stated to the circumstances of the present case, what do I find? On the findings of fact it is to my mind clear that the defendants, the federation, procured the men to break their contracts with the plaintiffs—so that I need not consider how the question would have stood if what the federation had done had been merely to advise the men, or if the men, after taking advice, had arranged between themselves to break their contracts, and the federation had merely notified the men’s intentions to the plaintiffs. The federation did more than advise. They acted, and by their agents actually procured the men to leave their work and break their contracts. In short, it was the federation who caused the injury to the plaintiffs. This was practically admitted before us by the counsel for the federation, and, indeed, such an admission could not, in my opinion, be avoided, having regard to the facts stated by the learned judge in his judgment. And it is not disputed that the federation acted as they did knowingly. So that the only question which remains is one of justification. Now the justification urged is that it was thought, and I will assume for this purpose rightly thought, to be in the interest of the men that they should leave their work in order to keep up the price of coal, on which the amount of wages of the men depended. As to this, I can only say that to my mind the ground alleged affords no justification for the conduct of the federation towards the employers; for, as I have already pointed out, the absence on the part of the federation of any malicious intention to injure the employers in itself affords no sufficient justification. But it was said that the federation had a duty towards the men which justified them in doing what they did. For myself I cannot see that they had any duty which in any way compelled them to act, or justified them in acting, as they did towards the plaintiffs. And the fact that the men and the federation, as being interested in or acting for the benefit of the men, were both interested in keeping up prices, and so in breaking the contracts, affords in itself no sufficient justification for the action of the federation as against the plaintiffs, as I have already pointed out. I think, therefore, that the appeal must succeed.

STIRLING, L. J.

* * * * *

That interference with contractual relations known to the law may in some cases be justified is not, in my opinion, open to doubt. For example, I think that a father who discovered that a child of his had entered into an engagement to marry a person of immoral character would not only be justified in interfering to prevent that contract from being carried into effect, but would greatly fail in his duty to his child if he did not. This duty is recognized by the courts; for the Court of Chancery and the Chancery Division of the High Court of Justice have continually so interfered on behalf of wards of Court, sometimes with a heavy hand; and the principle on which the judges of those courts have acted is simply that of doing on behalf of the ward that which a right-minded father would do in the true interest of his child. I conceive that circumstances might occur which would give rise to the same duty in the case of a contract of service. I need not say that the present is a very different case from that which I have just put. It would no doubt be desirable if a general rule could be formulated which would determine in what cases such a justification exists; but no such rule has been laid down, and I doubt whether this can be done; so far as I can see it must be left (in the language of Lord Bowen) to the tribunal to analyze the circumstances of each particular case and discover whether a justification exists or not.

In the present case the learned judge finds that the federation and the other defendants “had lawful justification or excuse for what they did in this, that having been solicited by the men to advise and guide them on the question of stop-days, it was their duty and right to give them advice, and to do what might be necessary to secure that the advice should be followed;” and the existence of this duty has been strongly pressed upon us in argument by the learned counsel for the several defendants. It will be observed that the learned judge expressly finds that the defendants were not merely advisers, but also agents “to do what might be necessary to secure that the advice should be followed.” In the view which I take of the facts the defendants not only gave advice, but acted, and their action took the form of interfering with the contractual relations between the masters and the men. If in so doing they committed a tort, it would be no answer to say that they acted upon the advice of a third person, as, for example, their own solicitor; and it is difficult to see how they can be in a better position simply because the advice on which they acted emanated from themselves.

In my judgment the liability of the defendants must turn on the answer to be given to the question whether the circumstances of the case were in fact such as to justify the defendants, or any of them, in acting as they did.

The circumstances were these: Middlemen at Cardiff were attempting to reduce the price of coal, and it was feared that some employers might yield to the pressure of competition and enter into agreements for the sale of coal at prices lower than those existing at the time, with the result that the wages of the miners, which were regulated by a sliding scale, would be reduced.

