6

In recent times it has been held that for a third person maliciously to induce a party to any kind of contract to break his promise to the plaintiff, or to refuse to make a contract with the plaintiff, is actionable, if actual damage ensue. For example: W is under an engagement with the plaintiff to sing exclusively at his theatre for a certain season. The defendant, maliciously intending to injure the plaintiff,' induces W to break her contract and refuse to sing for the plaintiff during the time agreed upon, to the plaintiff's damage. This is a breach of duty.1 By a slight change of words this example may be made an example of inducing W to refuse to contract with the plaintiff.2

8

In such cases malice is considered necessary to the right of action. But what the term 'malice' here means was not left clear by the case just cited. An expression of one of the justices in that case might indicate that to cause the breach, with notice of the existence of the contract, would be sufficient to constitute malice; but that would be to put a dangerous check upon common and generally deemed lawful acts of competition, and something more than this has accordingly been thought necessary. In a late reconsideration of the subject in a similar case of contract for exclusive services, not man

4

1 Lumley v. Gye, 2 El. & B. 216 ; s. c. L. C. Torts, 306 ; Temperton v. Russell, 1893, 1 Q. B. 715, C. A.; Cases, 109; Angle v. Chicago Ry., 151 U. S. 1, 13, 14. But see Boyson v. Thorn, 33 Pac. Rep. 492, California.

2 For an actual example of the kind, as well as of causing the breach of a contract, see Temperton v. Russell, supra. Also see Flood v. Jackson, 1895, 2 Q. B. 21, C. A.; Graham v. St. Charles St. R. Co., 27 L. R. A. 416 (La.); Walker v. Cronin, 107 Mass. 555. But see Rice v. Albee, 164 Mass. 88, and qu.

8 It must now be considered clear law that a person who wrongfully and maliciously, or, which is the same thing, with notice, interrupts the relations subsisting between master and servant,' etc. Crompton, J. in Lumley v. Gye, supra.

4 See Pollock, Torts, 480, 2d ed.

ual, the English Court of Appeal treated malice as a necessary part of the plaintiff's case, and considered the term as meaning that the defendant must have sought to induce the party to break his contract for the indirect purpose of injuring the plaintiff, or of benefiting the defendant at the expense of the plaintiff.' A malicious act of that kind was held to be a wrongful act.2 Put generally, this appears to mean that the act is shown to be malicious if the plaintiff shows that it was done without just cause or lawful excuse.3

§ 3. OF DAMAGE.

It is not enough that there has been a breach of the contract; for the purpose of an action for the wrongful interference, actual damage must be proved. It is not necessary, however, that there should have been an engagement for a fixed period of time, such as 'for the season;' the action lies equally where no time is fixed, or where the engagement is merely from day to day, or by the piece. For example: The defendant maliciously induces workmen, working by the piece, to leave the

1 Bowen v. Hall, 6 Q. B. Div. 333, 338, Lord Esher. The argument that the damage was caused, not by the defendant, but by the party who broke his contract, was answered by Lord Esher's saying that the result was both intended and brought about by the defendant. 2 Id. Comp. what is said, ante, p. 99, note.

8 Flood v. Jackson, 1895, 2 Q. B. 21, 40, Lopes, L. J. See Walker v. Cronin, 107 Mass. 555, 566, 567. Welles, J. for the court: 'Every one has a right to enjoy the fruits and advantages of his own enterprise, 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 comes . . . 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' is unlawful.

Temperton v. Russell, 1893, 1 Q. B. 715, C. A.; Cases, 109.

plaintiff's employment. This is a breach of duty, for the plaintiff was entitled to the fruits and advantages to arise from a continuance of the employment.1

Indeed, it has lately been held that specific damage need not be shown in cases in which it appears that some damage, however undefined, must have resulted. Still, it is deemed not unlawful to induce workmen to enter another's service upon the expiration of their present engagement, though they had had no no intention quitting.

§ 4. OF THE DISTINCTION BETWEEN CONTRACT AND

PROPERTY.

of

What has been said of the statement of the duty in question will show, when read in contrast with cases of wrongs to property in the ordinary sense, that contract is not treated as property, though the first impression from the subject might be that it was. The distinction between rights of property and rights of contract is not impugned. The former are absolute, and breach of them is a breach therefore of an absolute duty; that is to say, it is not necessary to consider the motive with which an interference with a right of property takes place. Nor indeed is special damage necessary, in such a case, to constitute the tort.

1 Walker v. Cronin, 107 Mass. 555; Cases, 102; Gunter v. Astor, 4 J. B. Moore, 12; Hart v. Aldridge, 1 Cowp. 54, stated in Lumley v. Gye, L. C. Torts, 306, at p. 323, journeymen shoemakers working by the piece.

2 Exchange Tel. Co. v. Gregory, 1896, 1 Q. B. 147, C. A. Comp. Ratcliffe v. Evans, 1892, 2 Q. B. 524, 528, Bowen, L. J.

8 Boston Glass Manuf'y v. Binney, 4 Pick. 425; Walker v. Cronin, 107 Mass. 555, 568.

Statement of the duty. A owes to B the duty to forbear to publish of B (1) defamation in its nature actionable per se, (2) defamation in its nature not actionable per se to the damage of B.

1. Defamation is any language, oral or written, or any figure, tending to bring the person of whom it is published into hatred, ridicule, or disgrace, or to injure him in respect of his vocation.

2. The term 'figure' is here used to denote painting, picture, sign, or effigy.

3. Slander is oral defamation.

4. Libel is defamation by writing, printing, or figure. 5. Publication is the making defamation known to a third person.

6. Whenever language is spoken of as defamatory it is understood to be false.

7. What the phrase 'defamation in its nature actionable per se' means will be made known by the proposition of law following, and the consideration of its parts.

The general proposition of law is, that the first of the two above-stated duties is violated by A by the publication of words, language, or figure of a false and defamatory

character concerning B, in either of the following ways: (1) where A imputes to B the commission of a criminal offence punishable by imprisonment, or other corporal penalty, in the first instance,1 clearly if the offence is indictable and involves moral turpitude, or is punishable by an infamous punishment; (2) where A imputes to B the having a contagious or infectious disease of a disgraceful kind; (3) where A makes a derogatory imputation concerning B in respect of his office, business, or occupation; (4) where A makes an imputation concerning B tending to disinherit him; (5) where the defamation is a libel. Each of these classes of defamation must be examined.

§ 2. OF THE INTERPRETATION OF LANGUage.

Before proceeding to the consideration of any of these classes of breaches of duty, it should be observed that, subject perhaps to one exception, the language or figure complained of is to be understood presumptively in its natural and usual sense, i.e. in the sense in which the persons who heard or read or saw it, as men of ordinary intelligence, would understand it. It is not to be con

1 Pollock, Torts, 219, 2d ed. It is not enough that the offence is punishable by 'fine in the first instance, with possible imprisonment in default of payment.' Id., referring to Webb v. Beavan, 11 Q. B. D. 609. The offence charged need not in England be indictable. Webb v. Beavan.

2 Hankinson v. Bilby, 16 M. & W. 442; Simmons v. Mitchell, 6 App. Cas. 156. Whether the words in slander are legally defamatory or not is, commonly at least, a question of law. Capital Bank v. Henty, 7 App. Cas. 741. In criminal cases of libel the jury were made the judges whether the language was libellous or not, in England, by Fox's Act, 32 Geo. 3, c. 60. The same practice prevails in this country. The practice under Fox's Act has been adopted in England in civil cases of libel also; in some of our States the same is true, in others not.