This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
If a combination of persons, acting in conspiracy, attempts to compel one person to break a contract with another, a question is presented which in some respects is different from that in which one person induces or compels a breach of contract, since threats made by a number of persons, or by one person who controls a number of persons, may. involve consequences very different from threats made by a single person.1 If two or more persons unite for the purpose of accomplishing a given result, such combination is unlawful either if they intend to accomplish an unlawful purpose or if they use unlawful means in accomplishing a lawful purpose.2
9 People's Land & Manufacturing Co. v. Beyer, 161 Wis. 349, L. R. A. 1916B, 813, 154 N. W. 382.
10 Heywood v. Tillson, 75 Me. 225, 46 Am. Rep. 373.
11 Passaic Print Works v. Dry Goods Co., 105 Fed. T63, 62 L. R. A. 673, 44 C. C. A. 426.
1 England. Quinn v. Leathern , App. Cas. 495 [affirming Leathern v. Craig, 2 Ir. Rep. (1899), 667]; Read v. Friendly Society of Operative Stonemasons , 2 K. B. 732; Giblan v. National Amalgamated Laborers' Union , 2 K. B. 600.
United States. Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229, L. R. A. 1918C, 497; Niles-Bement-Pond Co. v. Iron Molders' Union, 246 Fed. 851.
Massachusetts. Martell v. White, 185 Mass. 255, 102 Am. St. Rep. 341, 64 L. R. A. 260, 69 N. E. 1085; Pickett v. Walsh, 192 Mass. 572, 116 Am. St. Rep. 272, 6 L. R. A. 1067, 78 N. E. 753.
Nebraska. Marsh-Burke Co. v. Yost, 98 Neb. 523, 153 N. W. 573.
Wisconsin. Martens v. Reilly, 109 Wis. 464, 84 N. W. 840. "We have now arrived at the point where a labor union, being an organization brought about by the exercise on the part of its members of the right of every . citizen to pursue his calling as he thinks best, is limited in what it can do by the existence of the same right in each and every other citizen to pursue his and their calling as he or they think best.
"In addition to the limitation thus put on labor unions, there is a fact which puts a further limitation on what acts a labor union can legally do. That is the increase of power which a combination of citizens has over the individual citizen. Take, for example, the power of a labor union to compel by a strike compliance with its demands. Speaking generally, a strike, to be successful, means not only coercion and compulsion, but coercion and compulsion which, for practical purposes, are irresistible. A successful strike by laborers means, in many, if not most cases, that for practical purposes the strikers have such a control of the labor which the employer must have, that he has to yield to their demands. A single individual may well be left to take his chances in a struggle with another individual. But in a struggle with a number of persons combined together to fight an individual, the individual's chance is small, if it exists at all. It is plain that a strike by a combination of persons has a power of coercion which an individual does not have.
"The result of this greater power of coercion on the part of a combination of individuals is that what is lawful for an individual is not the test of what is lawful for a combination of individuals; or, to state it in another way, there are things which it is not lawful for a combination of individuals to do. Take, for example, the case put in Allen v. Flood , A. C. 1, 165, of a butler refusing to renew a contract of services because the cook was personally distasteful to him, whereupon, in order to secure the services of the butler, the master refrains from re-engaging the cook, whose term of service also had expired. We have no doubt that it is within the legal rights of a single person to refuse to work with another for the reason that the other person is distasteful to him, or for any other reason, however arbitrary. But it is established in this commonwealth that it is not legal (even where he wishes to do so) for an employer to agree with a union to discharge a non-union workman for an arbitrary cause at the request of the union. Berry v. Donovan, 188 Mass. 353, 108 Am. St. Rep. 499, 74 N. E. 603. A fortiori a labor union can not, by a strike, refuse to work with another workman for an arbitrary cause. For the general proposition that what is lawful for an individual is not necessarily lawful for a combination of individuals, see Quinn v. Leathern , A. C. 495, 511; Mogul S. S. Co. v. McGregor, L. R. 23 Q. B. Div. 598, 616, on Appeal , A. C. 25, 45; Gregory v. Brunswick, 6 Mann. & G. 205, on Appeal 3 C. B. 481. It is, in effect, concluded by Plant v. Woods, 176 Mass. 492, 51 L. R. A. 339, 79 Am. St. Rep. 330, 57 N. E. 1011." Pickett v. Walsh, 192 Mass. 572, 116 Am. St. Rep. 272, 6 L. R. A. (N.S.) 1067, 78 N. E. 753. "Of the general proposition that certain kinds of conduct not criminal in any one individual may become criminal if done by combination among several, there can be no doubt. The distinction is based on sound reason, for combination may make oppressive or dangerous that which, if it proceeded only from a single person, would be otherwise; and the very fact of the combination may show that the object is simply to do harm, and not to exercise one's own just rights." Mar-tell v. White, 185 Mass. 255, 102 Am. St. Rep. 341, 64 L. R. A. 260, 69 N. E. 1085.
