Anderson v. East Oregon Lumber Co. ( 1922 )

HARRIS, J.,

Dissenting.—I am unable to agree with the conclusion that “the plaintiff might recover as the representative of that combination, bnt not otherwise.”

This is the situation disclosed by the record: G-eorge S. Anderson, Daniel Sword and four others entered into the written agreement quoted in the majority opinion. Under the terms of that agreement Anderson and his associates contracted to pile, for a specified price per thousand feet, all the lumber manufactured by the defendant from February 1, 1921, to January 1, 1922. Anderson, Sword and their four associates piled lumber until April 16, 1921, when Anderson and Sword ceased to work. On the following Monday, April 18th, two new men appeared on the job, stepped into the shoes of Anderson and Sword, and, with the four pilers, continued to work until January 1, 1922, the date of the expiration of the written agreement.

During the period when Anderson and Sword worked, pay checks were delivered to each of the six men twice every month. Each man was paid one sixth of the total amount earned by all. The same practice was followed from April 18, 1921, to January 21, 1922, and each of the six pilers, including the two new men, was twice each month paid one sixth of the total earnings of the six. The combination, including Anderson and Sword,. were paid all that was earned by them up to April 16th; and the six men who did the piling from April 18th to January 1st following were paid all that was earned by them.

It is not claimed by anyone that the combination either as it existed until April 16th or as it existed after that date was damaged in the slightest, but, on the contrary, it is impliedly conceded that the combination as such has not been damaged. Consequently, if Anderson and Sword are remediless, it is utterly futile to remaud tire case for further proceedings. The two new men appeared on the job in response to telegrams, one man coming from Idaho and the other from the State of Washington. Both were experienced pilers. It is impliedly admitted, and it is probably true, that the combination as it existed after April 16th piled the lumber as expeditiously and as cheaply as had been done by the old combination. It is quite likely that the work did not cost a particle more in time or in labor under the hew combination than under the old, with the.result that the combination as such was not damaged by reason of the discharge of Anderson and Sword; and yet it does not require much imagination to conceive of a situation where Anderson and Sword each suffered substantial injury because of having been prevented from working. Anderson and Sword claim that the defendant compelled them to quit and hired the two new men to take their places. The defendant claims that the other four pilers compelled Anderson and Sword to quit and that they brought the two new men into the combination. If the position taken by the defendant is correct, then of course the defendant is not liable; but if the claim made by Anderson and Sword is true and Anderson has suffered any substantial damage peculiar to him as a single individual, then as such individual, he ought to have a remedy for that damage.

The doctrine that a right may belong to two or more individuals severally, but not to two or more jointly and severally, although it may belong to two or more jointly, must be conceded. If the defendant had absolutely refused to permit any lumber to be piled, or if it had permitted only a portion to be piled, then the conduct of the defendant would have produced a breach of the contract thus conferring, it may be assumed, a joint and not a several right. In the instant case, however, the defendant was willing that the lumber should be piled, but, according to the contention of the plaintiff, the defendant was not willing that the plaintiff should be one of the pilers. The plaintiff’s right to work was, it is true, created by the written contract made with the defendant; and so in the very nature of things it became necessary for the plaintiff to plead the contract in order to show the existence of his right, just as it would have been necessary for him to have pleaded the contract in order to show the existence of his right if he had been suing a third person for interference with that right. Now, if by the wrongful act of the defendant the plaintiff was prevented from exercising his right and suffered substantial damages peculiar to him alone and not suffered by the combination, he ought to have a remedy for it just as he certainly would have a remedy if a third person had by force prevented him from working.

Mr. Justice Bean concurs in this dissent.