McCarter v. Baltimore Chamber of Commerce

The only question in this appeal is one of pleading, and involves only the sufficiency of the averments of the amended declaration. A demurrer was interposed by the defendant, and upon it being sustained and judgment entered for the defendant for costs, this appeal was taken from that judgment. It will be necessary for a determination of the question to set out quite fully the allegations of the declaration.

It avers that the Baltimore Chamber of Commerce, the appellee, was a corporation, and had extant on the 10th day of February, 1913, and on the day of the filing of this suit, the following section of its charter:

"Section 5. And be it enacted, that the purposes of said corporation shall be to provide and regulate a suitable room or rooms for a produce exchange in the City of Baltimore; to inculcate just and equitable principles of trade; to establish and maintain uniformity in commercial usage; to acquire, preserve and disseminate valuable business information; and to adjust controversies and misunderstandings between its members and themselves or between them and other persons thereto consenting, which may arise in the course of business."

There is also set out in full section 6 of Article 9 of the By-Laws of the corporation, prescribing the duties of the Executive Committee. There was also in effect the third paragraph of section 11 of Article 9 of the By-Laws, and which was as follows:

"Third — Any corporation, joint stock company, firm or individual not a member of the Baltimore Chamber of Commerce, who shall be accused of any proceedings inconsistent with just and equitable principles of trade, in relation to a transaction had through or with any member of the Baltimore Chamber of Commerce, shall on complaint be summoned before the Complaint Committee and given an opportunity to be heard. Should the Committee be unable to induce a settlement, and the circumstances shall seem to the Committee to warrant, the complaint and all proceedings thereunder shall be referred by the Committee to the Board of Directors, who shall consider the evidence produced before the Complaint Committee, and give both plaintiff and defendant an opportunity to be heard again, and to produce additional evidence at such hearing if either shall so desire, prior to final action in the case; and if, in the opinion of the Board, the charge or charges against said defendant be substantiated, it may, by a vote of not less than two-thirds of all the members present, prohibit said defendant representation on the floor of the Chamber, and any member of the Chamber who shall with knowledge of such prohibition represent or transact business with or on behalf of said defendant, after notice of such prohibition shall have been posted on the bulletin during five days, shall be deemed guilty of wilful violation of the By-Laws, and subject to the penalties prescribed in section 5 of Article 7, and such member shall be proceeded against in accordance with the By-Laws for such violation. All complaints under this section shall be in writing and addressed to the Chairman of the Complaint Committee, who shall cause the same to be served on the defendant, with notice of the time of hearing."

It is then averred that "because the plaintiff was indebted unto one of the members of the said corporation in the sum of eighty dollars, which was a balance due on a note which was being gradually liquidated by the plaintiff" the corporation caused to be posted the following notice:

"Robert McCarter, Reisterstown, Maryland. The attention of members is called to Article 9, § 11, paragraph 3 of the By-Laws. This rule will be strictly enforced."

It is then further averred as follows: "And for a long time prior to the date of the promulgation of the aforesaid notice on the 10th of February, 1913, and as of the date of the filing thereof on the 10th day of February, 1913, and since that date, the plaintiff was employed by certain members of this defendant corporation, and the said defendant corporation, through its officials, agents and employees, on or about the 19th of August, 1913, in accordance with the aforesaid sections of the Charter and By-Laws hereinbefore set forth, cited John M. Frisch and Company, H.C. Jones and Company, G.A. Hax and Company and Sinton Brothers and Company, by whom the plaintiff was employed prior to the 10th of February, 1913, and the aforesaid firms were directed to discharge from their employ and to cease further dealings with the plaintiff, and that some of said firms did immediately discharge from their employ the plaintiff, and that certain other of said firms did not, and that thereafter the said board of directors and certain members of the said corporation, did, by intimidation and coercion compel the remaining firms to discharge this plaintiff from their employ and cease further dealings with him, by threatening to reprimand, suspend or expel said firms, who were members of said defendant, in accordance with section 5 of Article 7 of the defendant's By-Laws." Said section clothes the board of directors with the power to reprimand, suspend or expel, with the consent of a two-thirds vote of the members, any member who has been guilty of a breach of the rules, regulations or by-laws.

It is then charged that, as a result of the illegal action upon the part of the defendant, the plaintiff has been deprived of his position and employment and has been "blackballed and boycotted" by the members of the corporation and has suffered malicious injury.

Stripped of its legal phraseology the complaint of the plaintiff is merely that while employed by several of the individual members of the corporation and being indebted to another of said members, the corporation compelled his employers to discharge him and abstain from further dealings with him under threats, by virtue of a by-law, of themselves being denied the privileges of membership in the corporation. That the posting of the notice under the by-laws was not sufficient to bring about the severance of the relations between the plaintiff and some of the members, but in order to accomplish that end it was necessary to cite the unwilling members before a committee and direct them to observe the by-law. That even then there were some members who persisted in refusing to comply with the by-law and continued the employment of the plaintiff until they were threatened by the board of directors with a reprimand, suspension or expulsion.

