It would be a reproach to the law if such a claim as the appellant is making in this case could be recov ered. It appears that the late Caleb S. Maltby, who was a man of large means, residing in the State of Connecticut, died there intestate. The principal administration upon his estate was had in that State. But he also owned some valuable leasehold property in the city of Baltimore, which his widow and two daughters sold; they also being residents of Connecticut. They were advised that they could not make a satisfactory title to this Maryland leasehold estate without administering here. Not desiring to be troubled with the details of this administration, and only for the purpose of making a good title to property they had already sold, they requested the late George P. Mott, who was then in their employ, and had been for a long time employed by the late Mr. Maltby, to act as administrator without compensation. He replied that he would be happy to act in the capacity mentioned if it would spare "the ladies trouble and expense." And in the same letter in which he made this statement he estimated that the total expenses of administration, not including attorney's fees, would not exceed $300; giving the two items, viz., State tax on commissions and court expenses, and excluding all commissions for himself, except, of course, sufficient to pay the State tax on administrator's commissions. But in addition to this he stated again and again that he was acting without compensa. tion, and, when congratulated on the fact that he would get commissions on a large estate, he replied that "it did not amount to anything for him-only the honor." But it is conceded that Mr. Mott agreed to act as administrator without compensation. He died, however, before completing the administration, leaving a will in which the appellant, his widow, was named as executrix. She filed a petition in the Or

phans' Court of Baltimore City, claiming commis

sions for her husband as administrator of C. S. Maltby; and the court below refused to allow any and passed an order dismissing her petition. From this order she has appealed. As we have already said, the claim here set up is without merit. In the case of Bassett v. Miller, 8 Md. 548, in which & widow gave up her right to minister upon the estate of her husband in considera. tion of receiving from the party in whose favor she relinquished all the commissions except $100, this court (Mason, J., delivering the opinion) said: "While such contracts should not be encouraged, it is far better, in view of public policy and sound moral ity, that they should be sustained than that conduct should be tolerated by this court by which solemn en. gagements may be repudiated, and fraud and decep tion perpetrated with impunity." But the "engage ment," contract, or whatever it may be called, which was made between the late Mr. Mott and the widow and children of the late C. S. Maltby, by which the former was to act as administrator without commissions, can be sustained upon well settled principles of law. It is said to be without consideration; but not so. The widow and children, in consideration of the agreement of Mr. Mott, not only waived a valuable right (that of administering) which the law (article 93, sec. 18, Code, Md.) vested in them, but they as sumed the obligation of sureties on his bond for the faithful performance of his duties as administrator. These constitute a sufficient consideration. Drury v. Briscoe, 42 Md. 154; Steele v. Steele, 75 Md. 477, 28 Atl. Rep. 959; Ohlendorf v. Kanne, 66 Md. 499, 8 Atl. Rep. 351. As was said in McCaw v. Blewit, 2 MeCord Eq. 90: "He voluntarily undertook the duty under the express stipulation that he would not charge commissions, and he cannot now be permitted to violate that contract. That which was expressly declared to have been intended as a gratuity shall not now be converted into a demand." We do not con sider it necessary to fortify our conclusion by the citation of other authorities, or by a discussion of the right of the orphans' court, in its discretion, to refuse commissions in a case like this. The testator of the appellant made a valid and binding agreement, which was binding upon him during his life, and now that he is dead it is equally binding upon his executrix.

Post. 261. N. 12.

ACTION FOR INDUCING BREACH OF CON TRACT-COMPelling DischaRGE OF SERVANT -LABOR UNION.-The right to recover damages against one for inducing another to break a contract, was affirmed by the Supreme Judicial Court of Maine in Perkins v. Pendleton, 38 Atl. Rep. 96. The court ex the haustively reviewed the authorities upon question as follows:

