1st, he tendered the deed to piaintiff and demanded the unpaid part of the purchase price, but plaintiff refused to go on with the sale. Boulware says that at the time of the tender of the deed he refused to accept. stating as the reason of his refusal that Crohn had not complied with the contract. Crohn swore that the reason for his refusal assigned by Boulware was that the orchard had been damaged. Boulware instituted suit to recover $500 damages provided by the contract in case of Crohn's breach of contract: also five hundred dollars he had paid on the purchase price. The petition averred performance on plaintiff's part and that defendant failed to perform; that he negligently permitted his live stock to enter the orchard, trample, bruise and gnaw the fruit trees; failed to exercise the proper care over the orchard, with the result that the rabbits and other natural enemies of the fruit trees gnawed, barked and wounded them so many of them died. That he allowed cattle and live stock in the garden to the destruction of the turf and lawn, and failed to furnish an abstract within 30 days of Sept. 29th, 1903. This case presented an issue of fact for a jury to decide, that is to say, were the facts such as to show an intention on the part of the defendant not to be bound by the terms of the contract, and whether the defendant did or did not comply with that part of the agreement to furnish an abstract of title within thirty days of the making of it, certainly could not be relied upon by the plaintiff, for he did not deem it of enough importance to look up the abstract till the day had arrived for full performance. A jury had a right to consider every circumstance which would tend to show an intention on the part of the defendant not to comply with his agreement and the failure to furnish the abstract was a circumstance only, since the plaintiffs own act showed that he did not rely on it. But this circumstance was admissible with others to show an intention not to be bound.

We do not think, under the circumstances, that the failure to furnish the abstract within thirty days of the making of the contract would have been sufficient to have given rise to the right on the plaintiff's part to rescind, even though it was made a condition precedent by the terms of the contract. This failure might have been made the basis of a rescission had the plaintiff taken advantage of it

The

in time, and in this case, as he did not, he must have been deemed to have waived reliance upon that stipulation. But the fact that the defendant stood by and allowed the rabbits to ruin a valuable part of the thing agreed to be conveyed, to such an extent as to make the thing tendered on the part of the defendant as performance of the contract on his part to be performed, then there could be no question, but the evidence of such a fact would be sufficient for a jury to say, caused a total failure. The contract required the premises to be in as good condition as when the contract was made, ordinary wear and tear excepted. Whether it was his duty to have complied with the ordinary precautions to prevent the orchard from being ruined was a question for a jury to decide, in view of the nature of the undertaking and the custom in regard to ways and means to prevent the destruction of fruit trees by rabbits. It is manifest from the evidence, that the defendant might have avoided such destruction as occurred, by a little effort on his part, and that the nature of the undertaking required such effort. defendant's failure in this respect manifested an intention on his part, not to be bound by the terms of his contract. This being true a jury had a right to say that such conduct gave the plaintiff the right to regard the contract as wholly abandoned, and to our mind, the right to not only recover back the $500 paid on the faith of the contract, but also, the penalty, had he chosen to insist on its recovery. The breach was willful, for he says he knew the rabbits were ruining the trees, and did nothing to prevent them. The difference between Bowes v. Shand and the Crohn case is, that, it was manifest on the face of the pleadings, that the plaintiff had not launched his case till he had averred that he had performed the stipulations of the agreement as they were made. In the Crohn case the question was one for a jury to decide from all the surrounding circumstances. As to what conduct may be taken to manifest an intention not to be bound by the terms of a contract must vary to a greater or less extent in view of the nature of the contract and the nature of the breach, so that there is no hard and fast rule to be laid down by which, to say that such and such a breach may be taken as giving the right to regard a contract as broken in toto. In our next article we will consider the breaches of contracts which do not give the right to regard them as abandoned.

NOTES OF IMPORTANT DECISIONS.

NUISANCE-LIABILITY FOR SUFFERING PUBLIC NUISANCE ON PRIVATE PREMISES.-It is not as generally known as it should be that the mere sufferance of a nuisance to exist on one's premises is as much of a crime as the actual creation and maintenance of a nuisance. In the recent case of Southern Railway Co. v. Commonwealth, 101 S. W. Rep. 882, the Court of Appeals of Kentucky held that where a railroad company quartered a band of laborers on its right of way, who destroyed the peace and quiet of the neighborhood, it may be convicted of having suffered and permitted a common nuisance on its premises, and that the laborers were in its employ was immaterial.

