Page:Harvard Law Review Volume 8.djvu/516

500 SOO HARVARD LAW REVIEW. Times L. R. 228). The defendant trades union accused the plaintiffs of discriminating against union men, contrary to an agreement with the defendant made by the plaintiffs and other builders. Accordingly, the defendant published and circulated widely a large yellow poster with a "mourning border," headed "Trollope's Black List," giving the names of non-union men employed at the firm's works, and the names of men who had remained on the works after the commencement of a recent strike ordered by the defendant. Messrs. Trollope and several of their employees named in the "black list," brought suit for malicious interfer- ence with their business, and moved for an interlocutory injunction on the ground that the act of the defendants tended to coerce the firm's workmen into leaving, to deter others from entering its employ, and in general to persecute the plaintiffs and bring them into odium and con- tempt with those who might otherwise deal with them. The injunction was granted, and Mr. Justice Kekewich expressly rested his decision on some remarks of Lord Field in the case of The Grafid Mogul Steamship Co. V. Macgregor ('92 App. Cas. 51, 52). In that case Lord Field relied on the opinion of Lord Holt in Keeble v. Heckeringill (11 East, 574), citing these words : " If the acts complained of, though done in the way and under the guise of competition or other lawful right, are in themselves violent or purely malicious, or have for their ultimate object injury to another from ill-will to him, and not the pursuit of lawful rights," then they are actionable if the plaintiff sustains damage thereby. Li the opinion of Kekewich, J., the principal case fell within the lines laid down by Lords Holt and Field. Althougii the defendants sought remotely some benefit to themselves, their principal motive was to injure the plaintiffs, " and to prevent them from carrying on their ordinary trade or business with the freedom which was the privilege of Englishmen." The principles of law underlying this decision seem perfectly sound, and the conclusion correct, assuming the circular to have the effect at- tributed to it by the court. The case belongs to that class of malicious wrongs, not very common, where the damage consists in influencing third persons under no legal duty to the plaintiff. The labor troubles of the past few years have presented us frequently with cases of malicious con- duct uncommon in former times, and toward whose legal construction the older books give little help. The result has been a noticeable develop- ment of this branch of torts within a very short time. It is now generally accepted that a malicious interference with the plaintiffs vested rights, even if they be of contract only, is actionable. But where the act com- plained of consists in maliciously influencing persons who have not yet entered into any legal relation with the plaintiff, the law is by no means generally settled yet. Since Temperton v. Russell {^<)t^, i Q B. D. 715), there has been a decided tendency toward making it a tort maliciously to induce others not to deal or contract with the plaintiff. There are numerous decisions in this country recognizing such a principle, and the principal case seems to belong to this class. For the defendants to circu- late the poster was not unlawful, in one sense of the word. But where their principal object was to injure the plaintiff, and theii ov welfare was only remotely considered, the element of damage to the. plaintiff would seem to outweigh the benefit to the defendants of freedom to pro- tect and further their interests. It may well be that in cases of this sort the defendants' motives might become material. But in the principal case it hardly seems necessary to go beyond external tests of liability.