Carew v. Rutherford , 106 Mass. 1 ( 1870 )

Chapman, C. J.

The declaration contains a count in tort,

and a count for money had and received. The count in tort alleges, in substance, that the plaintiff was engaged in carrying on the business of cutting freestone in Boston, and employed a great many workmen, and had entered into a contract with builders to furnish them with such stone in large quantities; and the defendants, conspiring and confederating together to oppress and extort money from him, and pretending that he had allowed some of said builders, with whom he had made contracts, to withdraw from his shop a part of the work he had contracted to do, and to procure the same to be done out of the state, caused a vote of the Journeymen Freestone Cutters’ Association of Boston to be passed, to the effect that a fine of five hundred dollars was levied upon the plaintiff, and read the vote to him, and threatened him that unless he paid the fine they would, by the power of the association, cause a great number of the workmen employed by him to leave his service ; that he refused to pay it, and the defendants caused twelve of his workmen to leave his service for that reason, at their instigation. They further threatened him that, unless he paid the fine, they would, by the power of the association, prevent him from obtaining suitable workmen for carrying on his business, and did so prevent him till he paid the fine, and thus extorted from him the sum of five hundred dollars.

Trial by jury was waived, and the facts found by the judge are reported. It appeared that the plaintiff had made a contract to furnish stone for the Roman Catholic cathedral in Boston, and had employed journeymen to do the work, and relied upon them to fulfil his contracts; and the facts stated in the declaration were substantially proved. The plaintiff was not a member of the association. He had sent some of his work to be done in New York because he could not obtain a sufficient force to do it in Boston, and had not proper stock for the work. If the action can be maintained, it is on the ground that the defendants have done the acts alleged, in violation of the legal rights of the plaintiff.

By the Gen. Sts. c. 160, § 28, which is cited by the plaintiff’s counsel, “whoever, either verbally or by a written or printed communication,” “ maliciously threatens an injury to the person or property of another, with intent thereby to extort money or any pecuniary advantage whatever, or with intent to compel the person so threatened to do any act against his will, shall be punished ” as the section prescribes. As this is a penal statute, perhaps it does not extend to a threat to injure one’s business by Jireventing people from assisting him to prosecute it, whereby he loses his profits and is compelled to pay a large sum of money to those who make the threat, though the threat is quite analogous to those specified in the statute, and may be not less injurious. We shall therefore consider, not whether the acts alleged and proved against the defendants were unlawful within the statutes but whether they were so 11 common law.

The constitution and by-laws of the Journeymen Freestone Cutters’ Association, whose agents the defendants profess to have been, have been laid before us. We have not had occasion to examine them critically; for the doctrine stated in Commonwealth v. Hunt, 4 Met. Ill, 129, is unquestionably correct, namely, that, when an association is formed for purposes actually innocent, and afterwards its powers are abused, by those who have the control and management of it, to purposes of oppression and injustice, it will be criminal in those who misuse it, but not in the other members of the association. Upon the same principle, if the wrongful acts done are tortious, whether criminal or not, the persons who are guilty of the tortious acts will be civilly liable to those whom they have injured. If the defendants have injured the plaintiff unlawfully, the articles of association cannot protect them, and it is immaterial whether persons who are not parties to the action are guilty.

The acts charged are alleged to have been done in pursuance of a conspiracy. On this point, if two or more persons combine to accomplish an unlawful purpose, or a purpose not unlawful by unlawful means, their conduct comes within the definition of a criminal conspiracy as stated in Commonwealth v. Hunt, cited above. If, in pursuance of such a conspiracy, they do an act injurious to any person,- he may have an action against them to recover the damage they have done him.

