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have dealt with flood waters according to the rules applicable to natural streams, and others have treated them as surface water. But even in those jurisdictions, in view of the great confusion in past decisions and the inevitable presence of distinguishing facts, the doctrine of stare decisis should prove no obstacle to a new classification.12 The resulting conservation of natural resources should justify courts in confining the other classes to the waters which are clearly within them. Strangely enough one of the states where irrigation is of least importance has felt most strongly the desirability of treating flood water differently from surface water or water in a watercourse, as evidenced by a decision that a non-riparian owner has not only a right to flood water, but also a right to have it sweep across a riparian owner's land. Thompson v. New Haven Water Works, 86 Atl. 585. Praiseworthy as is the feeling that inspired such a decision, the actual holding is objectionable. It subjects the riparian owner's land to a highly onerous easement that is utterly inconsistent with the common law of real property. Furthermore, the right given the plaintiff is to have the fertilizing water flow across his land. If the court is consistent and gives this right to all within the reach of the floods, none of the water can be taken out. The inevitable result is that the windfall will be wasted in the sea. The case, therefore, falls short of a satisfactory solution of the problem.

COMPETITION AS A JUSTIFICATION OF THE SECONDARY BOYCOTT. — A. refuses to do business with B. unless B. stops dealing with C. B. complies with A.'s demand. May C. sue A.? A.'s act is admittedly tortious unless justifiable under certain limited rights.1 One of these is his right to compete with others for trade or employment. But under what circumstances does this right justify him here?

Where A. is an individual we have no authority on this question. Nevertheless, a partial answer may be ventured. The right to inflict intentional harm on another can be recognized, only because of some preponderating public benefit anticipated from its exercise, - hence its extent must be determined by what is necessary to secure this benefit. Now the objects of the right to compete are to compel every citizen to give the community his best service, to have work done by the most competent, and to secure equality of opportunity to all. None of these objects can well be attained unless the citizen is free to concentrate his efforts along lines chosen by himself, whence it results that the right to compete includes the right to refuse to take part in any enterprise

if it were in a different watercourse. A difficult question of fact is raised, and this has constrained many authorities to treat flood water in the watercourse in the same way as the regular stream. See WIEL, Water RIGHTS IN THE WESTERN STATES, 3 ed., p. 377.

12 Authorities are collected in 25 L. R. A. 531; WIEL, WATER RIGHTS IN THE WESTERN STATES, 3 ed., p. 375.

1 Walker v. Cronin, 107 Mass. 555; Delz v. Winfree, 80 Tex. 400, 16 S. W. 111. Cf. Tuttle v. Buck, 107 Minn. 145, 119 N. W. 946. See POLLOCK, TORTS, 9 ed., p. 21. 2 See the language of Bowen, L. J., in Mogul S. S. Co. v. McGregor, L. R. 23 Q. B. D. 598, 613.

unless given a share large enough to suit him. This proposition, applied to four typical cases, seems to yield results consistent with everyday practice. (1) B. wishes A., a lumber dealer and contractor, to do the entire building of a house, save for the interior woodwork, which he means to instal himself. A. refuses unless B. will buy the wood for the interior finish from him. Clearly neither B. nor any competing lumber dealer could sue. (2) Same facts, except that B. intends to employ C. to furnish and instal the interior finish. A. refuses to build unless C. will buy his lumber. C. sues. It is submitted that he can no more succeed than could B. in the case above. A.'s right to dictate his own share cannot reasonably depend on such accidents as the number of would-be participants in the enterprise. (3) Here A. refuses to build if C. is employed, unless C. uses A.'s lumber on other contracts for interior finish, or (4) unless C. joins a builder's association. In these cases C.'s discharge is desired, not in order that A.'s labor or materials may replace his, but simply to make C., or those who deal with him, less able or less willing to compete with A. in other fields. The chances that a monopoly so created will be economically efficient are too remote to justify the injury to C., hence the justification fails. In short, then, A. may boycott the labor or products of others only for the purpose of replacing the specific unit of labor or product boycotted with his own.

Such, it is believed, is the law where A. is an individual, or a coöperative organization forming a single business unit.5 Are the rights of a mere association of mutually independent individuals the same? 6 Here authorities are copious, but conflicting. Certainly the combination is liable in cases like the third and fourth above, but as to the first

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3 See discussion in Pickett v. Walsh, 192 Mass. 572, 583, 78 N. E. 753, 758.