The court, in an opinion by Chief Justice O'Rear, says: "Appellant was convicted under an indictment charging it with having suffered and permitted a common nuisance on its premises. It allowed a band of 100 or 150 laborers, quartered in one of its work trains and occupying a side track on its railroad near Hempridge Station, to continue, for weeks, noisy, boisterous, and riotous conduct, shooting firearms on appellant's premises, and near the station and public highway, so as to alarm the neighborhood and those having occasion to pass that way. These laborers were Greeks in appellant's employ, and with its permission occupied a part of its right of way in the manner indicated. The fact that the laborers were in appellant's employment did not affect the question. It would have been the same if the persons permitted to assemble on appellant's premises were strangers. No one has the right to knowingly suffer or permit noisy, boisterous, and lawless crowds of people to assemble on his premises, so as to disturb the peace and quiet of the public. To do so is to suffer a public nuisance on his premises."

INJUNCTIONS AGAINST STRIKES, BOYCOTTS AND SIMILAR UNLAWFUL ACTS.

1. Importance of Subject and Purpose of Paper. The subject of injunctions as applied to strikes, boycotts and other similar proceedings derives its importance from the far reaching use of the writ in recent years, and the probability of the recurrence of a similar experience at our next commercial crisis. In the period from 1893 to 1897 inclusive there were in the United States 5,973 strikes, resulting in a loss to the employers of $37,633,528.1 Employers were not slow

Article by C. W. Hanger in U. S. Bulletin of Labor, Sept. 1904, p. 1097.

How quick the courts were to grant injunetive relief is shown by the following graphic statement as to the prevalence of the restraining writ in 1894: "The Attorney General of the United States, in the exercise of its sovereignty as a nation, has sued out injunctions in nearly every large city west of the Allegheny Mountains. Injunction writs have covered the sides of cars, deputy marshals and federal soldiers have patrolled the yards of railway termini, and chancery process has been executed by bullets and bayonets." It is the two-fold purpose of this paper to point out, first, what rules, if any, the courts follow in the use of injunctions as applied to labor troubles, and, second, to consider briefly some of the principal objections to their views, attempting to discover in how far the criticisms are just.

2. Close Relation of Law to Equity.-The employment of the writ of injunction to restrain labor disturbances first manifested itself in England in 18686 and in the United States twenty years later though prior to that, the law courts had frequently dealt with them in actions for damages and criminal prosecutions. In studying the injunction

2 Barr v. Essex Trades Council (N. J. 1894), 30 Atl. Rep. 881.

3 Ibid: Blindell v. Hagan (1893), 56 Fed. Rep. 696; Coeur D'Alene, etc., Co. Miners' Union (1892), 51 Fed. Rep. 260-1.

4 Coeur D'Alene, etc., Co. v. Miners' Union (1892), 51 Fed. Rep. 260.

5 Paper by C. C. Allen, Report of American Bar Association (1894), p. 315.

6 Springhead Spinning Co. v. Riley (1868), 6 L. R. Eq. 551.

7 Sherry v. Perkins (1888), 107 Mass. 212, 17 N. E. Rep. 307.

8 Walker v. Cronin (1888), 107 Mass. 555; Old Dominion S. S. Co. v. McKenna (1887), 30 Fed. Rep. 48. 9 King v. Journeymen Tailors of Cambridge (1721), 8 Mod. 10, 1 Hawk. P. C., ch. 72, sec. 2; Reg. v. Duffield (1851), 5 Cox C. C. 404; Reg v. Druitt (1867), 10 Cox C. C. 593; Statev. Ghid den (1887), 55 Conn. 46; Crump v. Common

cases, one soon becomes impressed by the utterances of judge after judge that in dealing with labor combinations equity closely follows the law. Before setting forth the rules of chancery on the subject, it is therefore in order briefly to summarize what the law in England and America was about the time the use of injunctions in this connection began to become common, as to the right of laborers to combine and employ the means customary to effectuate their objects. In so far as the courts had passed upon the questions, the following is a fair statement of the law both in England and America at that time.

12

3. The Law at Beginning of Injunction Period. (a) Notwithstanding the earlier view that any combination to raise wages was a criminal conspiracy, 10 workingmen now had a recognized right to combine to better their condition.11 (b) No action lay against them for ceasing work in order to secure concessions, either individually or collectively, provided no breach of contract was involved. (c) There was no prohibition, either civil or criminal, on inducing others to quit their employment, or, if not employed, to abstain from hiring themselves, provided there is no intimidation, molestation or obstruction, 14 their object is not primarily to

18

wealth, 84 Va. 940; State v. Stewart, 59 Vt. 273; Reg. v. Bunn, 12 Cox C. C. 316; Reg. v. Hilbert, 13 Cox C. C. 82; Reg. v. Bauld, 13 Cox C. C. 282.

