Mass. 464, 111 N. E. 358, L. R. A. 1916D,, cluding his employers provides, that The first paragraph of the amended bill * * * It is unnecessary to pass on the validity of the agreement which is an instrument under seal, or to decide whether the manufacturers or the members of the association could have compelled specific performance, for in the light of the findings quoted this defence vanishes. [4] It is true that the fifth, and in this connection the important, article of this agreement or "Peace Pact" entered into by the association when the plaintiff was a 66 so long as these local unions are in a position to furnish help to do the work no other help may be employed." The defendants nevertheless were not seeking its protection for the economic purpose of furnishing work for their own members, where if this were not done there would not be enough work to keep them employed, which was the motive underlying the strike decided to be lawful in Minasian v. Osborne, 210 Mass. 250, 96 N. E. 1036, 37 L. R. A. (N. S.) 179, Ann. Cas. 1912C, 1299. Nor were they actuated by a desire to conserve and promote the welfare of the plaintiff and his employers through the offer of friendly advice. Tasker v. Stanley, 153 Mass. 148, 150, 26 N. E. 417, 10 L. R. A. 468. But to preserve and to compel discipline in their own ranks they intended to proscribe the plaintiff, who had become a member of a rival organization and business competitor of the association. It may be added, that at the date of the agreement the plaintiff had been employed for many years under a contract at will which does not appear to have been dependent upon a condition that he should be and remain a member of any organization. The plaintiff's expulsion did not automatically terminate this employment, and his continuance at his work until retired solely through their efforts, did not as between themselves constitute a breach of the peace pact or agreement for which he would be liable to the defendants in damages. Warren v. Stearns, 19 Pick. 73; Byrne v. Dorey, 221 Mass. 399, 404, 109 N. E. 146; Moran v. Dunphy, 177 Mass. 485, 59 N. E. 125, 52 L. R. A. 115, 83 Am. St. Rep. 289. The report while stating that the plaintiff has lost the benefit of his contracts of employment goes further. It is specifically found "that by reason of the control which the defendants and their organization exercised over the shoe industry of the city of Lynn it will be impossible for the plaintiff to obtain work with at least ninety per cent. of the shoe manufacturers of Lynn in which the labor is controlled by the United Shoe Workers of America and further as a marked man it is highly improbable that he could obtain and keep employment in the remaining ten per cent. of the shoe factories of Lynn." [5, 6] The plaintiff manifestly is a sufferer from the consequences of an intentional and a successful boycott. If he had ceased to work at his calling and had engaged in trade the attempt to deprive him of his customers and to destroy his business by the methods described would have been under the master's findings an actionable wrong. Burnham v. Dowd, 217 Mass. 351, 104 N. E. 841, 51 L. R. A. (N. S.) 778. The right to acquire property by labor is coequal with the right to acquire property by contract and having the same right to sell his labor as he [Ed. Note. For other cases, see Injunction, Dec. Dig. 63.] 5. APPEAL AND ERROR 173(6) UNTRIED THEORIES-REVIEW. In a suit by members and representatives of a labor union to enjoin another union from breaking certain agreements between plaintiff union and employers, where the trial did not proceed on the issues of the defense of monopoly and violation of Stats. 1911, c. 503, added to the answer by amendment, it was unnecessary to consider such issues on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1088; Dec. Dig. 173(6).] Appeal from Supreme Judicial Court, Suffolk County. nighest bidder, it is no less an actionable sion of the contracting union's right, which wrong where the right to his handiwork as would be enjoined. a means of subsistence has been malevolently taken away or impaired under industrial conditions which the defendants knew would so operate as to make his further employment in the community where he resides extremely precarious if not practically impossible. Berry v. Donovan, 188 Mass. 353, 355, 74 N. E. 603, 5 L. R. A. (N. S.) 899, 108 Am. St. Rep. 499, 3 Ann. Cas. 738, and cases cited; Hoban v. Dempsey, 217 Mass. 166, 170, 104 N. E. 717, L. R. A. 1915A, 1217, Ann. Cas. 1915C, 810; Cornellier v. Haverhill Shoe Manufacturers Assn., 221 Mass. 554, 561, 109 N. E. 643, L. R. A. 1916C, 218; Bogni v. Perotti, 224 Mass. 152, 112 N. E. 853; Martin's Modern Law of Labor Unions, § 132. While it is apparent upon the record that the plaintiff cannot be effectively aided by injunctive relief he is entitled to damages. Perry v. Pye, 215 Mass. 403, 413, 102 N. E. 653; New England Cement Gun Co. v. McGivern, 218 Mass. 198, 204, 105 N. E. 885, L. R. A. 1916C, 986. The decree dismissing the bill is reversed and a decree with costs is to be entered for the amount assessed by the master. Ordered accordingly. (226 Mass. 25) TRACEY et al. v. OSBORNE et al. 1. APPEAL AND ERROR 907(2)-FINDING OF [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 2911-2913, 2915, 2916; Dec. Dig. 907(2).] 