in an action for wrongful discharge, especially where it was not a work of necessity and constituted misdemeanor under Rev. St. 1899, Sec. 2240, (Ann. St. 1906, p. 1420), prohibiting labor on the Sabbath other than work of necessity.Barney v. Spangler, Mo., 109 S. W. Rep. 855. 105. Trial Instructions.-Where plaintiff's right to recover was restricted by the general charge to defendant's negligence in the operation of an engine, the court did not err in refusing to charge that plaintiff could not recover because of the dangerous proximity of a post to the track.-Cunningham v. Neal, Tex., 109 S. W. Rep. 455. 106. Mentioning Amount Sued for in Charge.--Mentioning the amount sued for in a charge is not error, except when done in conjunction with a charge as to the amount of the verdict, and, even then, it is not ground for reversal, unless it reasonably appears that such reference influenced the jury in the amount returned.-El Paso Electric Ry. Co. V. Kelly, Tex., 109 S. W. Rep. 415. 107.-State Statutes as Evidence. The refusal of a request that a federal court present and explain the provisions of state statutes to the jury, where they were material as bearing on an issue of fact in dispute, held error.-Burgess Sulphite Fibre Co. v. Drew, U. S. C. C. of App., 157 Fed. Rep. 212. 108. Trover and Conversion-Defenses.-In an action for the wrongful conversion by defendant of plaintiff's horses while in custody of a common carrier for transportation, defendant's lack of knowledge as to the particular destination of the animals held not available in mitigation of damages.-Wallingford v. Kaiser, N. Y., 84 N. E. Rep. 295. 109. Vendor and Purchaser--Fraudulent Representations.-A vendor guiity of fraudulent misrepresentations held not entitled to say that the grantee will lose nothing if he will avail himself of the lands sold for a different purpose, designated by the grantor.-Steen V. Weisten, Or., 94 Pac. Rep. 834. Manufac 110. Waters and Water Courses turing Purposes.-In an action by a brewery to recover an excess paid for water from the required rate for water furnished for purely manufacturing purposes, held unnecessary to constitute a use for manufacturing purposes that all of it went into the composition of beer, and a finding based on such assumption held reversible error.-American Brewing Co. v. City of St. Louis. Mo., 108 S. W. Rep. 1. 111. Water Rent.-In an action by a water company for rent from land supplied with water, held proper for the court to submit defendant's right to counterclaim for damages to his crop caused by plaintiff's lack of care in furnishing water.-Colorado Canal Co. v. McFarland & Southwell, Tex., 109 S. W. Rep. 435. certain Wills-Construction.-Where a 112. sum was to be divided under a will in 10 years between four persons named, and at the expiration of 10 years one of such persons had died, leaving a widow, the widow was neither donee under the will nor an heir of the legatee. -Herrick v. Low, Me., 69 Atl. Rep. 314. a 113. Contest. A statutory will contest is in the nature of an appeal from the order establishing the will, and leads to a judgment establishing it in solemn form or invalidating it.-Teckenbrock V. McLaughlin, Mo.. 108 S. W. Rep. 46. 114.- -Declaration of Testatrix.-Testatrix will not be presumed ignorant of the contents of a will, because she could not read. where there is a total lack of proof of fraud, undue influence, or want of testamentary capacity.Lipphard v. Humphrey, U. S. S. C., 28 Sup. Ct. Rep. 561. 115. -Estate in Remainder.-A testator held at liberty to so dispose of his estate that an intestacy as to the estate in remainder would follow a trust estate created for the benent of his widow for her life.-Home of the Aged of the Methodist Episcopal Church of Baltimore City v. Bantz, Md., 69 Atl. Rep. 376. a will 116. Express Declaration.-Where makes no express declaration that a provision for the wife is in lieu of dower, the question of intent must be determined from the provisions of the will read in the light of surrounding circumstances.-Otts v. Otts. S. C., 61 S. E. Rep. of 119. Witnesses-Competency.-Testimony plaintiff's brother that defendants' intestate agreed to pay plaintiff a certain sum as a farm hand was properly received where there was no evidence that he was plaintiff's agent in hiring him to deceased.-Cobb v. Holloway, Mo., 108 S. W. Rep. 109. 120. Cross Examination. In a suit for infringement of a patent, where complainant confined its direct testimony to the making of a prima facie case, the defendant is not entitled to go into matters of defense on cross-examination.-Aeolian Co. v. Simpson-Crawford Co., U. S. C. C.. S. D. N. Y., 157 Fed. Rep. 320. 