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4 That is, the justification of competition. If a strike to force men into a union is lawful, as was argued by Holmes, J., in Plant v. Woods, 176 Mass. 492, 505, 57 N. E. 1011, 1016, it must be because monopoly and high prices are preferable to competition in the field of labor. An effort "to get more than one is now getting" is not of course synonymous with competition.

As an ordinary partnership or corporation. Such a "combination" can perform services which its members acting separately could not. Hence it is to be likened to an individual, rather than to those mere aggregations of men which accomplish nothing new except to suppress internal competition. The distinction between these two sorts of combinations is probably the principal ingredient in the famous "rule of reason." See United States v. Du Pont de Nemours, 188 Fed. 127, 150; United States v. Standard Oil Co., 221 U. S. 1, 75, 31 Sup. Ct. 502, 520.

For dicta that they are the same, see Mogul S. S. Co. v. McGregor, L. R. 23 Q. B. D. 598, 613; Delz v. Winfree, 80 Tex. 400, 404, 16 S. W. 111; POLLOCK, TORTS, 9 ed., pp. 333, 341. Contra, Pickett v. Walsh, 192 Mass. 572, 582, 78 N. E. 755, 757. SALMOND, TORTS, 2 ed., p. 466.

7 Barrv. Essex Trades Council, 53 N. J. Eq. 101, 30 Atl. 881; Casey v. Cincinnati Typographical Union, 45 Fed. 135; Pickett v. Walsh, supra. Contra, Pierce v. Stablemen's Union, 156 Cal. 70, 103 Pac. 324. But it is not believed that the combination is here an essential element in the tort. See Giblan v. National Amalgamated Union, [1903] 2 K. B. 600, 619.

8 Boutwell v. Marr, 71 Vt. 1, 42 Atl. 607; Martell v. White, 185 Mass. 255, 69 N. E. 1085; Plant v. Woods, 176 Mass. 492, 56 N. E. 1011; Purvis v. United Brotherhood, 214 Pa. 348, 63 Atl. 585; March v. Bricklayers' Union, 79 Conn. 7, 63 Atl. 291. Contra, Macauley v. Tierney, 19 R. I. 255, 33 Atl. 1. Here again the element of combination is not deemed essential.

• The following cases hold that the combination is liable. Lucke v. Clothing Cutters' Assembly, 77 Md. 396, 26 Atl. 505; Jackson v. Stanfield, 137 Ind. 592, 36 Ñ. E. 345.

and second 10 the decisions are sharply split. The following conclusions, however, are suggested as sound, and tenable on the authorities. First, the first and second cases above cannot fairly be distinguished, for the reasons already given. Secondly, the combination is usually liable in both. A. is not a unit for any purpose of serving the community, hence it cannot claim the right to compete as a unit." The fact is that X. and Y. are demanding C.'s business for Z. Whatever the merits of this transaction, they are not those of competition.12

In a recent case a carpenter's union consistently refused to handle any lumber manufactured in an "open shop." Plaintiff, an "open shop' manufacturer, sought to enjoin this boycott so far as it affected his product. Relief was denied. Paine Lumber Co., Ltd., v. Neal, 50 N. Y. L. J. 1497 (U. S. D. C., So. Dist. of N. Y., November, 1913). The decision, though inconsistent with the views here expressed, is in accord with prior New York cases, since the facts are those of the second supposed case, in which A., even though a combination, is held justified in New York.13 But the court's reason, namely, that a boycott directed indiscriminately against all persons of a class is a public wrong, to be enjoined only at the suit of the state, is unsound. Public property rights, like the right to travel on the roads, cannot, indeed, be vindicated by private persons; but where the right infringed is vested in the plaintiff individually, he may sue to protect it, no matter how many other citizens may be deprived of the same right by the defendant's act.14 The right to engage in business is of the latter class.15 There seems to be no warrant for putting this new obstacle in the path of those seeking to escape the oppression of "organized" labor or capital.

Contra, National Protective Association v. Cumming, 170 N. Y. 315, 63 N. E. 369; Pickett. Walsh, supra; Scottish Co-operative Society, Ltd., v. Glasgow Fleshers' Association, 35 Scot. L. Rep. 645. Cf. Mogul S. S. Co. v. McGregor, [1892] A. C. 25. 10 The following cases hold that the combination is liable. Quinn v. Leathem, [1901] A. C. 495; Lyons v. Wilkins, [1896] 1 Ch. 811. Contra, Pickett v. Walsh, supra; National Fireproofing Co. v. Mason Builders' Association, 169 Fed. 259.