2. APPEAL AND ERROR -PRESUMPTION. 931(10)-FINDINGS In the absence of specific findings, it may be presumed in favor of the master's general finding that certain agreements between a labor union and certain manufacturers were proper and executed in the manner and by the agencies provided by the constitution of the union that the powers exercised might be delegated by the union's general executive board. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3728; Dec. Dig. 931(10).] 3. CONSPIRACY 8 CONTRACTS WITH EMPLOYERS-LEGALITY. An agreement stipulating that one named labor union, so long as it was able to do it, should have all the work of a particular employer, freely entered into for no purpose other than the mutual advantage of the contracting parties, was within the limitation of allowable competition, and legal. [Ed. Note. For other cases, see Conspiracy, Cent. Dig. §§ 7-11; Dec. Dig. 8.] 4. INJUNCTION 63 INDUCING BReach of CONTRACT. Where a labor union and certain employers stipulated that the union, so long as it was able to do it, should have all the employers' work, another labor union's exertion of pressure upon the employés to break the contract was an inva Suit in equity for an injunction by Michael J. Tracey and another against Robert M. Osborne and others. Decree for plaintiffs, and defendants appeal. Decree affirmed. Philip A. Kiely, of Lynn, for appellants. Fredk. W. Mansfield, of Boston, for appellees. RUGG, C. J. The plaintiffs are members and representatives of a labor union called the United Shoe Workers of America. The defendants formerly members of the same union, are now members and representatives of another union called the Lasters' Protective Union of Lynn. Both these unions are voluntary unincorporated associations. This is a suit in equity whereby the plaintiffs seek to restrain the defendants from taking any action to cause or intended to cause any parties to break certain agreements, to which the plaintiffs are parties, to employ members of the plaintiff union, and particularly from calling any strike directed to that end. The case was sent to a master, whose findings so far as now material are that for several years prior to 1915, there existed in the city of Lynn several local branches of the United Shoe Workers. Composed of three delegates from each of these branches was a suborganization known as Joint Council No. 1, designed to secure concentration of authority and efficiency of administration. It was authorized by the constitution of the union "to make agreements with manufacturers when prices and conditions are satisfactory to said Joint Council. Said agreement (sic) to be of a uniform nature and to be issued by the General Executive Board." In the early part of 1915, at the initiative of one Enwright, the publisher of a newspaper in Lynn, there was a movement for the purpose of formulating some agreement between manufacturers and workmen to promote industrial peace. As a result an agreement popularly known as the "Peace Pact" was framed. These agreements, identical in form, each to be signed by a representative of the Joint Council No. 1 of the United Shoe Workers, and by some manufacturer who chose to adopt it, were to continue in force one year with stipulation for further exten For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes sion and provided for the adjustment of any Į plaintiff union, or for any purpose other than differences that might arise between the contracting parties and that there should be no strikes or lockouts or cessation of work pending a decision as to differences, and that all work of the employer in certain designated rooms and departments should be done by members of the United Shoe Workers, and that, so long as there was a sufficient number of these to do the work, no other help be employed. Other clauses regulated different aspects of the relations between the employer and the members of the plaintiff union. the mutual advantage of the contracting parties. It was entered into freely and not under compulsion or coercion. It was not entered into with a purpose to harm anybody. This does not infringe upon the principles established in Berry v. 