every contract of hiring. It is unfair for the defendant to take advantage of knowledge imparted to him in confidence and use that knowledge to destroy plaintiff's business. The defendant furnished an employe of plaintiff's competitor with information of plaintiff's customers for the purpose and which was used by such employe in making deliveries for such competitor, and he claims the right to personally go over the route, call upon each customer of the plaintiff whose name and address had been furnished him for the purpose of plaintiff's business, solicit orders for plaintiff's competitors, take up plaintiff's tradingstamp books from such customers, and issue a trading book of like stamp value to the customer furnished by plaintiff's competitor. If such conduct must be approved and adjudged to be right, proper, and lawful, there would seem to be no limitation upon the gross betrayal of confidence by an unscrupulous employe. 91 In the case of an advertising solicitor Judge Grosscup stated very clearly what the writer conceives to be sound doctrine: "Complainant charges that Mahin has enticed away its clients, and has been procuring them to cancel contracts with the complainant not yet fully performed. As to the first part of this charge, I hold it was within Mahin's right, after the connection ceased, to not only receive, but to solicit, the patronage of these clients. Whether he could rightfully advise them to break existing contracts with complainant is another question."' 92 § 154. Inciting breach of contract as unfair competition.— The general principles of the law of unfair competition extend to those acts, done in competition, which are designed to disturb the contractual relations between employer and employe, or between the plaintiff and a third party. Those principles came into existence long before the broad doctrines of the modern law of unfair competition came into existence. They were established before the day of Blackstone, and were originally developed in cases involving the enticement of the servant, or apprentice, from the master. They were expanded to include cases of inciting breach of the contracts of opera 91-Brown, J., in Witkop & Holmes Co. v. Boyce, 118 N. Y. Supp. 461, 464. 92-Proctor & Collier Co. v. Mahin, 93 Fed. Rep. 875, 876. singers by the leading case of Lumley v. Gye, in 1853,93 and the law governing the subject of incited breach generally was summed up by the late Mr. Justice Brewer as follows: "It has been repeatedly held that, if one maliciously interferes in a contract between two parties and induces one of them to break that contract to the injury of the other, the party injured can maintain an action against the wrongdoer." 94 Since unfair competition became recognized as a distinct division of equity jurisprudence the courts have recognized that the cases of incited breach, where the tortfeasor was in commercial competition with the plaintiff, should be classified as unfair competition cases.95 Obviously, however, when a breach is incited by one who is not a business competitor of the party damaged by the breach, the tort is not of a kind to be considered in this book. As between competitors, the reported cases disclose two general classes of acts done in procuring the breach. The first class of cases involves facts showing no deceit or misrepresentation, but the breach of the existing contract is obtained, or sought to be secured by persuasion or the offering of the same class of goods or service at lower cost, or possibly at the same cost. The knowledge of an existing contract, and the offer to one of the contracting parties of goods or service, the acceptance of which will necessarily induce the breach of that existing contract, has been deemed sufficient to create liability in some instances.96 And in several cases one who has caused the breach of a contract by merely urging it and offering 93-Lumley v. Gye, 2 El. & Bl. 216; 75 E. C. L. 216. 94-Angle v. Chicago, etc., Railway Co., 151 U. S. 1; 38 L. Ed. 55. 95-They are referred to as unfair competition in the following cases: Federal. Citizens' Light, Heat & Power Co. v. Montgomery Light & Water Power Co., 171 Fed. Rep. 553; Sperry & Hutchinson Co. v. Pommer, 199 Fed. Rep. 309, 314; Lewis v. Bloede, 202 Fed. Rep. 7, 24. Massachusetts. Wheeler-Stenzel Co. v. American Window Glass Co., 202 Mass. 471. New York. American Law Book Co. v. Edward 96-Heath v. American Book Co., 97 Fed. Rep. 533; Judge Jackson points out that the school-boards who breached at defendant's mere solicitation could not be recovered against; hence plaintiff, which had undoubtedly sustained damage, would have no remedy unless against the party so inducing the breach. other goods in lieu of those contracted for, has been held liable to the party injured.97 But the better reasoning is that there must be evidence of force, misrepresentation or fraud employed in effecting the breach, or the third party is not liable.98 When such force, misrepresentation or fraud exist the liability of the wrongdoer is well settled. He may be liable also, because of offering to indemnify the breaching party against the consequences of his breach. "The trader who has made a contract with another person has a right, which the law will protect, to have that other keep it. Other traders have a correlative right to solicit the custom to which the contract relates. Whatever damage results to the first trader by the mere solicitation is privileged, so far as the solicitor is concerned, in the interest of proper freedom of competition. Were the law otherwise, the first person occupying the field of public service in many localities, by procuring long contracts to take water, light, and the like from him, might intrench himself in a monopoly there for years, because another thereafter could not solicit customers, thus