121. Defective Sidewalks.-In an action by a married woman for injuries on a city sidewalk, she could not be impeached by evidence that a child was born to her three months after her marriage.-City of San Antonio v. Wildenstein, Tex., 109 S. W. Rep. 231. 122. Examinations. Where plaintiff was compelled to call defendants to testify in his behalf, he should have been allowed much latitude in examining them.-Miler v. Denman, Wash., 95 Pac. Rep. 67. 123. Impeachment.-The defense should be permitted to recall a state's witness to lay the foundation for impeachment.-Johnson v. State Fla., 46 So. Rep. 154. 124. Market Value.-In an action for damage to cattle by defendant's delay in transporting them, the scope given defendant's counsel. in the cross-examination of a witness as to the source of his knowledge as to what the cattle brou ht held sufficient.-St. Louis I. M. & S. Ry. Co. v. Rogers, Tex., 108 S. W. Rep. 1027. 125. Work and Labor-Value of Services Rendered. A broker might recover in assumpsit for the reasonable value of his services, though there was a contract to pay for such services; his recovery being limited to the contract price.-Sackman v. Freeman, Mo., 109 S. W. Rep. 818. Central Law Journal. : ST. LOUIS, MO., OCTOBER 2, 1908 LIABILITY OF "FOURTH PARTIES" FOR INTERFERENCE WITH CONTRACTUAL RELATIONS. We have had occasion recently to refer to the gradual extension of the rule at common law making it actionable to entice one's servant away into a general doctrine whereby any unlawful and injurious interference with contractual relations, whether malicious or not, is actionable. Lawyers are just beginning to appreciate the wonderful possibilities of this new rule. In 67 Cent. L. J. 201, we called attention to the recent case of Knickerbocker Ice Co. v. Gardiner Dairy Co., which held it to be actionable for A. to interfere with C.'s contract with B., by refusing to sell to B. if B. continued to sell to C. In our note to that case we cited several authorities and called attention to the almost illimitable application of this new doctrine which it would profit attorneys to carefully study. We here desire to refer to another recent case which serves to illustrate the wide application of this principle to all contracts, and to every character of unlawful, injurious interference therewith. We refer to the case of Motley, Green & Co. v. Detroit Steel and Spring Co., 161 Fed. 389. In this case, the plaintiffs charged that they had a beneficial contract with the Detroit Steel & Spring Co., whereby they had the exclusive right under contract to sell defendant's springs in a certain territory at certain prices which permitted them to earn a large profit. Later, the plaintiffs charge, the defendant organized The Railway Steel Spring Co., also a defendant in this case, and procured from the latter an offer to purchase all the stock and patents of the Detroit Company, by which transaction when it was consummated, the Detroit Company was compelled to break its contract with the plaintiffs. The plaintiffs sued both companies in tort for procuring a breach of their contract with the Detroit Company and asked for one hundred thousand dollars damages. The defendants claimed that the Railway Spring Company was, in no sense liable to plaintiffs, there being no priority of contract between them, but, that the only right of action for any damages, if there were any, to plaintiffs was against the Detroit Company for breach of its contract with the plaintiffs. Here then is the supreme issue in this class of cases. Is a party injured by outside interference with his contract relations confined to his action for breach of contract or may he sue in tort and recover damages, actual and punitive against the intermeddlers? The authorities are all now agreed that the party so injured has his choice of actions. Moreover, the court in the principal case holds that, if a fourth party should aid such third party in procuring such breach of contract he too is liable in tort. That was the rule on which the Detroit Company was held liable in tort and not for breach of contract. For the petition alleged that the Detroit Company procured The Railway Spring Company to organize and to make the pretended purchase from the Detroit Company in order to nullify plaintiff's contract. On the question of the liability of "fourth parties," the court said: "It is unnecessary to say that, if it is an actionable wrong for a third party to maliciously interfere in at contract between two parties and induce one of them to break that contract to the injury of the other, then it is an actionable wrong for a fourth party to conspire