'Donovan, 188 Mass. 353, 74 N. E. 603, 5 L. R. A. (N. S.) 899, 108 Am. St. Rep. 499, 3 Ann. Cas. 738, and Shinsky v. Tracey, 114 N. E. 957, for decisive facts there present are not found in the case at bar. The case at bar also is distinguishable from Folsom v. Lewis, 208 Mass. 336, 94 N. E. 316, 35 L. R. A. (N. S.) 787, Hanson v. Innis, 211 Mass. 301, 97 N. E. 756, and similar decisions. [4] The finding that the defendants have [1, 2] The master found that the agreements were prepared and executed in the manner and by the agencies provided by the constitution of the United Shoe Workers. There are no subsidiary findings inconsist-sought to exert pressure upon some of the ent with this general conclusion and, since the evidence is not reported, it must stand. The form of the agreement was indorsed unanimously by the resident committee of the general executive board and copies of it were printed by the general executive board and furnished to the Joint Council No. 1. This might have been found to be a substantial compliance with terms of the governing article of the constitution. The general executive board appears to have acted in some respects through what is termed a resident committee. Its powers by custom or otherwise are not set out in the master's report. In the absence of specific findings it may be presumed in favor of the general finding that the powers here exercised may be delegated | by the general executive board. So far as the agreement was modified, after approval by the general executive board, if indeed in any instance there was a material change, it does not appear to affect any of the manufacturers referred to in the report as having signed the contract. employers to break their contracts of employment with members of the plaintiff union is direct and unequivocal and is supported by ample facts set forth in the report. Such conduct was a clear invasion of rights of the plaintiff for which the law will provide a remedy. Berry v. Donovan, 188 Mass. 353, 74 N. E. 603, 5 L. R. A. (N. S.) 899, 108 Am. St. Rep. 499, 3 Ann. Cas. 738; Truax v. Raich, 239 U. S. 33, and cases cited at 38, 36 Sup. Ct. 7, 60 L. Ed. 131. L. R. A. 1916D, 545. The rights secured to the plaintiffs under their contracts are such as are protected in the ordinary case by injunction. Beekman v. Masters, 195 Mass. 205, 80 N. E. 817, 11 L. R. A. (N. S.) 201, 122 Am. St. Rep. 232, 11 Ann. Cas. 332. This principle often has been applied to labor cases and is pertinent to the facts here disclosed. Bogni v. Perotti, 224 Mass. 152, 153, and cases cited at 153, 112 N. E. 853; Fairbanks v. McDonald, 219 Mass. 291, 106 N. E. 1000; Burnham v. Dowd, 217 Mass. 351, 104 N. E. 841, 51 L. R. A. (N. S.) 778; Reynolds v. Davis, 198 Mass. 294, 84 N. E. 457, 17 L. R. A. (N. S.) 162. [5] The defense of monopoly and violation of St. 1911, c. 503, was added to the answer by amendment after the master's report was [3] The contract in its general outlines is similar to that held legal in Hoban.v. Dempsey, 217 Mass. 166, 104 N. E. 717, L. R. A. 1915A, 1217, Ann. Cas. 1915C, 810. In this aspect the case at bar is governed by that defiled. cision. It is putting in the form of an agreement a stipulation that one named labor union shall have, so long as it is able to do ít, all the work of the particular employer, a demand held to be within the limits of allowable competition in Pickett v. Walsh, 192 Mass. 572, 584, 78 N. E. 753, 6 L. R. A. (N. S.) 1067, 116 Am. St. Rep. 272, 7 Ann. Cas. 638. The contract does not appear to have been made for the purpose of injuring the defendants. who then were members of the It is manifest that the trial did not proceed on these issues. The mind of the master was not directed to them. The report is not framed with a view to the determination of these questions, and it is lacking in a finding of facts directed to that end and essential for a decision. Hence it is unnecessary to consider these points. See Hoban v. Dempsey, 217 Mass. 166, 104 N. E. 717, L. R. A. 1915A, 1217, Ann. Cas. 1915C, 810, and cases cited at 171. Decree affirmed with costs. (186 Ind. 67) GREER v. LAKE et al. (Supreme Court of Indiana. (No. 23199.) Under the provisions of section 1391, Burns 1914, jurisdiction in such event is given to this court. Chicago, etc., R. Co. v. Anderson, 1. HIGHWAYS 41(1)-REPORT OF VIEWERS-182 Ind. 140, 105 N. E. 49; P., C., C. & St. LAND ACQUIRED-STATUTE. L. Ry. Co. v. Sneath Glass Co., 183 Ind. 138, 107 N. E. 72. Appellant was the contractor to build a free gravel road under the gravel road law. Section 7711 et seq., Burns 1914. The act complained of was that of removing soil from certain of appellees' lands lying adjacent to the road constructed. Under Burns' Ann. St. 1914, § 7717, requiring road viewers and the surveyor to pre pare a report containing the plans and specifications of the proposed highway which shall be accompanied by an accurate profile made by the engineer, and section 7718, providing that the report shall remain on file ten days during which any party interested may examine it, and that the viewers shall assess damages just- There is no dispute as to the facts. It aply due to any infant or incompetent person, and pears that the road in question was duly orto any other person making a written claim therefor on account of the appropriation or in-dered built and the contract regularly let, jury to his property by the establishment or and that the engineer and superintendent of improvement of the highway, and that no dam- construction was properly appointed; that ages shall be recovered by any competent per- appellees made no application to the viewers son unless claim shall have been made to the for damages as provided by section 