We do not intend to enter upon an elaborate discussion of the subject, or become entangled in the subtleties connected with the words "malice" and "malicious." We are not able to accept without limitations the doctrine above referred to, but at this time content ourselves with a brief reference to some general principles. It must be remembered that the common law is the result of growth, and that its development has been determined by the social needs of the community which it governs. It is the resultant of conflicting social forces, and those forces which are for the time dominant leave their impress upon the law. It is of judicial origin, and seeks to establish doctrines and rules for the determination, protection, and enforcement of legal rights. Manifestly it must change as society changes and new rights are recognized. To be an efficient instrument, and not a mere abstraction, it must gradually adapt itself to changed conditions. Necessarily its form and substance has been greatly affected by prevalent economic theories. For generations there has been a practical agreement upon the proposition that competition in trade and business is desirable, and this idea has found expression in the decisions of the courts as well as in statutes. But it has led to grievous and manifold wrongs to individuals, and many courts have manifested an earnest desire to protect the individuals from the evils which result from unrestrained business competition. The problem has been to so adjust matters as to preserve the principle of competition and yet guard against its abuse. to the unnecessary injury to the individual. So the principle that a man may use his own property according to his own needs and desires, while true in the abstract, is subject to many limitations in the concrete. Men cannot always, in civilized society, be allowed to use their own property as their interests or desires may dictate without reference to the fact that they have neighbors whose rights are as sacred as their own. The existence and well-being of society requires that each and every person shall conduct himself consistently with the fact that he is a social and reasonable person. The purpose for which a man is using his own property may thus sometimes determine his rights, and applications of this idea are found in Stillwater Water Co. v. Farmer, 89 Minn. 58, 93 N. W. 907, 60 L. R. A. 875, 99 Am. St. Rep. 541. * * * Many of the restrictions which should be recognized and enforced result from a tacit recognition of principles which are not often stated in the decisions in express terms. Sir Frederick Pollock notes that not many years ago it was difficult to find any definite authority for stating as a general proposition of English law that it is wrong to do a willful wrong to one's neighbor without lawful justification or excuse. But neither is there any express authority for the general proposition that men must perform their contracts. Both principles, in this generality of form and conception, are modern and there was a time when neither was true. After developing the idea that law begins, not with authentic general principles, but with the enumeration of particular remedies, the learned writer continues: "If there exists, then, a positive duty to avoid harm, much more, then, exists the negative duty of not doing willful harm, subject, as all general duties must be subject, to the necessary exceptions. The three main heads of duty with which the law of torts is concerned, namely, to abstain from willful injury, to respect the property of others, and to use due diligence to avoid causing harm to others, are all alike of a comprehensive nature." Pol lock, Torts, (8th Ed.) p. 21. He then quotes with approval the statement of Lord Bowen that "at common law there was a cause of action whenever one person did damage to another, willfully and intentionally, without just cause and excuse." In Plant v. Woods, 176 Mass. 492, 57 N. E. 1011, 51 L. R. A. 339, 79 Am. St. Rep. 330, Mr. Justice Hammond said: "It is said, also, that, where one has the lawful right to do a thing, the motive by which he is actuated is immaterial. One form of this statement appears in the first headnote in Allen v. Flood, as reported in [1898] A. C. 1, as follows: 'An act lawful in itself is. not converted by a malicious or bad motive into an unlawful act, so as to make the doer of the act liable to a civil action.' If the meaning of this and similar expressions is that, where a person has the lawful right to do a thing irrespective of his motive, his motive is immaterial, the proposition is a mere truism. If, however, the meaning is that where a person, if actuated by one kind of a motive, has a lawful right to do a thing, the act is lawful when done under any conceivable motive, or that an act lawful under one set of circumstances is therefore lawful under every conceivable set of circumstances, the proposition does not commend itself to us as either logically or legally accurate." * * It is freely conceded that there are many decisions contrary to this view; but, when carried to the extent contended for by the appellant, we think they are unsafe, unsound, and illy adapted to modern conditions. To divert to one's self the customers of a business rival by the offer of goods at lower prices is in general a legitimate mode of serving one's own interest, and justifiable as fair competition. But when a man starts an opposition place of business, not for the sake of profit to himself, but regardless of loss to himself, and for the sole. purpose of driving his competitor out of business, and with the