10 King v. Journeymen Tailors of Cambridge (1721), 8 Mod. 10, citing The Tub Women v. The Brewers of London (not reported); Rex v. Mawbey (1796), 6 Term. R. 619, 636, 1 Hawk. P. C., ch. 72, sec. 2: 2 Jacob's Law Dictionary (1811), 230; Stat. 2 & 3 Edw. VI. ch. 15 (1549). List of statutes on subject prior to 1824, see 5 Geo. 4, ch. 95 (1824). For account of labor legislation in England during nineteenth century, see Bulletin of U. S. Dept. of Labor, Nov. 1899.

11 England-Stat. 22 Vict., ch. 34 (L. J. 1859, p. 36); Stat. 34 & 35 Viet., ch. 31: Stat. 38 & 39 Vict., ch. 86; Reg. v. Rowlands (1851), 5 Cox C. C. 460; Reg. v. Druitt (1867), 16 L. T. (N. S.) 855; United StatesComm. v. Hunt (1842), 4 Metc. (Mass.) 111; United States v. Kane (1885), 23 Fed. Rep. 748; In re Doolittle (1885). 23 Fed. Rep. 544; In re Higgins (1886), 27 Fed. Rep. 444.

12 England-Reg. v. Druitt (1867), 16 L. T. (N. S.) 855. United States-United States v. Kane (1885), 23 Fed. Rep. 748; In re Doolittle (1885), 23 Fed. Rep. 544; In re Higgins (1886), 27 Fed Rep. 443, 445.

13 Stat. 22 Vict., ch. 34; Comm. v. Hunt (1842), 4 Metc. 111.

14 Stat. 5 Geo. 4, ch. 129; Reg. v. Rowlands, 5 Cox. C. C. 460; Rex v. Shepherd, 11 Cox C. C. 325; Sherry v. Perkins, 147 Mass. 212. Under English Act of 1875, however, "picketing," consisting merely of a patrol

15 and they are not

16

injure some other person, inducing a breach of contract. (d) The old common law civil liability of a workman who broke his own contract, to be sued for damages, of course remained unchanged, and the rule that one who entices away a servant under contract is liable in damages17 also remained unaltered.

How closely equity has followed the law in dealing with labor problems will appear in what follows.

4. Injunctions to Restrain Strikes-(A) General Rule.-As a rule courts of equity have not considered it within their duty to enjoin mere voluntary cessations of work having as their purpose the securing of better terms of employment, either by an individual or a collection of individuals. Justice Harlan writes as follows: "But the vital question remains whether a court of equity will, under any circumstances, by injunction, prevent one individual from quitting the personal service of another? An affirmative answer to this question is not, we think, justified by any authority to which our attention has been called or of which we are aware. It would be an invasion of one's natural liberty to compel him to work for or to remain in the personal service of another. One who is placed under such constraint is in a condition of involuntary servitude,—a condition which the supreme law of the land declares shall not exist within the United States, or in any place subject to their jurisdiction. The rule, we think, is without exception that equity will not compel the actual, affirmative performance by an employee of merely personal services, any more than it will compel an employer to retain in his personal service one who, no matter for what cause is not acceptable to him. Relief of that character has always been regarded as impracticable."18

coupled with peaceable persuasion not to work for another has been held illegal. Lyons & Sons v. Wilkins (1899), 1 Ch. 255.

15 State v. Glidden, 55 Conn. 460 (semble); Walker v. Cronin, 107 Mass. 155; Carew v. Rutherford, 106 Mass. 1; Lumley v. Gye (semble) 2 E. & B. 216, and remarks in Allen v. Flood, 78 L. J. Q. B. 119, as to the previous condition of the law.

16 Stat. 22 Vict., ch. 34; Lumley v. Gye, 2 E. & B. 216; Rex y. Duffield, 5 Cox. C. C. 404.

17 See Lumley v. Gye, 2 El. & Bl. 216; Hambleton v. Veere, 2 Saund. 169. See cases cited in 16 Am. & Eng. Ency. 1109.

18 Arthur v. Oakes, 63 Fed. Rep. 310, 317. See also

(a) An Apparent, Though Not Real Exception to the Rule.-While equity will not enjoin a combined cessation from work, it has been held by the federal courts that an order may be issued, which while recognizing the right of workmen to quit, nevertheless com. mands them to carry out their duties as long as they choose to remain within their employment, 19 and restrains any person from ordering or persuading them to fail to do so.20 It is to be noted, however, that these decisions are all based on the fact that either interstate commerce or the carriage of mails was affected by the refusal of employees to carry out all their duties. It is not settled whether the same principle would be extended to all cases of private contract relations.