with and aid and assist such third party in perpetrating the wrong. In such case the conspiring parties would both be liable as joint wrongdoers. Now, if one of the contracting parties devises a scheme to avoid his contract and escape performance and, perhaps, liability, by combining and confederating with a third person to pretend to transfer to him his property and the business to which the contract relates, making known to such third person his contract obligations and his object and purpose, such third person to pretend to be the owner and to have the possession of and the management of the business and refuse to give employment or business to the other contracting party pursuant to the contract, and deprive him of gains, profits, and advantages already partially carned, and prevent his full performance so as to deprive him of what he is entitled to, and such third party enters into and becomes a party to the scheme, and for a consideration aids to carry it into full effect to the damage of the other party to the contract, can it be said that here is not a conspiracy to commit a wrong by deception and wrongful acts, and thereto to break it to the injury of the other, can it be said it is not equally a wrong for one of the parties to the contract to invite a third party to unite with him and aid him in breaking the contract in such a way as possibly to escape liability in an action for nonperformance and, gaining his consent, to act together in consummating their agreement? There are many refinements in the law, necessarily so, but courts should be as astute in applying well-known principles of justice to remedy wrongs as the wrongdoers are in devising schemes to perpetrate them." that it has been consummated by the joint NOTES OF IMPORTANT DECISIONS action of both parties? If so, and the third party is liable for the wrong, why are not both parties liable? Can the contracting party escape by saying: "I have broken my contract, true, and your only remedy is an action for the breach of the contract?" Can the third party escape by saying: "All I have done is to aid one of the parties in violating his contract-a thing he might have done in any event-and the sole remedy of the injured party is an action in damages for breach of the contract against the party violating same?" This sophistry in this class of cases has been repudiated by the Supreme Court of the United States. and by the courts of many of the states, and by those of England. The interesting point in this case is the question of the liability of the "fourth party." In this particular instance, the "fourth party" was the contracting party himself. His action in getting a third party to interfere with his contract with the plaintiff was in the nature of conspiracy and it was certainly a deliberate attempt to break his own contract. It is often more important, however, in such case to be able to sue in tort, rather than on a breach of contract, and the court in the principal case, has the following to say why the Detroit Company should be held liable in tort as well as for breach of contract: "If it be an actionable wrong for a third person to interefere in a contract and induce one of the parties damnedest Whereupon ASSAULT AND BATTERY-ABUSIVE LANGUAGE OF PROSECUTING WITNESS TENDING TO MITIGATE DAMAGES.-It is not any character of abusive language that will justify a man in flying into a rage and striking another. This was clearly shown by the recent case of Baumgartner v. Hodgdon, 116 N. W. Rep. 1030. In this case, it appeared that, during an apparently friendly discussion of the merits of a certain horse owned by one of the parties, carried on by plaintiff, defendant, and others, plaintiff in a good-natured way remarked that the horse was "the looking horse" plaintiff ever saw. defendant flew into a passion and violently assaulted plaintiff, inflicting serious injuries to his person. The trial court charged the jury that the plaintiff's remark furnished no ground for the assault and could not be considered in mitigation of damages. The Supreme Court of Minnesota held that. though insulting and abusive language may ordinarily be considered in mitigation of damages in such cases, the particular language here shown to have been used does not bring the case within the rule, and the charge of the court was correct. In the course of its argument the appellate court grows somewhat facetious, believing, no doubt, in the old saying, men. A little nonsense now and then Is relished by the best of The court's unfavorable comparison between what is known as "horse sense" and the sense of some men in situations like the one presented in the principal