11 This fact alone suffices to answer the argument that because some individuals are more powerful than some combinations, therefore individuals and combinations should be treated alike. That argument is still further weakened by the fact that an individual can seldom make his services indispensable without subjecting himself to the public service law. Inter-Ocean Publishing Co. v. Associated Press, 184 Ill. 438, 56 N. E. 822.

12 Here again it is necessary to notice a modern tendency to hold that the social interest justifies restraints on competition among laborers for certain purposes. National Protective Association v. Cumming, 170 N. Y. 315, 323, 63 N. E. 369, 370; National Fireproofing Co. v. Mason Builders' Association, 169 Fed. 259, 268. Properly understood, these decisions restrict, rather than extend, the right of competition. is National Protective Association v. Cumming, supra; National Fireproofing Co. v. Mason Builders' Association, supra.

14 Wesson v. Washburn Iron Co., 95 Mass. 95; King v. Morris & Essex R. R. Co., 18 N. J. Eq. 397.

15 This is shown by the fact that it is "property" protected by the Constitution. Allgeyer v. Louisiana, 165 U. S. 578, 17 Sup. Ct. 427. The right to use the roads is not so protected. Stanwood v. Malden, 157 Mass. 17, 31 N. E. 702; Kings Co. Fire Ins. Co. v. Stevens, 101 N. Y. 411, 5 N. E. 353. See 2 ELLIOTT, ROADS AND STREETS, §§ 1172, 1180, 1181.

RECENT CASES.

KNOWLEDGE

OF

AGENCY-NATURE AND INCIDENTS OF RELATION AGENT: WHEN IMPUTED TO PRINCIPAL. The president of a bank secured by fraud a promissory note from the maker, which he indorsed for value to the bank, acting both as indorser and as agent for the bank. The bank sues the maker, who claims that the bank was affected, through its agent, with notice of the fraud. Held, that the bank may not recover. First Nat. Bank v. Burns, 103 N. E. 93 (Ohio).

To the general rule that the knowledge of the agent within the scope of employment is the knowledge of the principal, an exception is made where it would be against the agent's interest to communicate such knowledge. Frenkel v. Hudson, 82 Ala. 158; Innerarity v. Merchants' National Bank, 139 Mass. 332. See MECHEM, AGENCY, § 723. The theory is that the general rule rests on the presumption that the agent has communicated his knowledge to the principal; it does therefore not apply where it is clear that the agent will not in fact inform the principal. See Wickersham v. Chicago Zinc Co., 18 Kan. 481, 486. Another ground for the general rule is the identification of principal and agent. See Mountford v. Scott, 3 Madd. 34, 40; Houseman v. Girard Building Ass'n, 81 Pa. St. 256, 262. On this view there is no basis for such an exception, for knowledge would be implied in all cases. Each theory seems but a fictitious explanation of a rule of policy, that one who deals through agents is bound by notice that they have acquired. It seems fair, on this basis, to make an exception where the agent is acting for his own adverse interests. The principal case denies any such exception. The court, however, makes the distinction that where the agent is the sole party in the transaction, his knowledge will be imputed to the principal, in spite of his adverse interest. Newell v. Hadley, 206 Mass. 335, 92 N. E. 507. Contra, National Bank of Nephi v. Foote, 12 Utah 157, 42 Pac. 205. As a sub-exception, this distinction seems to be based on a sound policy, that a principal should not be regarded as a purchaser without notice, when he must rely on the act of the very agent who knew. The result may further be supported on the theory that the agent has really confederated in a tort on the defendant, and that the principal cannot claim the benefit of the wrongful act without accepting the responsibility for it as well. The principal case therefore reaches a correct result, it is submitted.

OF

BANKRUPTCY PREFERENCES - STATUTES REQUIRING RECORDING TRANSFERS. More than four months before bankruptcy an insolvent transferred property to the appellant, which the latter could reasonably have known would result in a preference. The transfer was by deed, which was recorded less than four months before the filing of the petition. By the law of Ohio the unrecorded deed was valid except as to subsequent purchasers in good faith. The trustee in bankruptcy now seeks to avoid the transfer as a preference. Held, that the deed may be set aside. Carey v. Donohue, 31 Am. B. Rep. 210 (C. C. A., 6th Circ.).

