(dissenting) I cannot agree with the majority of the Court, and the subject is of such general concern and of so much importance, that I must depart from our usage to allow the opiuion of the majority to pass as the opinion of all in matters of minor importance.
I do not deny that, in some sense, every one who renders .service for another is that other’s servant; but I do deny that in every such case the relation of master and servant is established. The-child is servant of the parent, the wife of the husband, (and why not the husband of the wife ?) the lawyer of his client, the physician of his patient, the pastor of his .church, &c. And so the mechanic who contracts to build my .house, and the teacher who contracts to teach my children, and -.every one who contracts to do anything for me, is, in some *613sense, mj servant; and my correspondent is my “ most humble servant.” But none of these fall under the well defined and well known title of master and servant. Every layman understands that there is such a relation, just as there is the relation of husband and wife. And every lawyer when he desires to know what constitutes that relation and what, are its incidents, looks under that head, and if he looks under any other head, it is only for analogies. Blackstone says, “ The three great relations in private life, are, 1st. That of master and servant; 2d. That of husbandand wife; 3d. That of parent and child. And the law makes a 4th. That of guardian and ward.” In discussing these relations, he says, “ I shall first consider the several sorts of servants, and how this relation is created and destroyed. The first sort of servants therefore aeknowled by the laws of England, are menial servants, so called from being intra menia or domestics. The contract between them and their masters arises upon the hiring.”
This is an ancient servitude, embracing duty, subjecti m and allegiance on the part of the servant, and superiority and power on the part of the master. Bac. Ab. Master and Servant. And these characteristics, modified by times and circumstances, always distinguish the relation of master and servant; and Mr. Graham’s brief refers ns to the decalogue, fourth and tenth commandments, as showing that such were the cliar-acterislics of servitude in those days.
Quoting again from Blackstone : “ Another species of ser-
vants are called apprentices, (from apprendre, to learn,) and arc usually bound for a term of years by deed indented, or indentures, to serve their masters, and be maintained and instructed by them.”
Servitudes of this kind were at first formed by the parties themselves, or by their parents or friends acting for them. But subsequently, the overseers of the poor, or other proper authorities bound out poor children as apprentices. The incidents to the relation of master and apprentice were, on the part of the apprentice, service and subjection ; and on the part *614of the master, powei’, instruction, protection and maintenance. The mode of apprenticing by indentures of the parties, was at common law, and the binding by the overseers of the poor, was by statute ; and we have had similar statutes.
It is not pretended that any such relation as I have de_ scribed exists in the ease before us. There is no other relation of master and servant known to the common law. How then an the relation in this case be that of master and servant ? Take it that there is a contract of service — hard enough in its terms — yet there is wanting the element of protection and maintenance on the part of the plaintiff, which is indispensable to create the relation of master and apprentice. If therefore, any of the many authorities cited in the learned opinion of the majority in this case are founded on the relation of master and servant which I have been considering, they are inapplicable. There are, however, relations of master and servant in England other than those which I have been considering.
Quoting again from Blackstone: “ A third species of servants are laborers, who are only hired by the day or the week, and do not live inira menia as part of the family7; concerning whom the statutes before cited have made many very good regulations: 1. Directing that all persons who have no visible effects may be compelled to work. 2. Defining how long they must continue at work in summer and in winter. 3. Punishing sucli as desert their work. 4. Empowering the justices at sessions, or the sheriff of the county to settle their wages; and 5. Inflicting penalties on such as either give or exact more wages than are so settled.
There are many of these statutes in England, regulating almost every species of trade and labor, with very stringent terms against the laborers and servants, as well as against the masters, and innumerable decisions have been made under these statutes, and neither text writers nor judges have always been careful to distinguish between cases under the statutes, and not under the statutes. Such cases are not authority here, because we have no such statutes. And yet it is very evident *615that the eomplaint is based upon the learning and cases under those statutes. It begins by setting out that the alleged servants “bound themselves as laborers.” And charges that the defendant did “ harbor and detain them.” Evidently going upon the idea that the relation of master and servant existed.
Having divested the case of the supposed character of master and servant, I propose now to consider it as it is, a contract between the parties.
I do not deny what is said in the learned opinion of the ma- ] jority that if there is a eontraet between A & B for any pur-1 pose, and C induces B to violate the contract to the injury of A, A has his action against C for damages. Not upon any | idea_of master and servant, however. In the leading case from Massachusetts, put by my learned brother, where the shoemaker was induced to break his contract, the learned Judge puts it upon the ground, of breach of contract. And so it was ? where the actress was induced to refuse,to fulfill her engagement. There was no relation of master and servant. And j fhe reference to it is only for the analogy. "
The relation of master and servant was never supposed to (¡^¿nA^xist between Barnum and Jennie Lind, nor between Strata f* -kosch and Neill bob? But still I admit that if a third person had induced these queens, not servants of song, to violate their contracts, such third person would have been liable in damages.