7718, viewers before filing the supplemental report showing the damages awarded, a party inter- Burns 1914, and none was allowed; that a ested is required to examine only the report report was properly filed by the engineer and of the viewers to determine what land is to be viewers containing complete plans and spectaken, and a notation on the profile, made by the engineer, that additional land was to be ifications together with a profile of the road. taken, is not notice thereof, since it was the It also appears that there was written on the intention of the Legislature to authorize land profile, at the time it was submitted with the to be taken and to require the report to describe the land sufficiently, so that owners could plans and specifications, the following notadetermine what was to be taken and make claim tion: therefor.' [Ed. Note. For other cases, see Highways, Cent. Dig. $$ 90, 108-111, 114-116; Dec. Dig. 41(1).] 2. EMINENT DOMAIN 234(2)-ACQUISITION OF LAND-DESCRIPTION-SUFFICIENCY. A memorandum that, at all places where it was necessary to go outside the line of the proposed highway to get dirt for embankments, it should be taken from the strip of ground of a certain width on either side of said embankment, but that the inner edge of such excavation should not be nearer than a certain distance to the edge of the embankment, and that the dirt for such purpose was thereby condemned, is too uncertain and indefinite to appropriate the lands required for the taking of such dirt, since it would require the owner to employ an engineer to determine whether any of his lands were to be taken and how much. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 594; Dec. Dig. 234(2).] Appeal from Circuit Court, Morgan County; Nathan A. Whitaker, Judge. Action by Martin Lake and others against James W. Greer for damages for trespass to real property. Judgment for the plaintiffs for $40, and defendant appealed to the Appellate Court, which transferred the cause to the Supreme Court (114 N. E. 699). Judgment affirmed. Kivett & Kivett, of Martinsville, for appellant. Wm. H. Pigg and Homer L. McGinnis, both of Martinsville, for appellees. "At all places along the line of this road where cuts or fills make it necessary to have a right of way wider than 30 feet, the said right of way shall be wide enough to enable the contractor to build the subgrade 20 feet wide with ditches and side slopes as herein specified. "At all places where it is necessary to go outside of the line of the road to get dirt for embankments, it shall be taken from a strip of ground 33 feet wide on either side of said embankment, but the inner edge of such excavation shall not be nearer than 3 feet to the edge of said embankment. "The dirt for such purpose is hereby condemned." At the trial appellant offered this notation as evidence and offered also to prove that all the damage complained of was within the specification of this notation. The court refused both offers of evidence. Appellant admitted that he had taken the land complained of. In this court appellant assigns as error the action of the court in overruling his motion for a new trial. The only errors thus assigned and relied on in appellant's points and authorities are the error of the court in refusing the offered evidence above referred to, and in giving, over appellant's objection, instruction numbered 5. Instruction 5 is as follows: in question, but insists that in doing so he was "The defendant admits the taking of the dirt acting under a contract with the board of commissioners to construct and build a highway. 1 instruct you that said contract did not authorize said highway, and, if he did so, he would be liathe defendant to go outside of the lines of ble to the owner of the real estate from which he took such dirt for the damages to said estate." LAIRY, C. J. This appeal is from a judgment in the trial court for damages in the sum of $40 for trespass to real property owned jointly by appellees. As the amount in controversy is less than $50. nó appeal [1] The evidence in question was excludwould lie to either the Supreme or Appel-ed and the instruction given on the theory late Courts except for the fact that there is that the strip of land from which the dirt in controversy the construction of a statute. was taken had not been condemned. Appel For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 114 N.E.