of the local union and by that fact from membership in the United Hatters.

September 21, 1909, he went to his work as usual. The employees in the shop refused to work if he continued to be employed, left their work, and threatened to strike if he remained at his work. The defendant Connolly, who was not employed in the shop, appeared upon the scene shortly after the suspension of work, and he and the defendant Neese were present and participated in some way in what then transpired. The defendant thereupon left the shop and did not return again until some days later. When he returned and attempted to go to work, there was a protest

dered a strike, and all the union men quit work in all the shops of these manufacturers throughout the country. From that date to June 9, 1909, no work was done in any of the shops whose managers had taken this position. At the latter date the manufacturers in Danbury and vicinity, acting in concert, came to an agreement with the United Hatters by which the strike as to them was settled. This agreement bound the manufacturers to resume the use of the union label on September 21, 1909, and to thereafter employ none but union labor. All the shops in Danbury and vicinity, save the two independent ones already referred to, and including that of the Hawes Von Gal Company, joined in this concerted from those employed, and the threats to action, and were parties to this agreement. As a concession to the manufacturers, for reasons which need not be stated, it was agreed to postpone the date when the agreement should go into effect to that named; but it was agreed that the union employees should return to work at once, and remain at work until the postponed date in their respective shops as open shops not using the label.

strike if he was permitted to go to work were renewed, and he was not allowed to do

So.

The parties were not in accord as to whether he was formally discharged on September 21st, or on the date of his later appearance. But there was no dispute that he was discharged upon the one day or the other, and that he has never since been employed by the Von Gal Company.

The plaintiff claimed to have proved that, following his discharge, he made every effort to find remunerative employment in Danbury and vicinity, but without success; that he began to work in one of the two that work that he could not eorn reasonable independent shops, but was so unsuited to compensation thereat and that he was finally compelled to leave Danbury and seek employment elsewhere, which he did.

The plaintiff offered evidence tending to show direct participation by the defendants Connolly and Neese in the events which led up to his discharge, their leadership in the demands and threats made, and their representation or the defendant union and union employees in what was done on and subsequent to September 21st. The defendants offered evidence to disprove such participation, leadership, and representation.

The plaintiff was a skilled maker of handmade hats, and accustomed to work in making stiff hats, and he was especially well adapted, by his training and physical strength, for that class of work. He had for many years been a member of the defendant local union. He was employed by the Von Gal Company at the time the strike was ordered, in January, 1909. He obeyed the order and quit work, and remained out of employment until the strikers were or dered back to work in June. He continued to work for the Von Gal Company from that time until September 21, 1909, when the agreement between the United Hatters and manufacturers, already recited, went into effect. Pursuant to the by-laws of the United Hatters, he was entitled to strike benefits of $7 a week, covering the period of the strike, of which amount a consider- The defendants offered a large amount of able sum remained unpaid. After his re- testimony concerning the history of union turn to work demands were made of him labor in Danbury, the development of the by the defendant Connolly, secretary and hat industry in that community, the effect treasurer of the defendant local, and its dis- of unionism upon that industry and upon burser of benefits, and by the defendant the conditions and wages of those employed Neese, the plaintiff's fellow workman and in it, the social conditions of the city and collector of assessments in said shop, for the its prosperity and progress, all designed to payment of an assessment levied by the na-establish that the results of the union contional association, as provided in its consti- ditions there, past and present, had been tution. He refused to comply with these beneficial, and not harmful. demands, upon the ground that a larger sum was due him for strike benefits. Following these refusals he was, without notice or opportunity to be heard, immediately prior to September 21, 1909, dropped from the rolls

The parties offered evidence to prove a variety of other facts, which, except as they are stated in the opinion, need not be recited, as they do not concern its discussions or conclusion.

Messrs. Walter Gordon Merritt and | Am. St. Rep. 330, 57 N. E. 1011; Curran v. Charles Welles Gross, with Mr. Wil-Galen, 152 N. Y. 33, 37 L.R.A. 802, 57 Am. liam A. Redden, for appellant: St. Rep. 496, 46 N. E. 297; McCord v.