bound, to change their patronage to him, and thereby enable a rival enterprise to enter the field. The faithful observance of contracts, however, is as essential to the public welfare as the right of competition. Property rights, public and private morality, and liberty itself, are insecure when the law encourages the non-observance of contract obligations. Hence, while the law allows the trader by mere solicitation to persuade customers to change their business relations, it does not permit such a solicitor, even in the interest of competition, son v. Morgan, 49 Ind. App. 376; 94 N. E. Rep. 1021; Kentucky Chambers v. Baldwin, 91 Ky. 121; Bourlier v. Macauley, 91 Ky. 135; 15 S. W. Rep. 60; Missouri. Glencoe Sand & Gravel Co. v. Hudson, 138 Mo. 439; 40 S. W. Rep. 93; New York. Ashley v. Dixon, 48 N. Y. 430; North Carolina. Swain v. Johnson, 151 N. C. 93; 65 S. E. Rep. 619; North Dakota. Sleeper v. Baker, 22 N. D. 386. to go further, intervening actively between the contracting parties, as a dominant agency in producing a breach by promise of indemnity to one of them to induce the breach. When the solicitor knowingly and intentionally goes beyond mere solicitation to induce another man's customer to do business with him, and promises to hold that other man's customer harmless for breach of contract with him, he transcends the rights of the law of competition, has no 'sufficient justification,' and thereby becomes liable to him whose customer is taken over. Such conduct is an unlawful interference with another man's rights, for which he may maintain an action and recover nominal damages, although the contract be not actually breached in consequence of the solicitation."'99 Motion picture first run contracts.-Where a competing exhibitor, with knowledge of plaintiff's exclusive first-run contract, undertook to display as a first-run a film covered by that contract he was properly enjoined.1 § 155. News as the subject of unfair competition. The appropriation of uncopyrighted news has been the subject of consideration in but few reported cases. Clearly devoid of any technical property right, the effort and expenditure necessary to collect and transmit news items have been recognized as being entitled to protection in equity against unauthorized appropriation.1a An express declaration that the pirated news matter is published "with the permission" of the news service in question, that statement being false, is of itself unfair competition and the proper subject of relief in equity.b Stock quotations. In the case of stock market quotations, the contract being between a stock exchange and the telegraph companies and binding the latter to certain channels of distribution, the United States Supreme Court (by a vote of 6 to 3) has decided that injunction will lie against the telegraph companies and the unauthorized recipients, from the companies, of such quotations." In the seventh circuit court it had been held by the circuit court of appeals that the exchange had a property right in the 99 Jones, J., in Citizens' Light, Heat & Power Co. v. Montgomery Light & Water Power Co., 171 Fed. 553, 560 (C. C. 1909). 1-Montgomery Enterprises V. Empire Theater Co., 204 Ala. 566, 86 So. Rep. 880. la-National Telegraph News Co. v. Western Union, 60 L. R. A. 805, 56 C. C. A. 198, 119 Fed. Rep. 294, 1b-Public Ledger v. New York 2 quotations, a conclusion reaffirmed by the supreme court in a later case.3 § 156. Appropriation of “blind" advertising as unfair competition. The legal relationship of advertising to the business in which it is employed is not yet clearly established. The publication of a catch-word or catch-phrase, as the opening of an advertising campaign, is a frequent expedient. The name of the advertiser and the name of the product do not appear in the preliminary advertising, whose purpose is to arouse curiosity. When that theoretical curiosity is aroused, the names of the goods and the advertiser are disclosed to the impatient public. The first steps in such a campaign are styled "blind" advertising. Obsessed by the idea that its proper field for new customers was among the dissatisfied customers of others, a St. Louis laundry published the word "Stopurkicken" (which it believed to be "an attractive misspelling and contraction of the phrase "stop your kicking,") on signboards and printed cards. Before the key was published, an enterprising printing concern distributed cards bearing the advertised word, followed by its own name. This act obviously destroyed the value of the laundry's advertisement. An action for damages resulted in a nominal verdict and judgment for the plaintiff was reversed on appeal. The reversal was predicated upon the grounds that there was no trademark right in the word. so advertised, and as it had not been used in connection with a disclosure of the plaintiff's name or business it had not been associated in the mind of the public with the plaintiff's business. There was also no competition at all between clotheswashing and the sale of printed matter, and therefore no unfair competition.* It may be doubted whether the contemptible appropriation by another of such "blind" advertising can not be restrained or punished; the wrong and injury are manifest, and there should be a remedy. But the successful action will not be grounded on unfair competition unless the parties are competitors. "If there is no competition there is no unfair competition." 5 2-Board of Trade v. L. A. Kinsey Co., 130 Fed. Rep. 507, 513; 64 C. C. A. 669. 3-"It is established that the quotations are property and are entitled to the protection of the law." Mr. Justice McKenna, in Hunt v. New York Cotton Exchange, 205 U. 4-Westminster Laundry Co. v. Hesse Envelope Co., 174 Mo. App. 238; 156 S. W. Rep. 767. 5-Carland, J.. in Carroll v. Duluth Superior Mill. Co., 232 Fed. |