The plaintiff alleges that upon a certain day he was, and for 22 years prior to that time had been, in the employ of the Mt. Waldo Granite Company ass stone cutter, working by the piece; that he was mak ing large profits out of his employment; that he would have continned in such employment from the day named until the date of his writ "but for the wrong ful acts, inducements, threats, persuasions, and griev ances committed by said defendants against the said plaintiff as hereinafter set forth;" that on the day named, and "at divers other times thereafter until the

date of the plaintiff's writ," the defendants "did unlawfully and without justifiable cause, molest, obstruct, and hinder the plaintiff from carrying on his said trade, occupation, or business as a stone cutter for the said Mt. Waldo Granite Company, and wrong. fully, unlawfully, and unjustly had him discharged without any justifiable cause from the employment of the said Mt. Waldo Granite Company by willfully threatening, persuading, inducing, and by other overt acts compelling, the said Mt. Waldo Granite Company, against its will, and without any desire on its part so to do, to discharge the said plaintiff from its employ for the sole reason that the plaintiff would not become a member in the order of the Mt. Waldo Branch of the Granite Cutters' National Union;" whereby he suffered the injury specially set out in his declaration. Does this statement of facts sufficiently set out an actionable wrong upon the part of the defendants.

That an action lies under certain circumstances for procuring a third person to break his contract with the plaintiff has been frequently decided by the courts of England and of this country.

In Lumley v. Gye, 2 El. & Bl. 216, decided in 1853, the action was for knowingly and maliciously induc. ing an opera singer to break her contract with the plaintiff to perform exclusively for a certain time in his theater. The right of action was sustained by a majority of the court.

In Bowen v. Hall, 6 Q. B. Div. 333, decided in 1881, a person had contracted to manufacture glazed bricks for the plaintiff, and not to engage himself to any one else for a term of five years, The English court of appeals held that an action could be maintained against the defendant for maliciously procuring a breach of this contract, provided damage accrued; and that to sustain the action it was not necessary that the employer and employee should stand in the strict relation of master and servant. It was said by the court in this case: "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. ⚫. 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. Merely to persuade a person to break his contract may not be wrongful in law or fact; 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 an actionable act if injury ensued from it."

The doctrine of these cases has been very generally adopted, and the cases themselves very frequently cited, by the courts of this country. Walker v. Cronin, 107 Mass. 555; Bixby v. Dunlap, 56 N. H. 456; Noice v. Brown, 39 N. J. Law, 569; Haskins v. Royster, 70 N. C. 601; Daniel v. Swearengen, 6 S. Car. 297.

In view of these authorities and others, which it is not necessary to refer to, it must be conceded that for a person to wrongfully—that is, by the employment of unlawful or improper means-induce a third party to break a contract with the plaintiff, whereby injury will naturally and probably, and does in fact, ensue to the plaintiff, is actionable; and the rule applies both upon principle and authority as well to cases

where the employer breaks his contract as where it is broken by the employee; in fact it is not confined to contracts of employment.

But in this case the plaintiff does not allege that the Mt. Waldo Granite Company was induced by the wrongful means adopted by the defendants to break a contract, nor that there was any contract between the plaintiff and the employer for any definite time. We must, therefore, assume that there was none, that either party had the right to terminate the employment at any time, and that the act of the Mt. Waldo Company in discharging the plaintiff was lawful, and one which the company had a perfect right to do at any time. The question presented then, is, whether a person can be liable in damages for inducing and persuading, by threats or other unlawful means, an employer to discharge his employee when the terms of the contract of service are such that the employer may do this at his pleasure, without violating any legal right of the employee. The question is a novel one in this State, but it has already arisen and been passed upon by the courts of some other States.

In Walker v. Cronin, 107 Mass. 555, the plaintiffs alleged that the defendant did "unlawfully and without justifiable cause, molest, obstruct, and hinder the plaintiffs from carrying on" their business of manufacture and sale of boots and shoes, "with the unlawful purpose of preventing the plaintiffs from carrying on their said business, and willfully persuaded and induced a large number of persons who were in the employment of the plaintiff," and others "who were about to enter into" their employment, "to leave and abandon the employment of the plaintiff, without their consent and against their will," and alleged that the plaintiffs lost the services of said person and the profits and advantages they would otherwise have made, and suffered losses in their business. It will be noticed that there is no allegation here of any definite contract as to time between the plaintiffs and their employees who were induced to leave their employment, and one ground of action was that certain persons who were about to enter into their employment, but who had not commenced at the time, were induced to leave and abandon the employment of the plaintiffs. But the court held in an exbaustive opinion which has been frequently cited by other courts in this country, and which was cited by counsel in the argument in Bowen v. Hall, supra, that the action could be maintained. It is said in the opinion: "This [declaration] sets forth sufficiently (1) intentional and willful acts (2) calculated to cause damage to the plaintiffs in their lawful business (3) done with the unlawful purpose to cause such damages and loss, without right or justifiable cause on the part of the defendant (which constitutes malice), and (4) actual damage and loss resulting." The court quotes the general principles as announced in Comyns' Digest. "Action upon the Case:" "In all cases where a man has a temporal loss or damage by the wrong of another, he may have an action upon the case to be repaired in damages;" and goes on to say that "the intentional causing of such loss to another, without justifiable cause, and with a malicious purpose to inflict it, is of itself a wrong." Later in the opinion the court uses this language: "Every one has a right to enjoy the fruits and advantages of his own enterprise, industry, skill, and credit. He has no right to be protected against competition, but he has a right to be free from malicious and wanton interference, disturbance, or annoyance. If disturbance or loss come as a result of competition or the exercise of like right by others, it is damnum absque injuria, unless some

