CHAPTER V PROCURING BREACH OF CONTRACT Statement of the duty. A, having knowledge or notice of the existence of a contract between B and C, owes the duty to B not to procure C to break his contract, to B's damage. It should be remembered that cases of this kind, though nominally cases of malice, are not such in reality. The knowledge or notice of the relation, called 'malice,' is only a necessary part of the breach of duty complained of in the sense that danger must be observed or observable (in ordinary cases) to create liability'. Proof of malice as a distinct entity is not necessary. The case therefore belongs to this Part II., Unlawful Acts regardless of means or malice. From very early times it has been actionable by the common law of England for one to entice away another's servants, with notice of the employment; though the term 'servant' at first was used to designate a person employed in menial service3, that is, one living with the master as a member of his household or Enticing servants away: extension of idea of service. 1 Ante, pp. 12, 13. 2 Allen v. Flood, 1898, A. C. 1, 121-123, 154. 3 The term was not applied to the master's children, though they were and are in law his servants, of his household. See Taylor v. Neri, infra. The secondary meaning of 'menial' became the common meaning long ago. In early times of English vassalage a man's menial servants were so much part of his own station in life, or status, that merely to entice them away appears to have been actionable. Compare Bigelow's L. C. Torts, 227, 290, 291. Secus of his children, until still earlier times of serfdom. Taylor v. Neri, infra. But to seduce his daughter was trespass until the nineteenth century. B. T. 8 family. But that was because there was then little if any service that was not of that kind'. When in process of time there came to be much service in which the servants were not members of the master's household, the rule was extended accordingly and deemed to apply to all cases in which the relation of master and servant existed; though for a time not without question. The extension of the rule is now well settled3. § 1. MASTER AND SERVANT: WHAT MUST BE PROVED Notice and damage. The plaintiff has to prove the enticement from service, with notice, to his damage. Such evidence will entitle him to recover. For example: The defendant entices away from the plaintiff's employment the plaintiff's journeymen shoemakers working by the piece and not 'menial' servants, with notice of their relation to the plaintiff, to the plaintiff's damage. The defendant is liable. Again: The defendant entices away from the plaintiff's employment, with notice thereof, the plaintiff's piano workmen working by the piece and not being menial servants, to the plaintiff's damage. The defendant is liable. Again: The defendant entices away the plaintiff's workmen employed under contract generally and 1 The Statute of Labourers of 25 Edw. 3, stat. 1, may be noticed. The statute grew out of the lack of labourers caused by the plague, and accordingly related to ploughmen and others doing menial service. This has sometimes been supposed to be the origin of the master's right against third persons, but that is now considered a mistake. The statute was repealed, but the master's right of action has continued, without legislation, to this day. The Statute of Labourers simply added to the law certain provisions not of the common law, as in regard to harbouring servants. See Lumley v. Gye, 2 El. & B. 216, Wightman, J. 2 See Ashley v. Harrison, 1 Peake, 194; s. c. 1 Esp. 48; Taylor v. Neri, 1 Esp. 386. In the second case, an action for assaulting an opera singer whereby the plaintiff lost his service, Eyre, C. J., said that he did not think the law extended beyond menial servants, and pointed out that a father could not maintain an action for merely enticing away of his daughter per quod servitium amisit. 3 See Lumley v. Gye, 2 El. & B. 216; Crompton, J.; Hart v. Aldridge, 1 Cowp. 54; Gunter v. Astor, 4 J. B. Moore, 12. 4 Hart v. Aldridge, 1 Cowp. 54, a case often followed. 5 Gunter v. Astor, 4 J. B. Moore, 12. not as menial servants, in the manufacture of boots and shoes, with notice of the employment, to the plaintiff's damage. The defendant is liable1. It matters not in cases of a binding engagement to service that the servant had not yet entered upon the performance of Service not begun. the service at the time of the enticement or seduction. If by the terms of the contract or the apprenticeship (for there is no difference between an ordinary contract of hiring and an apprenticeship, so far as the present subject is concerned) the master has a right to require performance of the services at the time of the enticement, he has a right of redress for a wrongful interference with that right. For example: The defendant induces the plaintiff's gardener to refuse altogether to carry out his engagement to make the plaintiff's gardens, though the gardener, owing to dissatisfaction with his engagement, has already absented himself for a considerable time from his duties under the contract of hiring. The defendant is liable". Notice. In the foregoing examples the defendant had notice of the existence of the relation of master and servant when he procured the servant to leave his master. Now, notice of the existence of this relation