Sec 439

Not only has every man a right to a market for his

1 Boynton, C. J., West. Un. Tel. Co. v. Griswold, Sup. C.t. Ohio, 1882, 25 Alb. L. J. 190; White v. West. Un. Tel. Co., U. S. Cir. Ct. Kan. 1882, 14 Cent. L. J. 481. In West. Un. Tel. Co. v. Neill, Sup. Ct. Tex. 1881, we have the following: -.

"In accordance with these principles, and which have been often recognized by the legislative departments also, it may now be considered as settled law, that telegraph companies can, by express contract or by proper rules and regulations contained in printed notices, or otherwise, and brought to the knowledge of those with whom they deal, under such circumstances as to create an implied contract, limit their liability for delays and errors in transmitting and delivering messages; except when caused by the misconduct, fraud, or want of due care on the part of the company, its servants or agents.

" In cases of this character, that exemption from liability cannot be claimed for such misconduct, fraud, or want of due care, is a cardinal doctrine of the common law which has become deeply rooted into our own jurisprudence, and the wisdom of which has received the sanction of ages. 2 Sedg. on Dam. (7th ed.) 130; 2 Redf. on Railw. (4th ed.) 290; 2 Thomp. on Neg. 839, sec 4; West. Un. Tel. Co. v. Carew, 15 Mich. 525; Ellis v. Tel. Co., 13 Allen, 226; Birney v. Tel. Co., 18 Md. 358; U. S. Tel. Co. y. Gilder-sleeve, 29 id. 232; Breese v. Tel. Co., 45 Barb. 274; reaffirmed, 48 N. Y. 132; Camp v. Tel. Co., 1 Metc. (Ky.) 164; Passmore v. Tel. Co., 78 Penn. St. 238; Aiken v. Tel. Co., 5 S. C. 358." S. P., West. Un. Tel. Co. v. Blanchard, 66 Ga. A limitation of liability on half-rate night messages to ten times the amount paid for the message was held in this case reasonable; and the court went on to say: -

"Another regulation of telegraph companies held to be reasonable by the great weight of authority is the right to demand, in a proper case, as a condition of liability, that the message be repeated at a reasonable cost. 2 Sedg. on Dam. (7th ed.) 130; 2 Redf. Railw. 290, sec 17, note 15; 2 Thomp. on Neg. 841, sec 6; West. Un. Tel. Co. v. Carew, 15 Mich. 525; Ellis v. Tel. Co., 13 Allen, 226; Redpath v. Tel. Co., 112 Mass. 71; Grinnell v. Tel. Co., 113 id. 299; Wann v. Tel. Co., 37 Mo. 472; Breese v. Tel. Co., 45 Barb. 274; reaffirmed, 48 N. Y. 132; Camp v. Tel. Co., 1 Metc. (Ky.) 164; Pass-more v. Tel. Co., 78 Penn. St. 238; MacAndrew v. Tel. Co., 17 C. B. 3; S. C, 33 Eng. L. & Eq. 180." 609 labor of which he cannot absolutely divest himself, but the community has a right to obtain labor, as it would obtain any other commodity, at the price at which it would be fixed under the ordinary laws of supply and demand. Hence, combinations to monopolize the labor of a community by refusal of the parties combining to do work except at a fixed price, have been held, when undue influence is used to prevent others from laboring at a lower price, or a labor-famine is thereby induced, indictable as conspiracies at common law. But to constitute such illegality, the use of undue influence, amounting to either force or fraud, must be part of the agreement, or the agreement must amount to an entire absorption of the particular kind of labor, so as to establish virtual duress. "I cannot bring myself to believe," said Lord Campbell,1 " without authority much more cogent, that if two workmen who sincerely believe their wages to be inadequate should meet and agree that they would not work unless their wages were raised, without designing or contemplating violence, or any illegal means for gaining their object, they would be guilty of a misdemeanor, and liable to be punished by fine and imprisonment. The object is not illegal, and therefore, if no illegal means are to be used, there is no indictable conspiracy." If the object is not illegal, then an agreement otherwise valid does not become invalid because this ingredient enters into its composition. But the presence of either of the above qualifications makes the agreement invalid. (1) We must, therefore, predicate this invalidity of an agreement to keep other operatives out of employment by threats or fraud.2 (2) And we must further hold, that when the object is to monopolize all the labor of a particular community, then, like all other attempts to monopolize for extortionate purposes a necessary staple, the agreement is to obtain an advantage by duress, and will not, therefore, be enforced.3 The duress is analogous to that already noticed in cases where money paid by a party to one refusing otherwise to deliver goods, has been recovered back.1 It is as much against the policy of the law to absorb all the labor in the community, so as to compel employers to pay extortionate prices, as to buy up the necessaries of life, so as to obtain extortionate prices, or to hold back goods from their owner until an extortionate bonus is paid for them.

Agreements limiting the price of labor void.

1 Hilton v. Eckersley, 6 E. & B. 62.

2 R. v. Hewitt, 5 Cox, C. C. 162; R. v. Rowlands, 5 Cox, C. C. 436; 17 Q. B. 671.

3 1 Hawk. P. C. c. 80, s. 3; 3 Inst.

196; Wh. Cr. L. 8th ed. sec 1366; 1 Bl. Com. 158; R. v. Webb, 14 East, 406; R. v. Waddington, 1 East, 143; People v. Fisher, 14 Wend. 9.