The contention of the appellant is, in the language of his brief: "The defendant in procuring breaches of the plaintiff's terms of employment with its members through the coercive means of threatening such employing members with the pains and penalties of Article 5, § 7, of its By-Laws — which included expulsion from the organization and consequent exclusion from the floor of the Exchange — violated the plaintiff's legal rights without justification and is answerable therefor in Court for damages thus caused the plaintiff."

It will be noticed that the declaration avers no particular nor definite period of time for the termination of the contracts of employment, and, therefore, it is to be assumed that they were terminable at the will or wish of either party without actionable liability upon the part of either. In other words, a case of hiring from day to day. We do not mean to intimate that because of this a third party has the legal right to maliciously interfere so as to terminate an employment, but only to note that it was the legal right of either employer or employee to bring the employment to an end. And when we use the word malicious we use it in its strictly legal meaning. "Malice," said BAYLEY, J., in Bromage v. Prosser, 4 Barb. C. 255, "in common acceptation, means ill will against a person, but in its legal sense it means a wrongful act done intentionally without just cause or excuse." Or as was said in Lucke v. Clothing, etc., Assembly,77 Md. 396. "It is not necessary that such interference should have been malicious in its character. If it be wrongful, it is equally to be condemned, and just as much in violation of legal right."

"Any malicious interference with the business or occupation of another, if followed by damage, is an actionable wrong."Willner v. Silverman, 109 Md. 341. On the other hand: "It is a part of every man's legal rights, that he be left at liberty to refuse business relations with any person whomsoever, whether the refusal rests upon reason, or is the result of whim, caprice, prejudice or malice. Cooley on Torts, 278. "The exercise by one man of his legal right cannot be a legal wrong to another. * * * Whatever one has a legal right to do another can have no right to complain of." Ib. 688. But the argument of the appellant is that this is not a case of one voluntarily refusing to continue business with him, but a case of one, against his will, being forced by threats and intimidations made by a third party, the appellee, to sever those relations. And this brings us, to our minds, to the crucial test of the liability of the appellee; whether the by-law in question was, in law, a coercive threat upon the minds of the members of the appellee corporation. If the posting of the appellant by virtue of it did not so amount, then the fact that the corporation directed certain members to observe it under penalty of the enforcement of its provisions, adds nothing to the claim of the appellant.

The question of whether such a by-law is coercive has given rise to a conflict of the authorities. There have been many cases where associations have had by-laws similar, or practically so, to the one in this case, and in some jurisdictions Courts have held the associations liable to parties injured through their enforcement; while in others the opposite conclusion has been reached. See Bohn Manuf. Co. v. Hollis, 54 Minn. 223; Delz v. Winfree, 6 Tex. Civil App. 11; Brewster v. Miller,101 Ky. 368; Schulten v. Bavarian Brew. Co., 96 Ky. 224;Reynolds v. Plumbers Material Protec. Assn., 63 N.Y. Supp. 303; Jackson v. Stanfield, 137 Ind. 592; Martell v.White, 185 Mass. 255; Boutwell v. Marr, 71 Ver. 1; HeimBrew. Co. v. Belinder, 97 Mo. App. 64.

Of the above cited cases we think it only necessary to review that of Bohn Manuf. Co. v. Hollis, for the reason that in a recent case, Klingel's Pharm. v. Sharpe Dohme, 104 Md. 218, this Court has reviewed the facts and approved the finding of the Minnesota Court. In that case a large number of retail lumber dealers formed a voluntary association by which they mutually agreed that they would not deal with any manufacturer or wholesale dealer who should sell lumber directly to consumers at a place where a number of the association was engaged in the retail business, and they provided in their by-laws that whenever any wholesale dealer or manufacturer made any such sale, their secretary should notify all the members of the fact. The plaintiff made such a sale and the secretary made demand upon him for the penalty prescribed by the by-laws, but the plaintiff delayed so long in the payment of the penalty the secretary threatened to send notices to all the members. By the provisions of the by-law any members who continued dealings with such wholesale dealer was subject to expulsion from the association. The plaintiff applied for an injunction to restrain the sending of the notices, but it was held no action would lie and that there was no ground for an injunction. On the question as to whether the by-law providing for expulsion was coercive the Court said: "But this involved no element of coercion or intimidation, in the legal sense of those terms. * * * Nor was any coercion proposed to be brought to bear on the members of the association, to prevent them from trading with the plaintiff. After they received the notices, they would be at entire liberty to trade with plaintiff, or not, as they saw fit. By the provisions of the by-laws, if they traded with the plaintiff, they were liable to be "expelled;" but this simply meant to cease to be members. It was wholly a matter of their own free choice, which they preferred, to trade with the plaintiff, or to continue members of the association." CHIEF JUDGE McSHERRY in delivering the opinion in Klingel's Pharm. v. Sharp Dohme, supra, approved the opinion in the above case and declared: "There was nothing unlawful in this." Under the authority of those cases there was not such an interference with the rights of the appellant by the appellee corporation as to amount in law to a wrongful and malicious interference for which an action will lie.

We are, therefore, of the opinion that the action of the Court below was correct in sustaining the demurrer, because the declaration avers no act which amounts to an unlawful coercion.

Judgment affirmed, with costs.