The injury done the plaintiff by the de- Thompson-Starrett Co. 129 App. Div. 130, fendants constitutes a prima facie wrong requiring the defendants to respond in damages unless they can prove some legal justification therefor.

113 N. Y. Supp. 385, 198 N. Y. 587, 92 N. E. 1090; Schwarcz v. International Ladies' Garment Workers' Union, 68 Misc. 528, 124 N Y. Supp. 968; A. R. Barnes & Co. v. Aikens v. Wisconsin, 195 U. S. 204, 49 Berry, 156 Fed. 72; Giblan v. National L. ed. 159, 25 Sup. Ct. Rep. 3; Berry v. Amalgamated Labourers' Union, [1903] 2 K. Donovan, 188 Mass. 353, 5 L.R.A. (N.S.) B. 606, 1 B. R. C. 528, 72 L. J. K. B. N. S. 899, 108 Am. St. Rep. 499, 74 N. E. 603, 3 907, 89 L. T. N. S. 386, 19 Times L. R. 708; Ann. Cas. 738; Folsom v. Lewis, 208 Mass. Delaware, L. & W. R. Co. v. Switchmen's 336, 35 L.R.A. (N.S.) 787, 94 N. E. 316; | Union, 158 Fed. 545; Levin v. Cosgrove, 75 Brennan v. United Hatters, 73 N. J. L. N. J. L. 344, 67 Atl. 1070; Ruddy v. United 729, 9 L.R.A. (N.S.) 254, 118 Am. St. Rep. Asso. 79 N. J. L. 467, 75 Atl. 743; O'Brien 727, 65 Atl. 171, 9 Ann. Cas. 698; Huskie v. Musical Mut. Protective & Benev. Union, v. Griffin, 75 N. H. 345, 27 L.R.A. (N.S.) 64 N. J. Eq. 525, 54 Atl. 150; Brennan v. 966, 139 Am. St. Rep. 718, 74 Atl. 595; United Hatters, 73 N. J. L. 729, 9 L.R.A. Moran v. Dunphy, 177 Mass. 485, 52 L.R.A. (N.S.) 254, 118 Am. St. Rep. 727, 9 Ann. Cas. 115, 83 Am. St. Rep. 289, 59 N. E. 125; 698, 65 Atl. 166; Lucke v. Clothing Cutters' West Virginia Transp. Co. v. Standard Oil & T. Assembly, 77 Md. 396, 19 L.R.A. 408, 39 Co. 50 W. Va. 611, 56 L.R.A. 804, 88 Am. Am. St. Rep. 421, 26 Atl. 505; Erdman v. St. Rep. 895, 40 S. E. 591; Lucke v. Cloth- Mitchell, 207 Pa. 79, 63 L.R.A. 539, 99 Am. ing Cutters' & T. Assembly, 77 Md. 396, 19 St. Rep. 783, 56 Atl. 327; Live-Stock DealL.R.A. 408, 39 Am. St. Rep. 421, 26 Atl. 505; esr' & B. Asso.. v. Crescent City L. S. L. & London Guarantee & Acci. Co. v. Horn, 206 S. H. Co. 1 Abb. (U. S.) 398, Fed. Cas. No. Ill. 493, 99 Am. St. Rep. 185, 69 N. E. 529; 8,408; Slaughter-House Cases, 16 Wall. 36, Montgomery Ward & Co. v. South Dakota 21 L. ed. 394; Butchers' Union S. H., & L. Retail Merchants' Hardware & Dealers' S. L. Co. v. Crescent City L. S. L. & S. H. Asso. 150 Fed. 413; Evenson v. Spaulding, Co. 111 U. S. 757, 28 L. ed. 591, 4 Sup. Ct. 9 L.R.A. (N.S.) 904, 82 C. C. A. 263, 150 Rep. 652; Adair v. United States, 208 U. S. Fed. 517; Joyce v. Great Northern R. Co. 161, 52 L. ed. 436, 28 Sup. Ct. Rep. 277, 13 100 Minn. 225, 8 L.R.A. (N.S.) 756, 110 Ann. Cas. 764; Lochner v. New York, 198 N. W. 975; Graham v. St. Charles Street U. S. 45, 49 L. ed. 937, 25 Sup. Ct. Rep. 539, R. Co. 47 La. Ann. 1656, 49 Am. St. Rep. 3 Ann. Cas. 1133; Holden v. Hardy, 169 U. 436, 18 So. 707; Arthur v. Oakes, 25 L.R.A.| S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383; 414, 4 Inters. Com. Rep. 744, 11 C. C. A. 209, 24 U. S. App. 239, 63 Fed. 310, 9 Am. Crim. Rep. 169; State v. Glidden, 55 Conn. 47, 3 Am. St. Rep. 23, 8 Atl. 890; Tuttle v. Buck, 107 Minn. 145, 22 L.R.A. (N.S.) 599, 131 Am. St. Rep. 446, 119 N. W. 946, 16 Ann. Cas. 807; Chipley v. Atkinson, 23 Fla. 206, 11 Am. St. Rep. 367, 1 So. 934. See Wrongful Motive in Tort Cases, 18 Harvard, L. Rev. 412.