See, Privileges of Labor Unions in the Struggle for Life, by W. W. Cook, 27 Yale Law Journal, 779.
2 Quinn v. Leathern , A. C. 495; Martell v. White, 185 Mass. 255, 102 Am. St. Rep. 341, 64 L. R. A. 260, 69 N. E. 1085, and Bausbach v. Reiff, 244 Pa. St. 559, L. R. A. 1915D, 785, 91 Atl. 224. "The case presents one phase of a general subject which gravely concerns the interests of the business world, and, indeed, those of all organized society, and which in recent years has demanded and received great consideration in the courts and elsewhere. Much remains to be done to clear the atmosphere, but some things, at least, appear to have been settled; and certainly at this stage of the judicial inquiry it can not be necessary to enter upon a course of reasoning or to cite authorities in support of the proposition that, while a person must submit to competition, he has the right to be protected from malicious interference with his business. The rule is well stated in Walker v. Cronin, 107 Mass. 555, 564, in the following 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 rights by others, it is damnum absque injuria, unless some superior right by contract or otherwise is interfered with. But if it come from the merely wanton or malicious acts of others, without the justification of competition or the service of any interest or lawful purpose, it then stands upon a different footing.' In a case like this, where the injury is intentionally inflicted, the crucial question is whether there is justifiable cause for the act. If the injury be inflicted without just cause or excuse, then it is actionable. Bowen, L. J., in Mogul S. S. Co. v. McGregor, L. R. 23 Q. B. Div. 598, 613; Plant v. Woods, 176 Mass. 492, 51 L. R. A. 339, 79 Am. St. Rep. 330, 57 N. E. 1011. The justification must be as broad as the act, and must cover, not only the motive and the purpose, or, in other words, the object sought, but also the means used." Martell v. White, 185 Mass. 255, 102 Am. St. Rep. 341, 64 L. R. A. 260, 69 N. E. 1085.
In the absence of specific statutory exceptions, combinations by employes or by labor unions for the purpose of interfering with the business of an employer are regarded as violations of the Sherman Act.3 Although the Clayton Act4 excepts agricultural and horticultural associations from its provisions, it does not authorize such associations to interfere with the contracts of business of others.5 Such an association will be enjoined from carrying on a secondary boycott in order to prevent other persons from trading with a specified individual.6
Probably, however, if bona fide persuasion alone were resorted to, the effect of persuasion by several acting in concert might not be substantially different as to its legal effect from persuasion by one. A combination of persons, to induce a breach of contract, usually, however, resorts to some form of compulsion when persuasion fails. At any rate, the reported cases on this branch of the subject involve the idea of compulsion in general.
3Loewe v. Lawler, 208 U. S. 274, 52 L. ed. 488.
4 Act of October 15, 1914; 38 Stats. at L., 73 O. C. 323. Sec. 6.
5 United States v. King, 250 Fed. 908. 6 United States v. King, 250 Fed. 908.