To counteract this it was considered desirable by the men’s advisers that prices should be sustained by diminishing the output of coal, and that this should be effected by the men taking the holidays complained of. It was not contended or suggested that a limitation of the output of coal was an illegitimate object or aim on the part of the men, or that, if it could have been attained without the breach of contracts (as, for example, by the service of proper notices putting an end to those contracts), the men would not have been within their legal rights. The difficulty which presented itself was this,—that one of the terms of the arrangement under which the sliding scale of wages existed was that notices of the determination of contracts of employment should only be given on the first day of a calendar month to terminate on the last day, and this prevented notices of determination being effective at the desired moment. The critical period was known to occur in October or November. The men persuaded themselves that it was the masters’ interest as well as their own that they should have power to take holidays at this period; but this was a point on which the masters were entitled to have their own opinion; and from what occurred in November, 1900, it was known to the men that the masters’ view did not agree with that of the men. If the men had faith in the soundness of their opinion, their course was to negotiate through the defendants for a modification of the sliding scale arrangement; what they actually thought fit to do was that while insisting on the benefit of the sliding scale they treated themselves as emancipated from the observance of one of the terms on which that scale had been agreed to, although the masters objected, and although the course taken by the men might result in serious damages to the masters, or some of them. This is, I think, a difficult position to maintain. The justification set up seems to me to amount to no more than this—that the course which they took, although it might be to the detriment of the masters, was for the pecuniary interest of the men; and I think it wholly insufficient. The defendants took active steps to carry this policy into effect, and, as I have said, interfered to bring about the violation of legal rights. In my judgment they fail to justify those acts, and the appeal ought to be allowed.

THE COURT declined to grant an immediate injunction, but reserved liberty to the plaintiffs to apply for an injunction in case it should be necessary to do so.

_Appeal allowed._

The defendants appealed to the House of Lords.

The EARL OF HALSBURY, L. C., gave an opinion in favor of dismissing the appeal.

LORD MACNAGHTEN.

* * * * *

But what is the alleged justification in the present case? It was said that the council—the executive of the federation—had a duty cast upon them to protect the interests of the members of the union, and that they could not be made legally responsible for the consequences of their action if they acted honestly in good faith and without any sinister or indirect motive. The case was argued with equal candor and ability. But it seems to me that the argument may be disposed of by two simple questions. How was the duty created? What in fact was the alleged duty? The alleged duty was created by the members of the union themselves, who elected or appointed the officials of the union to guide and direct their action; and then it was contended that the body to whom the members of the union have thus committed their individual freedom of action are not responsible for what they do if they act according to their honest judgment in furtherance of what they consider to be the interest of their constituents. It seems to me that if that plea were admitted there would be an end of all responsibility. It would be idle to sue the workmen, the individual wrong-doers, even if it were practicable to do so. Their counsellors and protectors, the real authors of the mischief, would be safe from legal proceedings. The only other question is, What is the alleged duty set up by the federation? I do not think it can be better described than it was by Mr. Lush. It comes to this—it is the duty on all proper occasions, of which the federation or their officials are to be the sole judges, to counsel and procure a breach of duty.

I agree with Romer and Stirling, L.JJ., and I think the appeal must be dismissed.

LORD JAMES.

* * * * *

In order, therefore, to establish the existence of good cause and excuse, all the defendants can say is, “We, the federation, had the duty cast upon us to advise the workmen. We did advise them to commit an unlawful act, but in giving that advice we honestly believed that they would be in a better financial position than if they acted lawfully and fulfilled their contracts.” Even if it be assumed that such allegations are correct in fact, I think that no justification in law is established by them. The intention of the defendants was directly to procure the breach of contracts. The fact that their motives were good in the interests of those they moved to action does not form any answer to those who have suffered from the unlawful act. During the arguments that have been addressed to your Lordships I do not think quite sufficient distinction was drawn between the intention and the motives of the defendants. Their intention clearly was that the workmen should break their contracts. The defendants’ motives, no doubt, were that by so doing wages should be raised. But if in carrying out the intention the defendants purposely procured an unlawful act to be committed, the wrong that is thereby inflicted cannot be obliterated by the existence of a motive to secure a money benefit to the wrong-doers.

For these reasons I think the judgment of the Court of Appeal should be affirmed.[578]

LORD LINDLEY. My Lords, I agree so entirely with the judgments of Romer and Stirling, L.JJ., that I should say no more were it not for the great importance of some of the arguments addressed to your Lordships on this appeal and which deserve notice.

It is useless to try and conceal the fact that an organized body of men working together can produce results very different from those which can be produced by an individual without assistance. Moreover, laws adapted to individuals not acting in concert with others require modification and extension if they are to be applied with effect to large bodies of persons acting in concert. The English law of conspiracy is based upon and is justified by this undeniable truth.

But the possession of great power, whether by one person or by many, is quite as consistent with its lawful as with its unlawful employment; and there is no legal presumption that it will be or has been unlawfully exercised in any particular case. Some illegal act must be proved to be threatened and intended, or to have been committed, before any court of justice in the United Kingdom can properly make such conduct the basis of any decision.

These remarks are as applicable to trade unions as to other less powerful organizations. Their power to intimidate and coerce is undoubted; its exercise is comparatively easy and probable; but it would be wrong on this account to treat their conduct as illegal in any particular case without proof of further facts which make it so. It is not incumbent on a trade union to rebut any presumption of illegality based only on their power to do wrong. Freedom necessarily involves such a power; but the mere fact of its existence does not justify any legal presumption that it will be abused.