But I do not admit that to induce one to violate a contract is per se actionable, as it is the relation of master and servant or master and apprentice. In order to make it so there must be damage. And the damage must be specifically charged and proved. There is no charge of damage. Damages are “ demanded'” but none are charged to have been sustained. There must be a per.quod in all such eases. Here there is none. In the Massachusetts case, which leads and is made the basis of the opinion of the majority, the learned Judge enumerates four requisites to sustain the action, which the declaration .must eon-(tain, and which the declaration in that case did .contain;
L Intentional and wilful acts*
*6162. Calculated to cause damage to the plaintiffs in their lawful business.
3. Done with the unlawful purpose to cause such damage.”1
Now grant, for the sake of the argument, that the complaint in this case contains the three first requisites, although I do not think it does, yet the fourth requisite is wholly wanting..
“4. Actual damage and loss resulting.”
In regard to this last requisite, which is the gist of the whole matter, and without which there can be no recovery in any such case, there is no allegation, whatever. In the Massachusetts case, each count in the declaration contained theper quody “ Whereby the plaintiff' lost the services, &c., and' all the advantages and profits, dec-., and incurred large expense to procure other suitable workmen, &c., and were com polled to pay much larger prices, &c., and have been hindered in their business to a large extent, &c.,. from which they would otherwise have realized large- profits, &cJ’ And the second count: “ Whereby their stock of leather was greatly damaged, and1 they were compelled1 to pay much higher prices, &c.” And1 so in the other count. If all this was necessary in that ease, which is the basis of this, why is it not necessary in this % It is necessary in every ease, and no ease can be found in England or America, where it has been held otherwise. It is common-learning. And doubtless was overlooked in the learned opinion of the majority, because we had no argument on the part of the defendant, and other points were made prominent as the only points by the learned counsel for the plaintiff.
2. The contract is not binding, upon the laborers because of fraud and imposition apparent on its face.
That Eastwood, and Wilkerson are ignorant, is apparent from: the fact, that they make their mark to the agreement. That they are poor, is apparent from the fact that they have no-homes,'but have to live on the land's of the plaintiff;, and they have neither teams nor tools with which to make a crop, and that they are dependent, is apparent from the fact that they stipulate against their “insólense,”'and' that of all their family,. *617towards the plaintiff and all his family, without requiring like stipulations from the plaintiff; and from the fact that they put it in the power of the plaintiff, at any time during the year, to turn them ont of their houses, and take to himself the whole of their labor and crop; and that, not alone for unfaithfulness in their business, but for what he or any of his family may be pleased to consider disrespectful behavior to him, or to any of his family, in no way connected with their business — the mere flout of a child, it may be. And that the plaintiff used his power over them fraudulently, to circumvent them, is apparent from the fact that he took from them such an unconscionable agreement.
The plaintiff’s counsel informed us that his researches had found but one case where a contract had been resisted at law as unconscionable; where a grain of rye had been promised for the first day, increasing every day in geometrical progression for a considerable time, when it was found that there was not as much rye in all the world. There is another kindred ease, where a horse was shod for a penny for the first nail, and increasing for every other nail, in geometrical progression. These cases are too remote and comical to be of any practical use, but the books are full of cases where Courts of equity, as we are now, have relieved against contracts founded in fraud and circumvention, and where equity refuses to enforce contracts which have the element of hardship or unfair advantage. In order to meet this view of the case, the opinion of the majority estimates that although the contract stipulates that Has-kins has everything in his own hands/and he is to do whatever “ suits ” him, yet if he were to discharge the laborers without good cause, they might have their action against him. But then the opinion fritters the right away to nothing, because it goes on to argue and cite authorities to show that a man may be judge or arbitrator in his own cause; and besides, what poor remedy is a law suit for these laborers who have neither time nor money to spare. The only security against such contracts is for the Courts utterly to ignore them. And yet, *618instead of ignoring this contract, the most important principles are subjugated to sustain it. It is made the case of master and servant without the element of maintenance on the part of the master; and in order to sustain the stipulation for the arbitrary will of the plaintiff to govern all, the wholesome rule, that no one shall be judge in his own cause, is subordinated.
• 8. Rut the gravest objection to the contract is, that is against public policy.