The agreements between the hat manufacturers of Danbury and vicinity and the unions, providing for the employment of union persons exclusively in all depart. ments, are illegal and against public policy, and afford no justification for the conduct of the defendants in bringing about the discharge of the plaintiff.

Wyeman v. Deady, 79 Conn. 414, 118 Am. St. Rep. 152, 65 Atl. 129, 8 Ann. Cas. 375; State v. Stockford, 77 Conn. 227, 107 Am. St. Rep. 28, 58 Atl. 769; Berry v. Donovan, 188 Mass. 353, 5 L.R.A. (N.S.) 899, 108 Am. St. Rep. 499, 74 N. E. 603, 3 Ann. Cas. 738; Folsom v. Lewis, 208 Mass. 336, 35 L.R.A. (N.S.) 787, 94 N. E. 316; Plant v. Woods, 176 Mass. 492, 51 L.R.A. 339, 79

State v. Haun, 61 Kan. 146, 47 L.R.A. 369, 59 Pac. 340; Oregon Steam Nav. Co. v. Winsor, 20 Wall. 64, 22 L. ed. 315; Gibbs v. Consolidated Gas Co. 130 U. S. 408, 32 L. ed. 984, 9 Sup. Ct. Rep. 553; Hilton v. Eckersley, 6 El. & Bl. 47, 25 L. J. Q. B. N. S. 199, 2 Jur. N. S. 587, 4 Week. Rep. 326; Callan v. Wilson, 127 U. S. 540, 32 L. ed. 223, 8 Sup. Ct. Rep. 1301; Carter v. Oster, 134 Mo. App. 146, 112 S. W. 997; State v. Donaldson, 32 N. J. L. 151, 90 Am. Dec. 649; State v. Dyer, 67 Vt. 691, 32 Atl. 814, 10 Am. Crim. Rep. 227; United States v. Weber, 114 Fed. 953; 18 Harvard L. Rev. 444; Froelich v. Musicians' Mut. Ben. Asso. 93 Mo. App. 390; Conway v. Wade [1908] 2 K. B. 844, 78 L. J. K. B. N. S. 14, 99 L. T. N. S. 634, 24 Times L. R. 874, 52 Sol. Jo. 748, [1909] A. C. 508; Chipley v. Atkinson, 23 Fla. 206, 11 Am. St. Rep. 367, 1 So. 934; Hanson v. Innis, 211 Mass. 301, 97 N. E. 756; Huskie v. Griffin, 75 N. H. 345, 27 L.R.A. (N.S.) 966, 139 Am. St. Rep. 718, 74 Atl. 595; Gibson v. Fidelity & C. Co. 232 Ill. 49, 83 N. E. 539; London Guarantee & Acci. Co. v. Horn, 206 Ill. 507, 99 Am. St. Rep. 185, 69 N. E. 526; Jones v. Leslie,

61 Wash. 107, L.R.A. (N.S.) 112 Pac. | Am. St. Rep. 477, 97 N. W. 663, 1118, 1 82, Ann. Cas. 1912 B, 1158; Joyce v. Great Ann. Cas. 172; Boasberg v. Walker, 111 Minn. 445, 127 N. W. 467; Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. 759, 53 Atl. 230.

Northern R. Co. 100 Minn. 225, 8 L.R.A. (N.S.) 756, 110 N. W. 975; Moran v. Dunphy, 177 Mass. 485, 52 L.R.A. 115, 83 Am. St. Rep. 289, 59 N. E. 125; New York, C. & St. L. R. Co. v. Schaffer, 65 Ohio St. 414, 62 L.R.A. 931, 87 Am. St. Rep. 628, 62 N. E. 1036; Perkins v. Pendleton, 90 Me. 166, 60 Am. St. Rep. 252, 38 Atl. 96; Lawlor v. Merritt, 78 Conn. 630, 63 Atl. 639.

A party in default under a mutual and dependent covenant cannot, while in default, discharge himself from said contract on account of the subsequent default of the other party. By his own previous default, he disables himself from enforcing any rights under the contract, or from canceling, rescinding, or discharging the contract.

Bean v. Atwater, 4 Conn. 13, 10 Am. Dec. 91; Hammond v. Gilmore, 14 Conn. 479; Smith v. Lewis, 24 Conn. 626, 63 Am. Dec. 180; 39 Cyc. 1375; Bank of Columbia v. Hagner, 1 Pet. 455, 7 L. ed. 219; Frink v. Thomas, 20 Or. 265, 12 L.R.A. 239, 25 Pac. 717; Getty v. Peters, 82 Mich. 661, 10 L.R.A. 465, 46 N. W. 1036; Page, Contr. § 1454; Reddish v. Smith, 10 Wash. 178, 45 Am. St. Rep. 781, 38 Pac. 1003; 2 Parsons, Contr. 829-831; Tipton v. Feitner, 20 N. Y. 425; Peoples' Bank v. Mitchell, 73 N. Y. 406.

The question whether the trade agreement to employ union men exclusively was contrary to public policy is for the court.

Freedman v. New York, N. H. & H. R. Co. 81 Conn. 614, 71 Atl. 901, 15 Ann. Cas. 464; Cummings v. Union Blue Stone Co. 15 App. Div. 602, 44 N. Y. Supp. 787, affirmed in 164 N. Y. 401, 52 L.R.A. 262, 79 Am. St. Rep. 655, 58 N. E. 525; Greenhood, Pub. Pol. 123; Pierce v. Randolph, 12 Tex. 290; De Minico v. Craig, 207 Mass. 593, 42 L.R.A. (N.S.) 1048, 94 N. E. 317.

union men

The label of a trade union is entitled to the same protection in law as the trademark or trade-dress of a manufacturer against unlawful use.

Tracy v. Banker, 170 Mass. 266, 39 L.R.A. 508, 49 N. E. 308; Beebe v. Tolerton & S. Co. 117 Iowa, 593, 91 N. W. 905; Cohn v. People, 149 Ill. 486, 23 L.R.A. 821, 11 Am. St. Rep. 304, 37 N. E. 60; Schmalz v. Wooley, 57 N. J. Eq. 303, 43 L.R.A. 86, 73 Am. St. Rep. 637, 41 Atl. 939; People v. Dantuma, 252 Ill. 566, 39 L.R.A. (N.S.) 1190, 96 N. E. 1087, Ann. Cas. 1912 D, 370.

Combinations and agreements in restraint of trade or employment, by either capital or labor, are not violative of public policy, provided the object of the combine is not malevolent, and the restraint is reasonable.

State v. Stockford, 77 Conn. 227, 107 Am. St. Rep. 28, 58 Atl. 769; Curran v. Galen, 152 N. Y. 33, 37 L.R.A. 802, 57 Am. St. Rep. 496, 46 N. E. 297; Jacobs v. Cohen, 183 N. Y. 207, 2 L.R.A. (N.S.) 292, 111 Am. St. Rep. 730, 76 N. E. 5, 5 Ann. Cas. 280; 2 Purdy's Beach, Priv. Corp. §§ 939, 940, pp. 1421-1423; Erle, Trade Unions, 12; Loewe v. Lawlor, 208 U. S. 295, 52 L. ed. 496, 28 Sup. Ct. Rep. 301, 13 Ann. Cas. 815; Kemp v. Division No. 241, 255 Ill. 213, 99 N. E. 389; Standard Oil Co. v. United States, 221 U. S. 1, 62, 55 L. ed. 619, 645, 34 L.R.A. (N.S.) 834, 31 Sup. Ct. Rep. 502, Ann. Cas. 1912 D, 734; United States v. Terminal R. Asso. 224 U. S. 394, 56 L. ed. 813, 32 Sup. Ct. Rep. 507; Minasian v. Osborne, 210 Mass. 250, 37 L.R.A. (N.S.) 179, 96 N. E. 1036, Ann. Cas. 1912 C, 1299.

Prentice, Ch. J., delivered the opinion of the court:

Mr. H. W. Taylor, for appellees: Trade unions are lawful associates, and union men may refuse to work with, or con- The defendants are charged with having, tinue in employment with nonunion men, through their action in wrongful combinaand may lawfully quit employment, if non- tion, been the cause of the plaintiff's disare not discharged, or agree-charge from his employment for hire at ments made for the employment of union his trade as a hat maker. The undisputed men only, provided such action of union facts shows that he was discharged, and that men is not malevolent, but is for the pur- the discharge was the direct consequence of poses of bettering their own condition. his having been dropped from the roll of State v. Stockford, 77 Conn. 236, 107 Am. membership of the defendant local union St. Rep. 28, 58 Atl. 769; Joyce, Monopolies, and from the national body to which it be§ 513; Minasian v. Osborne, 210 Mass. 250, longed, and of the existence of an agreement 37 L.R.A. (N.S.) 179, 96 N. E. 1036, Ann. between that national body, representing Cas. 1912 C, 1299; Jacobs v. Cohen, 183 the defendant union and its affiliated unions, N. Y. 207, 2 L.R.A. (N.S.) 292, 111 Am. St. and his employer, requiring his discharge if Rep. 730, 76 N. E. 5, 5 Ann. Cas. 280; Na- a nonunion man, and of the insistence of his tional Protective Asso. v. Cumming, 170 fellow employees, members of the union and N. Y. 315, 58 L.R.A. 135, 88 Am. St. Rep. an affiliated union, that the agreement be 648, 63 N. E. 369; Gray v. Building Trades | kept, and their threat to strike if it was not Council, 91 Minn. 183, 63 L.R.A. 753, 103 'kept.

The pleadings and evidence presented for decision several prominent issues, to wit: (1) As to the participation and responsibility of the several defendants in and for the acts and things complained of; (2) as to the lawfulness of these acts and things; and (3) as to the legality of the plaintiff's dismissal from the union. We are asked to review the instructions of the court respecting the last two aspects of the case, which would have assumed large importance if the jury should have found, as it might upon the evidence as indicated by the facts claimed to have been proved, that the defendants participated in a combination to do the acts and things charged.

others. The perpetual struggles of life for individual or class betterment and advancement involve at every turn clashes of interests, whose outcome is quite likely to bring loss or harm to someone. Competition is one of the ever-present facts in human experience on its material side. But competition naturally involves the success of one or some to the disadvantage of another or others. The law recognizes that human activities are not to be so circumscribed that one may not, in his efforts to advance his own interests, either himself or in co-operation with others, do anything from which another may suffer. National Protective Asso. v. Cumming, 170 N. Y. 315, 335, 58 The undisputed facts disclose that the L.R.A. 135, 88 Am. St. Rep. 648, 63 N. E. plaintiff suffered damage in the loss of his 369. But it does recognize that certain employment, and that this damage was in- bounds must be set to the use of means, betentionally caused. These facts shown, a yond which he and his associates may not prima facie cause of action was made out be permitted to go, if a decent regard for against those who, thus acting with intent, the rights of others is to be preserved and caused the damage. Recovery, however, the public welfare conserved. It recognizes might be defeated by the establishment by the peculiar necessity for the establishment these persons of a justification; the burden of such bounds where the action is that of being upon them to do so. Aikens v. Wis- individuals in combination, by reason of the consin, 195 U. S. 204, 49 L. ed. 159, 25 Sup. Ct. Rep. 3; Martell v. White, 185 Mass. 255, 258, 64 L.R.A. 260, 102 Am. St. Rep. 341, 69 N. E. 1085; Berry v. Donovan, 188 Mass. 353, 356, 5 L.R.A. (N.S.) 899, 108 Am. St. Rep. 499, 74 N. E. 603, 3 Ann. Cas. 738; Lucke v. Clothing Cutters' & T. Assembly, 77 Md. 396, 405, 19 L.R.A. 408, 39 Am. St. Rep. 421, 26 Atl. 505; Mogul, S. S. Co. v. McGregor, L. R. 23 Q. B. Div. 598, 613.

great power which may result from such combination, and the temptation to use that power in disregard to the rights of persons outside of them. Mogul S. S. Co. v. McGregor, 23 Q. B. Div. 598, 618; Martell v. White, 185 Mass. 255, 260, 64 L.R.A. 260, 102 Am. St. Rep. 341, 69 N. E. 1085.

One of the bounds thus fixed, where, as here, concerted action by combinations is concerned, is that the harm inflicted be The defendants presented, and strenuous- reasonably referable to the alleged object ly urged in justification for what was done, of lawful gain or advantage; that the resulting in the plaintiff's loss of employ-means employed be adopted in good faith ment, that it was all directed solely to the for the attainment of that object; and that betterment of their condition as workingmen their employment be not prompted by perengaged in securing a livelihood for them-sonal ill-will, desire to injure, or express selves and those dependent upon them malice of any sort. In the present case through the medium of their trade. Such a the defendants claim to have established a purpose is, of course, a worthy, and there- strict compliance with this condition, and fore not an unlawful, one. that may be assumed.

There remains for consideration the character of the means employed. Were they such as the law will approve, or such as it must condemn?

The law, in the interest of fair play and general public welfare, does not stop here. It demands that the means employed in the effort to secure the laudable or lawful end These means resulted, as we have seen, in be of themselves not unlawful. They may causing the plaintiff to suffer loss of employ-be unlawful as being in contravention of ment. They were not, however, for that statutory prohibition, or in the absence of cause alone unlawful; and the fact that such prohibition. they were adopted and put into operation by a number of persons acting in combination did not suffice to make them so. The members of the defendant union were acting within their rights when they combined for concerted action. They were entitled to advance their interests in that way, and their efforts in combination were not illegal for the mere reason that they may have resulted in harm to the conflicting interests of

The defendants contend that the test to be applied for the determination of lawfulness or unlawfulness of means, where there is no statutory enactment, is their reasonableness or unreasonableness. The trial court seems to have held the same view. For the purposes of this case, we have no occasion to give authoritative approval to this or any other test as one of general and comprehensive application. It is manifest that

those means must be regarded as both un- | 353, 5 L.R.A. (N.S.) 899, 108 Am. St. Rep. reasonable and unlawful which are contrary 499, 74 N. E. 603, 3 Ann. Cas. 738; A. R. to public policy, and this proposition is sullicient for our guidance in the situation before us. We may well, therefore, pursue our inquiry along the narrow lines, most favorable to the defendants, of public policy. By this course we may be saved the necessity of discussing the mooted question whether "unreasonable" in this connection comprehends anything more than what is opposed to public policy. It certainly comprehends that, and we shall do no harm to the defendants' interests by bringing their conduct to this test.