ence,

would have continued, he is liable in damages for such injuries as naturally result therefrom; and that the rule is the same whether by these wrongful means a contract of employment definite as to time is broken, or an employer is induced, solely by reason of such procurement, to discharge an employee whom he would otherwise have retained.

The case of Heywood v. Tillson, 75 Me. 225, in no way conflicts with this result. There the court simply decided that the defendant was not liable for doing what he had a perfect and absolute right to do, even if in doing this he was actuated by a malicious motive against the plaintiff. Many cases were cited to the effect that "malicious motives make a bad act worse, but they cannot make that wrong which in its own essence is lawful."

We think that the important question in an action of this kind is as to the nature of the defendant's act, and the means adopted by him to accomplish his purpose. Merely to induce another to leave an employment, or to discharge an employee, by persuasion or argument however whimsical, unreasonable, or absurd, is not, in and of itself, unlawful, and we do not decide that such interference may become unlawful by reason of the defendant's malicious motives, but simply that to intimidate an employer by threats, if the threats are of such a character as to produce this result, and thereby cause him to discharge an employee whom he desired to retain, and would have retained, except for such unlawful threats, is an actionable wrong. Nor do we differ from the recent decision of the Vermont court in the case above referred to, which holds that a threat to do what the defendant had a right to do would not be such a one as to make a defendant liable in an action of this kind.

ILLEGAL TRADE RIVALRY.

As was noticed at some length in a previous article,1 a person is allowed great liberty in conducting his business and governing his trade relations. There are of course lines of business which the law does not allow because against public policy, and a person may not conduct his business in a way or in a place which would render it a nuisance to society. With such restrictions we have nothing to do in the present article. We shall not treat of the relation of a man's business to society but to individuals who may be injured by the manner in which the business is conducted. In the previous article referred to we noticed that injurious acts of trade competition might be done from mere whim or caprice, or even with a bad motive, and the law refuse to consider the motive lest in the complications and uncertainties which would arise from such consideration, the freedom of competition should be impaired. We shall in this article endeavor to circumscribe these 143 Cent. L. J. 302.

privileges of legitimate trade competition and disclose the boundary where the law says thus far and no farther. Although many acts of trade rivalry done to the injury of another do not create legal liability the law looks upon them with disfavor, and if they are to go unpunished they must come strictly within the limits of legitimate competition. As a broad and general proposition, while a person for whatever motive may enter into, or continue, or refuse to enter into or continue business relations with another without liability because of any malicious intent, it is not his privilege to maliciously influence another in the conduct of his business so as to willfully injure a third person. In Delz v. Winfree the syllabus of the report states the question at issue as follows: "No action for conspiracy will lie by a butcher against several dealers in beef cattle because they have combined to refuse to sell him beeves, but where the petition further alleges that defendants also induced a dealer in slaughtered meat to likewise refuse to sell him, such interference with his business is a cause of action." And the following from the opinion of the court will give the substance of the court's decision: "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 law which forces a man to part with his title to his property.' The privilege here asserted must be limited, however, to the individual actions 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." This quotation, which is unquestionably good law, has expressed the distinction which we are seeking as clearly as we could by extended comment. A comparison between

2 Delz v. Winfree, 16 S. W. Rep. 111; Olive v. Van Patten, 25 S. W. Rep. 428; Moores & Co. v. The Bricklayers' Union, No. 1, VII R. & C. L. J. 108; Van Horn, 52 N. J. Law, 284; Jackson v. Stanfield, 36 N. E. Rep. 345; Temperton v. Russell, 4 Reports (Q. B. A.) 376; Curran v. Galen, 22 N. Y. S. 826; Consolidated Steel & Wire Co. v. Murray, 80 Fed. Rep. 811; State v. Glidden, 55 Conn. 46; State v. Dyer, 67 Vt. 690; Murdock v. Walker, 152 Pa. St. 595; Vegelahn v. Guntner, 44 N. E. Rep. 1077.