-61 lant asserts that the plans, specifications, | determining whether or not there was a and profile contained notice of the intention declaration of an intention to appropriate to condemn the land which was taken, and any part of his land, a party interested that, if appellees desired to receive compen- would be required only to examine the resation therefor, they were required to pro- port of the viewers, and a notation indorsed ceed in accordance with section 7718, Burns on the profile prepared by the engineer would 1914. Section 7717 of the statute provides be no notice to him of such intention, even that it shall be the duty of the viewers and though it were in proper form and otherwise surveyor to prepare and file in the office sufficient. of the county auditor a report prepared by [2] The memorandum on the profile was them containing, among other things, com- too uncertain and indefinite to constitute a plete plans and specifications of the pro- notice to any one of an intention to approposed highway, which report "shall be ac- priate any part of his lands for the procompanied by an accurate profile of each posed improvement. It does not specifically highway or part of highway to be improved, describe any land which would be affected showing by proper lines and figures the ele by the construction of the proposed cuts vation thereof at each one hundred feet of or grades or from which dirt would be reits length and the changes to be made there- moved in their construction in the manner in by excavation or filling, which profile proposed. It is evident that it would require shall be made by the engineer." It must the services of an engineer to ascertain what be observed that the report containing the lands would be affected by the removal of complete plans and specifications is required dirt to make the fills. It cannot be presumed to be made and filed by the viewers, and that the lawmakers intended that private that the profile is to be made by the engi- property should be taken for a public use neer and is to accompany the report when without some more definite notice to the made. Section 7718 provides that said re- owner of the intention to make the approport shall remain on file ten days, during | which time any party interested may examine it. This section further provides that during such time said viewers shall assess such damages as shall be justly due to any infant, idiot, or person of unsound mind, and to any other person or corporation making written claim therefor, on account of the appropriation of or injury to his property by the laying out or establishing of any such new highway or any improvement of any highway prescribed in such report. The section also provides that, at the next regular term of the board of commissioners, after the expiration of the said ten days, the viewers shall file a supplemental report setting forth the sums allowed as damages, together with a description of the property in each case on account of which such damages have been allowed, and that no damages shall be recovered by any person other than an infant, idiot, or person of unsound mind unless claim therefor shall have been made by him to such viewers before the filing of such supplemental report. priation. There was no error in giving the instruction complained of or in refusing to admit the offered evidence. Judgment affirmed. (186 Ind. 471) CINCINNATI, H. & D. R. CO. v. GROSS. * (No. 23209.) (Supreme Court of Indiana. Jan. 30, 1917.) 1. APPEAL AND ERROR 193(9)—FAILURE TO DEMUR-EFFECT. ating grounds of demurrer to a complaint and In view of Acts 1911, c. 157, § 2, enumerproviding that when a demurrer is filed on the ground that the complaint does not state a cause of action, a memorandum shall be filed, stating wherein such pleading is insufficient, and that waive his right and therefore to question the the party so demurring shall be deemed to same for any defect not so specified, in a railroad servant's action for injuries, by failing to demur to a complaint, defendant waived a consideration of its sufficiency to state a cause of action, and cannot, on appeal, predicate error in the giving of an instruction which authorized a verdict upon proof of material allegations of the complaint. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1232-1236; Dec. Dig. 193(9); Pleading, Cent. Dig. § 1366.] 2. APPEAL AND ERROR 171(3) — REVIEW THEORY OF CASE. The sections of the statute to which reference has been made clearly indicate an intention on the part of the Legislature to authorize the appropriation of land for the laying out of a new highway or for the im-struction placed on it by the trial court, that Where a complaint is fairly open to the conprovement of any highway as prescribed in construction will be adopted on appeal though the report. It is equally clear that the re- the complaint is open to another and equally port must show an intention to appropriate reasonable interpretation. lands with a sufficient description thereof to enable a person whose lands would be affected thereby to determine from an examination of such report that it was the purpose to appropriate a specific part of his lands, otherwise he could have no opportunity to make a claim for damages as pro vided by the statute. For the purpose of [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1056-1061; Dec. Dig. 171(3).] 3. APPEAL AND ERROR 216(2)-PRESERVATION OF GROUNDS OF REVIEW-INSTRUCTION -NECESSITY OF REQUEST. utory rule that contributory negligence under Where instructions which applied the statfederal Employers' Liability Act, April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1913, §§ For other cases sec same tcpic and KEY-NUMBER in al! Key-Numbered Digests and Indexes |