(B) Importance of Purpose of Strike(a) General Rule.-While the courts in general have refused to consider a strikej per se enjoinable, the very decision which lays down the rule to that effect, expressly sustains an injunction from21 combining and conspiring to quit with or without notice, the service of certain receivers, with the object and intent of crippling the property in their custody or embarrassing the operation of the railroad. 22

In another case28 the court, while recognizing the right to strike for improvement in terms of employment of the strikers, characterizes as highly illegal a strike inaugurated for the purpose of obstructing the operation of the employer's road, and compelling him to break his contract with the Pullman car

Toledo, etc., Ry. Co. v. Penn., etc., Co., 54 Fed. Rep. 730, 740 and authorities cited. Also Fry, Specif. Perf. (3d Am. Ed.), 87-91.

19 Southern Cal. Ry. Co. v. Rutherford (1894), 62 Fed. Rep. 796; Toledo, etc., Ry. Co. v. Penn. Co. (1893), 54 Fed. Rep. 746. Employees cannot evade this principle by mere temporary stoppage of work, followed by a resumption of duties when orders objectionable to them had been withdrawn. (Ibid). 20 Toledo, etc., Ry. Co. v. Penn. Co. (1893), 54 Fed. Rep. 730; In re Debs (1895), 158 U. S. 564.

21 Arthur v. Oakes, 63 Fed. Rep. 310, 319. 22 The court says (Ibid, p. 322): "An intent upon the part of a single person to injure the rights of others or of the public is not in itself a wrong of which the law will take cognizance, unless some injurious act be done in execution of the unlawful intent. But a combination of two or more persons with such intent, and under circumstances that give them when so combined a power to do an injury they would not possess as individuals acting singly, has always been recognized as in itself wrongful and illegal."

23 Thomas v. Cincinnati, etc., Co., 62 Fed. Rep. 803.

company. Says the court: "All the employees had the right to quit their employment but they had no right to combine to quit in order thereby to compel their employer to withdraw from a mutually profitable relation with a third person for the purpose of injuring that third person, when the relation thus sought to be broken had no effect whatever on the character or reward of their service. It is the motive for quitting, and the end sought thereby, that make the injury inflicted unlawful, and the combination by which it is effected an unlawful conspiracy."24

It is of course true that in every strike there is a purpose to injure the employer, even though the further desire to secure better terms of terms of employment also exists. It is not, therefore, correct to say that wherever there is a purpose to injure another, equity will enjoin. The carrying out of that purpose may be entirely justified by the fact that it is necessary in order to secure betterment in the terms of employment of the strikers themselves, and the courts will not enjoin an attempt to secure by a strike higher wages or less hours on the grounds that the strikers have adopted that method of enforcing their demands, knowing that it will injure the employer if the desired concessions are not granted. Where, however, the strikers are not attempting to bring about improvement in their own terms of employment, but are merely seeking to injure another person, (either their employer,25 or a third party, as in the case of Thomas v. Cincinnati, etc., Ry.,26 where they threatened to strike if the use of cars manufactured by a third party was not discontinued by their employer), their design to injure him is not justified and the carrying out of that purpose may be enjoined.

(b) Application to Sherman Anti-Trust Law. The attempt was early made to apply the Sherman Anti-Trust law of 1890,27 to combinations of workmen effecting their objects by means of strikes. There seems to be little question but that the act in question when enacted had as its sole object the crushing of capitalistic combinations, 28 and 24 Ibid., p. 818.

25 Arthur v. Oakes (1894), 63 Fed. Rep. 310, supra. 26 Supra.

27 Act of July 2, 1890, 26 Stat. L. 209.

28 U. S. v. Cassidy (1895), 67 Fed. Rep. 698

29

so it was held in one of the first cases in which the point was raised.2 A contrary decision30 extending its operation to labor combinations has, however, been consistently followed. 31 The construction of this act does not operate to make every strike enjoinable by suit instituted by the government, but merely to place in the hands of the government the power to restrain [those which are organized primarily for the purpose of restraining interstate trade or cominerce. Thus, in a leading case32 the court, while distinctly laying down as law that a peaceable strike is not actionable and that the organization of such a strike is not enjoinable,3 3 even though it "much impeded the operation of the road under the order of the court," holds that the organization of one which was to carry out an express purpose "to paralyze the interstate commerce of this country'' comes within the prohibition of the statute.8 4

(c) Application to to Receiver Cases. The numerous cases 35 in which injunctions have been granted to restrain interference with property in the hands of a receiver by means of a strike, are also based on the purpose for which the strike is called. Thus, in a leading case,36 that part of a decision of the lower court enjoining persons from combining to strike with intent to injure the property in the possession of the receiver is affirmed, while the part enjoining them from quitting so as to injure the same property, without regard to their motive, is reversed.