Une of the aims of the common law has always been to protect every person against the wrongful acts of every other person, whether committed alone or in combination with others ; and it has provided an action for injuries done by disturbing a person in the enjoyment of any right.or privilege which he has. Many illustrations of this doctrine are given in Bac. Ab. Actions on the Case, F., among which are the following : “ K A., being a mason, and using to sell stones, is possessed of a certain stone-pit, and B. intending to discredit it and deprive him of the profits of the said mine, imposes so great threats upon his workmen, and disturbs all comers, threatening to maim and vex them with suits ii they buy any stones, so that some desist from working, and others from buying, A. shall have an action upon the case against B., for the profit of his mine is thereby impaired.” So “ if a man menaces my tenants at will of life and member, per quad they depart from their tenures, an action upon the case lies against him.” “ If a man discharges guns near my decoy-pond with design to damnify me by'frightening away the wild fowl resorting thereto, and the wild fowl are thereby frightened away, and I am damnified, an action on the case lies against him.” Slander as to one’s profession or title is a wrong of a similar character.

The illustrations given in former times relate to such methods of doing injury to others as were then practised, and to the kinds of remedy then existing. But as new methods of doing injury to others are invented in modem times, the same principles must be applied to them, in order that peaceable citizens may be protected from being disturbed in the enjoyment of their rights and privileges; and existing forms of' remedy must be used. Thus in the recent case of Marsh v. Billings, 7 Cush. 822, the plaintiff, being a hotel-keeper, had a badge on his coaches indicating the name of his hotel. The defendant adopted his badge, and used it fraudulently to entice customers away from his hotel, and was held liable to an action for the damage occasioned to the plaintiff thereby. 1

In the cases cited above, the injury was done by an individual; bnt there are other cases where an element of the tort is a conspiracy of two or more persons who combine together for the purpose of doing the wrong. Any person has a right to express in a reasonable manner approbation or disapprobation of an actor at a theatre. But if several persons combine together to ruin an actor, and hire persons to attend, and with hissing, groans and yells, compel him to desist, and prevent the manager from employing him, such conduct is actionable. Gregory v. Brunswick, 6 Man. & Gr. 205. ' '

There are many cases where money has been wrongfully obtained by fraud, oppression or taking undue advantage of another, without doing him any other injury. This, being tortious, would sustain an action expressly alleging the tort. But an action for money had and received has been maintained in many cases where money has been received tortiously without any color of contract. 1 Chit. PL (6th ed.) 862. This class of cases is referred to, because they discuss the question what constitutes an unlawful obtaining of money, such as will subject the party obtaining it to an action for damages.

In Shaw v. Woodcock, 7 B. & C. 78, it is said that, i£ a party making a payment is obliged to pay the money in order to obtain possession of things to which he is entitled, the payment is not a voluntary, but a compulsory payment, and may be recovered back.

In Morgan v. Palmer, 4 D. & R. 283, Abbott, C. J., says that, in order to render a payment voluntary in the proper sense of the word, the parties concerned must stand upon equal terms ; there must be no duress operating upon the one; there must be no oppression or fraud practised by the other.

In Cadaval v. Collins, 4 Ad. & El. 858, money was recovered back which was obtained by abuse of' legal process.

In Wakefield v. Newbon, 6 Q. B. 276, money extorted from another by means of the wrongful detention of his goods was recovered back.

The same doctrine is well established in this country. In Sortwell v. Horton, 28 Verm. 373, the principle was stated to be, that money may be recovered back that had been paid in discharge of a claim which was fictitious and false, and known to be so by the party making the claim, and who induced the payment by menaces, duress or taking undue advantage of the other’s situation. There are several cases where the action has been maintained to recover back money which was paid to procure a release of property which the defendant had detained illegally; and in some of them the principle is thoroughly discussed. Chase v. Dwinal, 7 Greenl. 134. Harmony v. Bingham, 2 Kernan, 99. Maxwell v. Griswold, 10 How. 242. Cobb v. Charter, 32 Conn. 358. In James v. Roberts, 18 Ohio, 548, the court enjoined a party from enforcing the collection of a note which he had induced the plaintiff to give by threats of a groundless prosecution. Evans v. Huey, 1 Bay, 13, was an action on a note. The plaintiff went to the defendant’s house in the night, with a party of armed men, and insisted on the defendant’s settling and giving him the note. - There was no threat or duress, but the court held that, as the circumstances were sufficient to awaken his apprehensions, it was not to be regarded as a voluntary payment.

In the two cases last cited, the principle was enforced by protecting the injured party against a suit.