case is quite interesting. The court said: "The language contains nothing whatever to prompt a person possessed of ordinary common sense and judgment to com mit a breach of the peace. The most that can be said of it is that it was disrespectful to the horse; but the horse was not present, and there was no horse trade on. Moreover, we have the right to assume that the animal was endowed by nature with the usual amount of "horse sense," and that, had the remark been overheard by him, he would have dismissed it without reply as the opinion of one not competent to speak on the subject. Therefore, as a matter of law, the remark could furnish no pretext whatever for the assault committed by defendant and was not a proper subject for consideration in mitigation of damages." THE LAW OF THE CASE. I. INTRODUCTORY. 1. The general doctrine. 2. Res judicata. 3. Stare decisis. II. THE CALIFORNIA DOCTRINE. 4. Rule as first announced-Qualifications 5. Illustrations of the rule-In chancery causes. 6. Same-On construction of pleadings. 9. Same-On injunction, ruling on. 10. Same-On oral agreement. II. Same-On order granting new trial. 12. Same-On reversal. 13. What constitutes "the law of the case." 14. Rule is applicable when. 15. Reasons of the doctrine. 18. Same-Dicta not protected by rule. III. CRITICISM OF THE CALIFORNIA DOCTRINE. I. Introductory.-The general doctrine, frequently announced by appellate courts, is that a ruling once made by the appellate court in a case, while it may be overruled, limited or modified in other cases, is binding in its entirety, both upon the inferior courts and upon the appellate court itself, in all future stages of that case, however erroneous the ruling may be; that in all subsequent proceedings in the cause, neither the lower court nor the court making the ruling can depart therefrom. A ruling or decision so made is said to be "the law of the case." Some courts-among them the California su preme court, in the earlier cases-in assigning reasons for inflexibility and adhering, right or wrong, to what is termed "the law of the case," have confounded the reasons from which three distinct legal maxims or rules of law have sprung up. These are: I. "The law of the case"; 2. Res judicata; and, 3. Stare decisis. "The law of the case" should be understood as applying to the precise point under consideration, in the same case, and between the same parties or their privies; and not another of exactly like import, but affecting different parties. A further qualification should also be added, and that is: The ruling or decision must be one necessary to the proper decision of the cause within the issues as framed, or must be expressly made for the guidance of the lower court in further proceedings, directed to be taken. Res judicata means, literally, matter or thing adjudicated; a legal or equitable issue which has been decided by a court of competent jurisdiction; and includes not only the subject-matter thereby determined, but also every other matter the parties might have litigated and had determined under the issues as iramed in the cause. All such judgments or decrees form a complete bar to a subsequent suit or action between the same parties, on the principle that the matter is res judicata.1 To make a matter res judicata four distinct things must concur, to-wit: 1. Identity of the thing sued for; 2. Identity of the cause of action; 3. Identity of the persons and of parties to the action; and 4. Identity of the quality of the persons for or against whom the claim is made. Stare decisis is to abide by, or adhere to, decided cases; stare decisis et non quieta movere. In other words, it is a general maxim that when a point has been once settled by a decision it forms a precedent which is not afterwards to be departed from; to abide by former precedents where the same point comes again into litigation and is presented again to the court, as well to keep the scales of justice even and steady. and not liable to waver with every new judge's opinion, as to make that which was before uncertain, or perhaps indifferent, permanent when the law is once solemnly declared, "which it is not in the breast of any judge to alter or swerve from according to his private sentiments; he being sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land-not delegated to pronounce a new law, but to maintain and expound the old one."