intention of himself retiring upon the accomplishment of his malevolent purpose, he is guilty of a wanton wrong and an actionable tort. In such a case he would not be exercising his legal right, or doing an act which can be judged separately from the motive which actuated him. To call such conduct competition is a perversion of terms. It is simply the application of force without legal justification, which in its moral quality may be no better than highway robbery. Nevertheless, in the opinion of the writer this complaint is insufficient. It is not claimed that it states a cause of action for slander. No question of conspiracy or combination is involved. Stripped of the adjectives and the statement that what was done was for the sole purpose of injuring the plaintiff, and not for the purpose of serving a legitimate purpose of the defendant, the complaint states facts which in themselves amount only to an ordinary everyday business transaction. There is no allegation that the defendant was intentionally running the business at a financial loss to himself, or that after driving the plaintiff out of business the defendant closed up or intended to close up his shop. From all that appears from the complaint he may have. opened the barber shop, energetically sought business from his acquaintances and the customers of the plaintiff, and as a result of his enterprise and command of capital obtained it, with the result that the plaintiff, from want of capital, acquaintance, or enterprise, was unable to stand the competition and was thus driven out of business. The facts thus alleged do not in my opinion, in themselves, without reference to the way in which they are characterized by the pleader, tend to show a malicious and wanton wrong to the plaintiff. A majority of the Justices, however, are of the opinion that on the principle declared in the foregoing opinion, the complaint states a cause of action, and the order is therefore affirmed. Affirmed. JAGGARD, J., dissents. SECTION 3.-INDUCING BREACH OF CONTRACT It has long been held that a cause of action arises where an employee is maliciously interfered with in his employment by some third party. As a result one would expect the same situation to exist wherever one maliciously interfered with an existing contract, causing one of the parties to breach the same. which follows illustrates such a situation. The situation which arises when one business man persuades a prospective customer to break a contract in order to obtain the business himself is not so clear. Perhaps the weight of authority is that no recovery for such interference will be allowed. The interference was justified by the surrounding conditions, and not actionable, because no malice was involved. SOUTHERN RY. CO. v. CHAMBERS. (Supreme Court of Georgia, 1906. 126 Ga. 404, 55 S. E. 37, Action by E. N. Chambers against the Southern Railway Company for damages. Objection was made to the petition as originally filed upon the ground that it set forth two separate and distinct causes of action, and that each was not set forth in a separate count. This defect was remedied by an amendment, and the petition as amended contained two counts. The first count alleged that plaintiff was a licensed drayman in the town of Villa Rica, and had purchased the necessary outfit for that business; that the most profitable part of that business consisted of hauling the freight of merchants shipped over the line of defendant; that he had contracts with a majority of the merchants to haul their freight from the depot to their places of business; that the defendant, through its depot agent at Villa Rica, refused to deliver him freight to be hauled to the merchants, although such agent knew that he was authorized to receive and haul such goods, petitioner presenting written and verbal orders for the same; that "defendant's agent, G. A. Scarborough, would go around to petitioner's customers and beg and persuade them to allow other parties than petitioner to receive and haul said goods, to the injury and damage of your petitioner; * that the conduct on the part of the defendant was willful, malicious, and done for the sole purpose of injuring and damaging your petitioner, and did injure him and damage. him" in a sum stated; and that the conduct on the part of the defendant had destroyed the business of the plaintiff. * ** * * COBB, P. J. When the first count in the petition is taken in its entirety, it is manifest that it was the intention of the pleader to lay a cause of action for damages flowing from the destruction of the business of the plaintiff by the wrongful conduct of the defendant as alleged in the petition. The refusal to deliver freight to the defendant, notwithstanding he was clothed with authority from the consignees to receive it, is not alleged for the purpose of recovering damages that might result from the refusal to deliver in any particular case; but this constant and continuous refusal is alleged for the purpose of showing the effect upon the plaintiff's business as a drayman. The count alleged that the plaintiff's business was entirely destroyed. This resulted from two causes: First, the refusal of the agent to deliver freight which the plaintiff was authorized by the consignees to receive; and, second, the conduct of the agent in going to the merchants of Villa Rica and persuading them to discontinue their contracts with the plaintiff. It is alleged that this was done maliciously. In other words, the count, when taken in its full effect, charges that the business of the plaintiff was maliciously destroyed by the wrongful conduct of the