is necessary in all cases of actual service; in the absence of notice, the party enticing away or seducing the servant violates no duty to the master. But it matters not that such party had no notice at first of the existence of the relation, if he afterwards acquire notice and then persist in keeping the servant away from his master. For example: The defendant employs the plaintiff's servant, upon application by the latter; the servant having left the plaintiff during the existence of his contract of service, of 1 Walker v. Cronin, 107 Mass. 555. The allegation of malice, and with unlawful purpose to injure the plaintiff in his business, has been omitted from the foregoing statement as surplusage, the malice and the unlawful purpose being found in doing the act with notice of the relation. See ante, p. 113. 'It must now be considered clear law that a person who wrongfully and maliciously, or, which is the same thing, with notice, interrupts the relation subsisting between master and servant,' etc. Crompton, J., in Lumley v. Gye, 2 El. & B. 216; Allen v. Flood, 1898, A. C. 1, 154. But see Glamorgan Coal Co. v. South Wales Miners' Federation, 1903, 1 K. B. 118, 131. 2 Compare Lumley v. Gye, 2 El. & B. 216. which, however, the defendant is ignorant. Afterwards the plaintiff informs the defendant that the person employed by him is his (the plaintiff's) servant. The plaintiff requests the servant to return to him, and the servant refuses; and the defendant then continues to keep him in his employ. The defendant is liable for so continuing to keep the servant, though not for taking him into his service1. In order, however, to maintain an action for preventing a renewal of the service (that is, for what is called 'harbouring' a servant), and not for interrupting it, it is necessary Harbouring. that there should be a binding contract of service. If there be no such engagement, the defendant cannot be liable to the plaintiff for persuading the servant to stay where he is rather than to return to the plaintiff, since the plaintiff neither has any right to require the service in such a case, nor is he at the time in the enjoyment of it as a gratuity. For example: The defendant receives, without notice, a person who has been acting in the service of the plaintiff under a contract void by the Statute of Frauds, and afterwards, on notice of the plaintiff's claim to the service, during the term of service agreed upon, refuses to send the person away. This is no breach of duty to the plaintiff2. Binding en necessary. § 2. GRATUITOUS SERVICE It was formerly a matter of some doubt if an action could be maintained for interrupting, with notice, the gratuitous relation of master and servant. It was sometimes gagement not supposed that inasmuch as the master in such a case could not require the services, he had no right to them which could be infringed. But this view does not now obtain. Though a person may not be able to require the bestowment of a gratuity, he has a right to it when it is bestowed, and in the course of receiving it, and no one may interrupt his actual enjoyment of the gratuity3. Hence if a 1 Blake v. Lanyon, 6 T. R. 221. 2 Sykes v. Dixon, 9 Ad. & E. 693. 247; Pilkington v. Scott, 15 M. & W. 657. 3 See ante, pp. 5, 6. See also Hartley v. Cummings, 5 C. B. person be actually engaged in giving his services to another, any one who, with notice, voluntarily interrupts the service violates a legal duty to the one receiving the gratuity, and becomes liable in damages. For example: The defendant, with notice, entices away a young woman while she is in the gratuitous service of the plaintiff, and thereby deprives the plaintiff of the benefit of her help. The plaintiff is entitled to recover damages therefor1. Indeed, it matters not in such cases that the person enticed was actually under obligation to another; if the latter do not insist upon his rights, no third person can set up those rights to escape liability for a wrongful act. For example: The defendant, with notice, seduces a married woman while she is rendering gratuitous service to the plaintiff, her father. The defendant is liable, and cannot set up in defence the paramount right of the woman's husband to her help2. As was observed, however, in the preceding section, and as follows from what has been said in the present, no action can be maintained for mere harbouring a servant serving gratuitously, though with notice: the action lies solely for enticing the person away or otherwise interrupting the performance of the service while the servant is disposed to, and engaged in, the performance of it. When such servant has put an end to the of the master at once terminate. relation, the rights Master's § 3. CONTRACT IN GENERAL After great discussion it was held in England in 1853 that the master's right in cases like those in section 1 is only an example and not an anomalous or a special case; a majority of the Queen's Bench laying down the rule as new only in the sense that it was then clearly and definitely stated, that to procure a man to break his contract, with notice of the existence of the same, is actionable if the plaintiff, the other party to the contract, suffered 1 Evans v. Walton, L. R. 2 C. P. 615. The young woman in this case was the plaintiff's daughter, but she was of age. 2 Harper v. Luffkin, 7 B. & C. 387. |