In the case before your Lordships there is proof that the members of the mining federation combined to break and did break their contracts with their employers by stopping work without proper notice and without proper leave. There is also proof that the officials of the federation assisted the men to do this by ordering them to stop work on particular days named by the officials. To break a contract is an unlawful act, or, in the language of Lord Watson in Allen _v._ Flood, [1898] A. C. at p. 96, “a breach of contract is in itself a legal wrong.” The form of action for such a wrong is quite immaterial in considering the general question of the legality or illegality of a breach of contract. Any party to a contract can break it if he chooses; but in point of law he is not entitled to break it even on offering to pay damages. If he wants to entitle himself to do that he must stipulate for an option to that effect. Non-lawyers are apt to think that everything is lawful which is not criminally punishable; but this is an entire misconception. A breach of contract would not be actionable if nothing legally wrong was involved in the breach.

The federation by its officials are clearly proved in this case to have been engaged in intentionally assisting in the concerted breach of a number of contracts entered into by workmen belonging to the federation. This is clearly unlawful, according to Lumley _v._ Gye, 2 E. & B. 216, and Quinn _v._ Leathem, [1901] A. C. 495, and the more recent case of Read _v._ Friendly Society of Stonemasons, [1902] 2 K. B. 732. Nor is this conclusion opposed to Allen _v._ Flood, [1898] A. C. 1, or the Mogul Steamship Company’s Case, [1892] A. C. 25, where there was no unlawful act committed.

The appellants’ counsel did not deny that, in his view of the case, the defendants’ conduct required justification, and it was contended (1) that all which the officials did was to advise the men, and (2) that the officials owed a duty to the men to advise and assist them as they did.

As regards advice, it is not necessary to consider when, if ever, mere advice to do an unlawful act is actionable when the advice is not libellous or slanderous. Nor is it necessary to consider those cases in which a person, whose rights will be violated if a contract is performed, is justified in endeavoring to procure a breach of such contract. Nor is it necessary to consider what a parent or guardian may do to protect his child or ward. That there are cases in which it is not actionable to exhort a person to break a contract may be admitted; and it is very difficult to draw a sharp line separating all such cases from all others. But the so-called advice here was much more than counsel; it was accompanied by orders to stop, which could not be disobeyed with impunity. A refusal to stop work as ordered would have been regarded as disloyal to the federation. This is plain from the speeches given in evidence on the trial; and in my opinion it is a very important element in the case which cannot be ignored.

As regards duty the question immediately arises—duty to do what? The defendants have to justify a particular line of conduct, which was wrongful, i. e., aiding and abetting the men in doing what both the men and the officials knew was legally wrong. The constitution of the union may have rendered it the duty of the officials to advise the men what could be legally done to protect their own interests; but a legal duty to do what is illegal and known so to be is a contradiction in terms. A similar argument was urged without success in the case of the Friendly Society of Stonemasons, [1902] 2 K. B. 732, already referred to.

Then your Lordships were invited to say that there was a moral or social duty on the part of the officials to do what they did, and that, as they acted _bona fide_ in the interest of the men and without any ill-will to the employers, their conduct was justifiable; and your Lordships were asked to treat this case as if it were like a case of libel or slander on a privileged occasion. My Lords, this contention was not based on authority, and its only merits are its novelty and ingenuity. The analogy is, in my opinion, misleading, and to give effect to this contention would be to legislate and introduce an entirely new law, and not to expound the law as it is at present. It would be to render many acts lawful which, as the law stands, are clearly unlawful.

My Lords, I have purposely abstained from using the word “malice.” Bearing in mind that malice may or may not be used to denote ill-will, and that in legal language presumptive or implied malice is distinguishable from express malice, it conduces to clearness in discussing such cases as these to drop the word “malice” altogether, and to substitute for it the meaning which is really intended to be conveyed by it. Its use may be necessary in drawing indictments; but when all that is meant by malice is an intention to commit an unlawful act without reference to spite or ill-feeling, it is better to drop the word malice and so avoid all misunderstanding.

The appeal ought to be dismissed with costs.

_Order of the Court of Appeal affirmed and appeal dismissed with
costs._[579]

JERSEY CITY PRINTING CO. _v._ CASSIDY
COURT OF CHANCERY, NEW JERSEY, DECEMBER 11, 1906.
_Reported in 63 New Jersey Equity Reports, 759._

On motion, on order to show cause, for an injunction to restrain defendants, former employes of the complainant, and now on strike, from unlawful interference with the complainant’s business, the employment of workmen, &c. Heard on bill, answer and affidavits.