The cases in regard to the recovery back of money which naa been wrongfully obtained are very numerous. Many of them are collected in the notes to Marriot v. Hampton, 2 Smith Lead. Cas. (6th Am. ed.) 453. There is a large class of cases in which it cannot be recovered back, like Marriot v. Hampton, and like Benson v. Monroe, 7 Cush. 125. In the latter case, the defendant had made a claim in good faith, under a statute which he believed to be valid. The plaintiff had preferred to settle and pay it, rather than litigate the matter further. It turned out, by the decision in a subsequent case, that if he had carried the case to the supreme court of the United States he would have prevailed on the ground that the statute was unconstitutional. But neither this, nor any of the other cases, gives any countenance to the idea that money can be obtained by fraud or oppression, and with knowledge that the claim is unfounded, without exposing the party obtaining it to an action.

Without undertaking to lay down a precise rule applicable to all cases, we think it clear that the principle which is established by all the authorities cited above, whether they are actions of tort for disturbing a man in the exercise of his rights and privileges, or to recover back money tortiously obtained, extends to a case like the present. We have no doubt that a conspiracy against a mechanic, who is under the necessity of employing workmen in order to carry on his business, to obtain a sum of, money from him, which he is under no legal liability to pay, by inducing his workmen to leave him, and by deterring others from entering into his employment, or by threatening to do this, so that he is induced to pay the money demanded, under a reasonable apprehension that he cannot carry on his business without yielding to the illegal demand, is an illegal, if not a criminal, conspiracy; that the acts done under it are illegal; and that the money thua obtained may be recovered back. and. if the parties succeed in injuring Ms business, they are liable to pay all the damage thus done to him. It is a species of annoyance and extortion which the common law has never tolerated.

TMs principle does not interfere with the freedom of business, but protects it. Every man has a right to determine what branch of business he will pursue, and to make his own contracts with whom he pleases and on the best terms he can. He may change from one occupation to another, and pursue as many different occupations as he pleases, and competition in business is lawful. He may refuse to deal with any man or class of men. And it is no crime for any number of persons, without an unlawful object in view, to associate themselves together and agree that they will not work for or deal with certain men or classes of men, or work under a certain price, or without certain conditions. Commonwealth v. Hunt, 4 Met. 111, cited above. Boston Glass Manufactory v. Binney, 4 Pick. 425. Bowen v. Matheson, 14 Allen, 499.

TMs freedom of labor and business has not always existed. When our ancestors came here, many branches of labor and business were hampered by legal restrictions created by English statutes ; and it was a long time before the eommumty fully understood the importance of freedom in tMs respect. Some of our early legislation is of tMs character. One of the colonial acts, entitled “ An act against oppression,” pumshed by fine and imprisonment such indisposed persons as may take the liberty to oppress and wrong their neighbors by taking excessive wages for their work, or unreasonable prices for merchandises or other necessary commodities as may pass from man to man. Anc. Chart. 172. Another required artificers, or handicraftmen meet to labor, to work by the day for their neighbors, in mowing, reaping of corn and the inning thereof. Ib. 210. Another act regulated the price of bread. Ib. 752. Some of our town records show that, under the power to make by-laws, the towns fixed the prices of labor, provisions and several articles of merchandise, as late as the time of the Revolutionary War. But experience and increasing intelligence led to the abolition of all such restrictions, and to the establishment of freedom for all branches of labor and business ; and all persons who have been born and educated here, and are obliged to begin life without property, know that freedom to choose their own occupation and to make their own contracts not only elevates their condition, but secures to skill and industry and economy their appropriate advantages.

Freedom is the policy of this country. But freedom does not imply a right in one person, either alone or in combination with others, to disturb or annoy another, either directly or indirectly, in his lawful business or occupation, or to threaten him with annoyance or injury, for the sake of compelling him to buy his peace; or, in the language of the statute cited above, “with intent to extort money or any pecuniary advantage whatever, or to compel him to do any act against his will.” The acts alleged and proved in this case are peculiarly offensive to the free principles which prevail in this country; and if such practices could enjoy impunity, they would tend to establish a tyranny of irresponsible persons over labor and mechanical business which would be extremely injurious to both. Exceptions sustained.

After this decision, the case was settled by the parties, without another trial.