Section 60, a, of the National Bankruptcy Law provides that "where a preference consists of a transfer, such period of four months shall not expire until four months after the date of recording or registering of the transfer, if by law such recording or registering is required." This provision was added in 1903 for the purpose of changing the rule by which the date of such a preferential transfer was held to take effect from delivery of the deed. See COLLIER ON BANKRUPTCY, 8 ed., 654. Such a rule made it possible for a creditor to conceal his preference for the four months and record his deed just before bankruptcy. Unlike § 3, b,

of the act, the provision in § 60, a, is effective only when recording is required, not when it is "permitted or required." This may mean one of three things. First, that the clause is operative only when recording is necessary to make the transaction valid between the parties. See In re Hunt, 139 Fed. 283, 286. The amendment is then ineffective. Or the meaning may be that "required" is equivalent to "required as against creditors." Several cases have gone this far, putting the trustee in the shoes of the creditors. Loeser v. Savings, etc. Co., 148 Fed. 975. In re Montague, 143 Fed. 428. See 20 HARV. L. Rev. 645. Both of the above interpretations proceed upon the theory that for recording to be required within the meaning of the statute it must be required as against those persons the trustee represents. But there is nothing whatever in the language of § 60, a, which would limit its operation to transfers of this kind. The interpretation adopted by the court in the principal case, that the clause includes transfers where for any purpose recording is required, seems more desirable. The purpose of this section of the amendment is to make more uniform the rule for avoiding preferences. Since the state statutes vary greatly as to the class of persons against whom record is required, it does not make for uniformity for that factor to determine whether there has been a preference. Nor is the view contended for without the support of authority. In re Beckhaus, 177 Fed. 141; English v. Ross, 140 Fed. 630. Contra, Meyer Bros. v. Pipkin Drug Co., 136 Fed. 396. It is to be hoped that the Supreme Court will adopt this, rather than follow out its former view that the trustee's right to avoid a recorded transfer depends both upon his status and the peculiarities of the state statutes. York, etc. Mfg. Co. v. Cassell, 201 U. S. 344.

BANKRUPTCY PROVABLE CLAIMS CLAIMS UNDER EXECUTORY CONTRACTS. The Auditorium Hotel entered into a five-year contract granting to a transfer company, in consideration of a certain monthly sum, their exclusive baggage and livery privilege. Soon after, the transfer company became bankrupt, and the hotel now claims to prove for damages against the estate. Held, that the bankruptcy is an anticipatory breach of the contract and that proof of the claim will be allowed. In re Scott Transfer Co., Circuit Court of Appeals, Seventh Circuit, October Term, 1913.

For a discussion of the principles involved in this case, see NOTES, p. 469.

CARRIERS - BAGGAGE UNACCOMPANIED BY OWNER.-The plaintiff bought a ticket on the defendant's line and, although she did not become a passenger herself, used it to send baggage, which was lost. Held, that the plaintiff may recover. Alabama Great Southern R. Co. v. Knox, 63 So. 538 (Ala.).

What authority there is, is contrary to this decision. Marshall v. Pontiac R. Co., 126 Mich. 45, 85 N. W. 242; Southern Ry. Co. v. Dinkins, 139 Ga. 332, 77 S. E. 147. The reasoning of these latter cases, it is submitted, is correct. The railroad has held itself out as a carrier of passengers only, and it is solely as a reasonable incident of passenger carriage that baggage carriage may be required at all. The right to transportation of baggage is not one of two coordinate privileges sold together for a single price. Indeed, the essential element in creating carrier's liability for baggage is apparently delivery to the railroad with intent to become a passenger. Wood v. Maine Central R. Co., 98 Me. 98, 56 Atl. 457, commented on in 17 HARV. L. REV. 354; Beers v. Boston & Albany R. Co., 67 Conn. 417, 34 Atl. 541, criticized in 10 HARV. L. Rev. 186. It has even been suggested that if the contemplated journey is never taken the carrier be relieved of responsibility ab initio. See WYMAN, PUBLIC SERVICE CORPORATIONS, § 728. This seems fair where no ticket was ever purchased. But it would not seem reasonable to enforce it against a plaintiff who, having purchased a ticket with the bonâ fide intention of making the trip, was prevented from going by circumstances arising subsequent to checking the baggage.

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