5. Injunctions to Restrain the Inducement of Other Laborers to Leave.-(A) General Rule. The mere cessation of work by a body of discontented laborers is not always sufficient to secure the desired concessions. It is often necessary that enough other workmen be induced to withdraw along with the discontented ones seriously to impede the employer's business. The law courts of

29 U. S. v. Patterson (1893), 55 Fed. Rey. 605. 30 U. S. v. Workingmen's, etc., Council (1893), 54 Fed. Rep. 995.

31 U. S. v. Workingmen's, etc., Council, 57 Fed. Rep. 85.

32 In re Phelan (1864), 62 Fed. Rep. 803.

Ibid., p. 817.

34 To same effect, U. S. v. Elliott (1894), 62 Fed. Rep. 801; U. S. v. Agler (1894), 62 Fed. Rep. 824; U. S. v. Cassidy (1895), 67 Fed. Rep. 698.

35 U. S. v. Kane, 23 Fed. Rep. 748; In re Wabash, 24 Fed. Rep. 217; In re Higgins, 27 Fed. Rep. 443; Thomas v. Cincinnati, etc., Ry., 62 Fed. Rep. 803. 36 Arthur v. Oakes (1894), 63 Fed. Rep. 310.

neither England nor America have considered it actionable to induce by peaceable means the voluntary withdrawal of laborers, provided no breach of contract is involved. 8 7 Equity has followed a similar rule. Peace

able persuasion to quit work or to discharge laborers is not enjoinable 8 but coercion and intimidation 39 are uniformly held to be proper subjects of equitable restraint.40

(B) Importance of Motive of Inciter-(a) General Rule.-Just as the motive of the striker himself has been scrutinized by the courts in determining whether his acts were proper subjects of injunction, so the purpose of those who induce a cessation of work has had no small influence on the decision of the cases presented. In a leading federal case,11 the court while not denying the right to call the strike to secure an improvement in the terms of employment of the strikers, punished for contempt one who had disobeyed an injunction from "either as an individual or in combination with others, inciting, encouraging, ordering or in any other manner causing the employees of the receiver to leave his employ, with intent to obstruct the operation of his road, and thereby to compel him not to fulfill his contract and carry Pullman

38 Richter v. Tailors' Union (1890), 24 Wkly. L. B. 189; U. S. v. Kane (1885), 23 Fed. Rep. 748; Harvester Co. v. Meinhart (1895), 24 Hun (N. Y.), 489: Rogers v. Evarts, 17 N. Y. Supp. 264; Reynolds v. Everett (1894), 144 N. Y. 189.

39 Note as to what intimidation is.

40 Davis v. Zimmerman (1895), 36 N. Y. Supp. 303; Union, etc., Co. v. Ruef (1902), 120 Fed. Rep. 102; Allis Chalmers Co. v. Reliable Lodge (1901), 111 Fed. Rep. 264; Southern Ry. v. Mach., etc., Union (1901), 111 Fed. Rep. 49; O'Neil v. Behanna (1897), 182 Pa. 236.

41 Thomas v. Cincinnati, etc., Ry. Co., 62 Fed. Rep. 803.

42 See also Arthur v. Oakes (1894), 63 Fed. Rep. 310, in which an injunction was granted to restrain a conspiracy to injure another by a strike. See also Quinn v. Leathem (1901), L. R. A. C. 495; In re Higgins (1886), 27 Fed. Rep. 443. See, for cases of injunction against wilful interference with interstate com◄ merce, In re Phelan (1894), 62 Fed. Rep. 803; U. S. v. Elliott (1894),162 Fed. Rep. 801; U. S. v. Agler (1894), 62 Fed. Rep. 824; U. S. v. Cassidy (1895), 67 Fed. Rep. 698. Injunction granted to restrain calling of a strike not directly connected with the welfare of the strikers, in securing which grave public injury will come about. U. S. v. Debs, 64 Fed. Rep. 724.