Lumley v. Gye3 and Boulier Bros. v. Macauley, will aid us in distinguishing between legitimate and illegal competition. In both of these cases, one who had contracted to perform at a theater was induced to break her contract. In both cases the result was injury to the one with whom the singer had first contracted. In the English case the party who caused the breach of contract and consequent injury to the other party was held liable. In the Kentucky case he was not held liable. The reason for the distinction is not difficult of comprehension. There is nothing to show in the former case that the party inducing the singer to break her contract wished to secure her performance at his theater, or had any motive in the line of trade competition. In the latter case there was no intention shown to injure the owner of the theater who had first hired Mary Anderson, and the injury to him may be considered only an incident. The manager of a rival theater wanted Mary Anderson to play at his theater and hired her to play on the same night upon which she had previously agreed to perform at the theater with whose owner she first contracted; and in consequence of this, her contract with the first theater owner was broken. Granting, however, that in the Kentucky case an intention to do injury to the one who first hired Mary Anderson had been the controlling motive of the one who afterwards employed her under circumstances which caused her to break her first contract, then in both cases the injury would have been intentional. The distinction would undoubtedly have been the same; for in the Kentucky case the defendant was exercising his right to employ whomsoever he pleased, and the court could not, if our contention in our former article is correct, go beyond that right to inquire into his motive or consider the broken contract. In the English case the defendant was not so shielded. The court in deciding the Kentucky case, however, did not draw this distinction which we have just made. Although they reached, as it seems to us, a correct decision, in explaining their decision they became entangled in an erroneous consideration of the motive. An employee may quit work, or threaten to quit, regardless of his motive, even though his acts are prompted alone by

3 2 El. & Bl. 216.

4 91 Ky. 140.

a desire to injure his employer or some third person, but if some third person induces the employee to quit work, with the intention of injuring the employer, and not to secure the services of the one whom he induces to quit, the employer may hold such third person in damages for the injury. Again an employer may discharge his employee, and, therefore, may threaten to discharge him, if he does not conform to certain requirements, even if in so doing his object is solely to injure his employee or a third person; but what an employer may do of his own accord without lis bility, another person may not induce him to do. This is very clearly stated in Chipley v. Atkinson. The syllabus of the report states the case as follows: "An action lies in behalf of an employee against a person who has ma liciously procured an employer to discharge such employee from employment in which he is engaged under a legal contract for a cer tain period, provided damage result to the employee from such discharge." After reciting authorities at length the court says, "From the authorities referred to in the preceding paragraph and upon principle, it is apparent that neither the fact that the term of service interrupted is not for a fixed period, nor the fact that there is not a right of action against the person who is induced or influenced to terminate the service or to refuse to perform his agreement, is of itself s bar to an action against the third person maliciously and wantonly procuring the termination of or a refusal to perform the agreement. It is the legal right of the party to such agreement to terminate it or to refuse to perform it, and in so doing he violates no right of the other party to it, but so long as the former is willing and ready to perform, it is not the legal right but is a wrong on the part of the third party to maliciously and wantonly procure the former to terminate or refuse to perform it." As we have intimated when one causes another to change his trade rela tions with a third person to the injury of the third person the motive with which it is done

5 Lumley v. Gye, 2 El. & Bl. 216; Bowen v. Hall, 6 L. R. (Q. B. D.) 333; Haskins v. Royster, 70 N. C. 601; Carew v. Rutherford, 106 Mass. 1; Walker v. Cronin, 107 Mass. 555; Consolidated Steel & Wire Co. v. Mur. ray, 80 Fed. Rep. 811; Sherry v. Perkins, 147 Mase, 212; Thomas v. C., N. O. & T. P. By. Co., 62 Fed. Rep. 803.

Chipley v. Atkinson, 1 South. Rep. 934; Curran v. Galen, 22 N. Y. S. 826; State v. Glidden, 55 Conn. 46.