? This maxim is supported on principle, and for reasons entirely different from those which apply either to the doctrine of "the law of the case" or the principles of res judicata. It is (1) See Le Guen v. Gouvenuer, 1 John, Cas. (N. Y.) 502. (2) Broom's Leg. Maxims (7th ed.), p. 147. necessary, for the sake of the stability of the rights of property, that a settled rule should be observed. It is for this reason that erroneous decisions should be permitted to stand when their correction might occasion great confusion to titles and rights which have grown up under them, and thus produce a wider-spread injustice than would result from perpetuating the error.3 The reasons for the rule of stare decisis are thought to have no application to a case where no final decision has been made between the parties; where no rule of property has been established; where no rights have grown up under it; and where the question is, not only, whether a court shall knowingly commit a glaring wrong upon one of the parties by an erroneous application of the law to his case, but whether a precedent shall be thus established under which interests of the greatest magnitude may grow up, and that, too, before the court can have an opportunity of correcting their error in a subsequent cause between other parties. II. The California Doctrine.-Rule as first announced--Qualifications.-The rule as to "the law of the case" was first enunciated in this state at the October term, 1852. On that occasion the court declared that "the previous decision of the appellate court in the same case becomes the law of the case, and is not subject to revision," although the former decision was declared to be "in abrogation of one of the plainest principles of law; and if this case was a new one, I would not hesitate to overrule it."4 The question nèxt came before the supreme court at the October term, 1856, when Mr. Chief Justice Murray declared: "It is well settled that when a case has once been taken to an appellate court, and its judgment obtained on points of law involved, such judgment, however erroneous, becomes the law of the case, and cannot, on a second appeal, be altered or changed;" "not only in the court below, but in the appellate court whenever the case is again brought before it;" "from the consequences of which the court cannot depart;"7 "is, in all subsequent proceedings in the case, and so long as the facts appear without material qualification, a final adjudication of the rights of the parties, from which the court cannot depart nor the parties (3 An analytical and exhaustive discussion of the California doctrine of stare decisis will be found in Kerr's Cyc. C. C. P., note to Sec. 53, pars. 312 to 375. (4) Dewey v. Gray, 2 Cal. 374, 377, ruled on the authority of Washington Bridge Co. v. Stewart, 44 U. S. (3 How.) 413, bk. 11 L. ed. 658 (which the court failed to properly comprehend and misapplied). See Hammond v. Ridgely, 5 Harr. & J. (Md.) 279, 9 Am. Dec. 522. relieve themselves."s And the doctrine as thus broadly announced has been substantially followed in all subsequent cases in this state." At the January term, 1860, the court, through Mr. Justice Baldwin, began to "hedge" on the broad doctrine, limiting the application of the rule to those cases in which "the facts being the same. "10 And the disposition shown by Mr. Justice Baldwin to limit the general doctrine has ever since existed, but the "hedging" has been done so conservatively that the rule still stands; the principal cases holding the rule insuperable. "But such ruling, if relating to a matter of fact, can only be invoked when the fact reappears under the same circumstances in which it was originally presented.”11 'Where the supreme court, in reversing a judg- · ment, passes upon a point of law, as resulting from the facts then before it, the rule that the law thus laid down becomes "the law of the case in all its stages," only applies so long as the evidence develops the same state of facts. If, on the new trial, the evidence shows a different state of facts from that shown on the first trial, the law of the case will be the application of the principles governing under the new state of facts developed.12 "The judgment of the supreme court in a case becomes the law of the case in all its stages, unless the conditions on which it was founded are so changed as to render its accomplishment impracticable."13 The principles and rules announced by the supreme court on a former appeal will be recognized, on a subsequent appeal, as the law of the (8) Jaffe v. Skae, 48 Cal. 540, 543; People v. Hamilton, 103 Cal. 488, 496, 37 Pac. Rep. 627. (9) See Gunter v. Laffan, 7 Cal. 588, 592: Soule v. Dawes, 14 Cal. 247; Davidson v. Dallas, 15 Cal. 75, 82; Crowell v. Gilmore, 17 Cal. 194: Phelan v. City and County of San Francisco. 20 Cal. 39, 45; Haynes v. Meeks, 20 Cal. 288. 311; Leese v. Clark, 20 Cal. 388, 417; Soule v. Ritter, 20 Cal. 522; Nieto v. