EDITORIAL DEPARTMENT

or by several acting in concert, and whether by direct action against him or indirectly by inducing a third person to exercise a lawful right, is a tort unless there was just cause for inflicting the damage; and the question whether there was or was not just cause will depend, in many cases, but not in all, upon the motive of the actor. The motive to an act being the ultimate purpose of the actor is rightful if that purpose be the benefit of others or of himself, wrongful if the purpose be damage to another." In conclusion he says: "The dictum that our law never regards mo tive as an element in a civil wrong is as far from the truth as would be the statement that malevolently to damage another is always a tort. The truth lies in the middle; In certain cases, in spite of the wrongful motive of the actor, malevolently to damage another is lawful, either because the act is merely the exercise of an absolute legal right, or because it is justified by paramount considerations of public policy. Except in such cases, how ever, wilfully to damage another by a posi tive act and from a spirit of malevolence is a tort, even though the same act, if induced by a rightful motive, would be lawful." TORTS

(Motive. Interference with Contracts)

"Interferences with Contracts and Busi ness in New York" is the title of an article by E. W. Huffcut in the April Harvard Law Review (V. xviii, p. 423), in which he also discusses the element of motive in torts. "Intentionally to produce any of the above results and consequent damages by the use of unlawful means, is itself unlawful whatever the motive. Intentionally to produce any of the above results and consequent damages by the use of lawful means, is probably un lawful if the motive be unjustifiable, but is certainly lawful if the motive be justifiable. In New York no distinction is to be made between contracts of service and other con tracts, or between inducing the breach of contracts and inducing the termination or non-formation of them. The only doubt that may be said to exist in this respect is as to whether the enticement of servants stands on any different footing from the interference with the performance of other contracts."

It is unlawful to induce a breach of con tract by unlawful means. "Assuming a jus tifiable motive (if that be necessary), it is not unlawful by persuasion, argument, and entreaty, accompanied by picketing, patrol ling, or spying, to induce a breach of contract or the termination or non-formation of con tract. Assuming a justifiable motive (if that be necessary), it is not unlawful to refuse to work with another, or to notify the common master of that fact, or to threaten to quit if that other is retained in the employment; and if as a consequence the obnoxious work man is discharged or fails to obtain employ ment, he has no action for the damages caused thereby. Nor is it unlawful to refuse to deal with one who refuses to join in a lawful agree ment as to the conduct of a particular busi ness or who fails to keep such agreement; nor is it unlawful to notify the other members of the association of such non-agreement or violation of agreement." Of the importance of motive he says: "It is difficult to escape the conclusion that, while the matter is by no means settled, the trend of opinion, and especially in the appeal courts, is decidedly toward making the question of motive or purpose a material one. But it is probable that the doctrine that 'intentionally inflicting harm upon another is actionable, unless it is justified," does not mean in New York that the actor is put to his justification where he has used no unlawful means, but that where only means not unlawful per se are used the result is presumably lawful, and this presumption can be overcome only by proof of an unjustifiable motive. In other words, there is presumptively a privilege to employ any lawful means in social or indus trial relations; argument, persuasion, and entreaty are lawful means; and the general and common privilege to employ these can be overcome only by showing that they are employed for an unjustifiable end, that is, an end which intentional!}' inflicts a damage upon a particular individual without a cor responding and compensating advantage to the one who inflicts it or to those whom he represents." "Motive, therefore, in the sense in which that term is here used, must continue to be an important element in the decision of cases dealing with the interference with contracts