defendant. Malicious injury to the business of another has long been held to give a cause of action to the injured party. The petition alleged that the plaintiff had contracts with the merchants of Villa Rica to deliver their freight for them, and that the defendant through its agent maliciously procured the merchants not only to abandon their contracts, but to violate them while they continued. It has been held that the malicious procurement of a breach of a contract of employment resulting in damages, where the procurement is during the subsistence of the contract, is an actionable wrong. ** If this suit had been against Scarborough in his individual capacity, there would be little question about the fact that a cause of action was set forth, not only as regards the refusal to deliver freight, but also as regards his conduct in persuading the merchants of Villa Rica to abandon their contracts with the plaintiff. But is the railway company responsible for the conduct of Scarborough? Is the malice of Scarborough the malice of the company? It is not alleged that the railway company expressly authorized that to be done which is charged against Scarborough. It appointed Scarborough its agent. It placed him in a position where it was his duty to deliver freight to consignees or their authorized agents. Those things which were done in connection with this duty were within the scope of the agency. The railway company would be responsible for the wrongful conduct of Scarborough in dealing with the consignees or their authorized agents in delivering freight to them. If he refused to deliver freight when he ought to have delivered it, his act was the act of the railway company. If he maliciously refused to deliver, and the consequence of this malice was damage to him who had a right to receive, the malice of Scarborough became the malice of the railway company. So far as the cause of action rests upon the malicious act of Scarborough in refusing to deliver freight to plaintiff upon orders, verbal and written, from the consignees, the action is well laid. But was the action well laid so far as it relates to the conduct of Scarborough in going to the merchants of Villa Rica and procuring them to abandon their contract with the plaintiff? It is alleged that he is the agent of the railway company. It is alleged that as such he went to the merchants of the town of Villa Rica, and interfered with the plaintiff's business by begging and persuading his customers to BAU.& DIL.B.L.-59 allow other parties to haul their goods which came over the line of road represented by him. What he did in this respect was his individual act. It was beyond the scope and authority of his agency, and the company would not be responsible, unless it appeared that it was done by its direction and authority, or that it ratified his acts in reference thereto. If the plaintiff seeks to hold the company liable for the acts of the agent under such circumstances, it must distinctly appear from his petition that the company authorized the acts, or that they were within the scope of his employment, or, if beyond the scope of his employment, they were approved and ratified by the company after a full knowledge of his conduct. So far as that portion of the first count relates to the conduct of the agent in persuading the merchants to discontinue business with the plaintiff, nothing appears in the petition bringing the case within this rule. The count was to this extent defective. * * * SECTION 4.—APPROPRIATION OF COMPETITOR'S TRADE VALUES LAMONT, CORLISS & CO. v. HERSHEY. (Circuit Court of the United States, N. D. Pennsylvania, 1905. 140 F. 763.) ARCHBALD, District Judge. To make out a case of unfair or fraudulent competition-an effort, in other words, to steal the trade built up by another-there must be an actual wrongful intent to deceive the public into the belief that the goods of the one party are the goods of the other, accompanied by such acts and devices as are likely to do so, or such duplication in form and dress of the one by the other as will produce a confusion calculated to bring this about, of which the party complained against is convicted of being willing to have the benefit. * * An inference to this effect is justified where, on the party's attention being called to the subject, he unreasonably persists in holding to the imitative dress which he has given to his goods. however innocently intended, at the outstart. Singer Mfg. Co. v. June Mfg. Co., 163 U. S. 169, 16 S. Ct. 1002, 41 L. Ed. 118; Van Houten v. Hooton Cocoa Co. (C. C.) 130 F. 600. But in all this, deception, likely and intended, either actively or constructively, must exist before there is ground for interference. The basis claimed for it here is the alleged similarity in shape and size of packages and color and style of wrappers in which the common commodity-milk chocolate, extensively manufactured by both parties-is put up. But the elements of the combination by themselves, whatever may be said of them in conjunction, are of the most common and ordinary character, and the connection in which they are employed entirely obvious and natural. Chocolate has long been put up in flat, oblong pieces, as well as in rounds or squares; and that one party has hit upon a convenient size in which these are inclosed, retailing at a certain price, by no means stands in the way of another's adopting it. Chocolate or maroon colored wrappers, moreover, are a very natural suggestion for a chocolate product, and gilt or silver lettering is about all that will show on it. 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