If Eastwood and Wilkerson had contracted in so many words to be the slaves of the plaintiff, it would be conceded to be against public policy, and void. But here is a condition worse than slavery. If slaves, ho wmuld have been entitled to their services and could have enforced their good behavior and punished their insolence, but he would have been obliged to feed and clothe them and provide them shelter. But here he stipulates for their services and for their good behavior, and that they shall feed and clothe themselves and leave their homes at his bidding, leaving to him the results of their labor. And then, if any third person shall entice them away from such a /Contract and furnish them employment by which they can live, he claims to recover of such person damages. It is plain to see that if such contracts were allowed, society would soon be disorganized with the worst results, both to employers and laborers. There is no greater danger in any community than a dependent class upon whom is the hand of oppression bearing hard, and who have no where to look for relief. Consider who these parties are, and their condition. The plaintiff is a land owner. He agrees with two laborers, one white and the other colored, to furnish them land, teams, <&e., and they are to cultivate the land and the crop is to be divided between them. Such relations have always existed in the State. They have never been called master and servant, but landlord and tenant, lessor and lessee, cropper or partners, according to the contract. There has never been anything degrading in any of these relations ; public policy requires that there should not be. The State has no greater interest, than that all her citizens, *619laborers and employers alike, should have the spirit, behavior and independence of manhood. Now turn to this 'contract. “ The said Eastwood and Wilkerson agree to work faithfully all the year, and cause their hands to do the same ; they are to work wholly by the orders and directions of said Haskins at all times, and should any of the above mentioned hands fail to work to suit the said Haskins, he has the privilege to discharge them’at any time he may think proper.” This would seem to be strong enough to secure to Haskins all that he ought to have expected, the right to discharge them at any time if they failed to work to suit him. But the contract goes on, “ The hand or hands discharged losing all their labor and time done by them on the farm of said Haskins, and leave the plantation immediately, the said Haskins drawing their proportionate part of all the crops.” Surely that was enough, but it proceeds. “ Should any oí the said hands be, in the judgment of said Haskins, insolent’to said Haskins, or disrespectful to hin^ or any of his family, the said Haskins has the privilege of discharging said hands at any time, the said hand discharged losing all the labor rendered by him.” No one can read the contract without being satisfied that the best interest of society forbid that it should be enforced or in any way countenanced in the Courts. It bears upon its face the evidence that the plaintiff intended to get the labor of these men and discharge them and keep their earnings. And then what could they do? Men with families, the year gone, and all their earnings gone. The alternative is the poor house or crime and the jail.
What would be the condition of society if every contract was of this character? And if one may be, all may be. On the first of November the plaintiff might drive off" the laborers and their families, and keep all their earnings; and then for the winter, they would be without shelter, food or raiment; they would be paupers, and every community must support its paupers. And every government must provide for its paupers, and to prevent pauperism, every prudent government regulates the relations of masters and servants, and masters *620and apprentices. And, as labor is always more or less depen-dant in most countries thickly populated, they have statutes regulating labor. In England they have “ laborers’ statutes” regulating almost every species of labor, with a view to the protection of both employer and laborer. And I think no ease can be found in England or America whore such a contract as this is authorized by statute, or supported by the Courts. Indeed, I do not know that it can be fairly inferred from the opinion of the majority in this case, that this contract would be supported, if the controversy were between the plaintiff and the laborers. I think it would not.
4. This brings me to the only other point. It is said that even if the contract is such as the laborers may violate with impunity, yet the defendant is a malicious intermeddler, and does not stand upon the same footing with the laborers. I admit that it is of much importance to the best interests of society that valid contracts of every kind, and especially those between employers and laborers, should be observed in good faith; and that officious intermeddlers should find no favor. But it is a rule of common sense, that what one may lawfully do, another may advise him to do. Yet I admit that there is respectable authority for saying, that where there is a voidable contract which one of the parties may violate with impunity, if a third person induces him to violate it, he may be liable. The instance put is, where an infant is a party to a contract which is voidable by him, and a third person induces him to violate it, he is liable. And why should he not be ? for the contract may be for the advantage of the infant; and both the infant aud the public interested in its observance. But Mr. Smith, in his work, entitled master and servant, p. 7, says: “But it has been held that a contract by an infant binding himself to serve during a < ertain time for wages, but enabling the master to stop the work whenever he chose, and retain the wages during the stoppage, is wholly void as not being beneficial to the infant.” For which he cites Reg. v. Lord, 12 Q. *621B. 757. Observe the difference between void and voidable contracts.
Under the new regime, much of the labor of the country is performed under contract. This is the first case which has been before us in which the incidents’ of the relation of employer and laborer have been under discussion, and will probably be looked to as a precedent. I think it of great importance that employers should make only just and reasonable contracts ; that laborers should be faithful on their part; and that third persons should not intermeddle. If either of these classes violate their plain duties, they will find no favor. What I say for myself, I thifik I may say for this Court, and for all Courts Only to prevent a contrary influence is the aim of much that I have said.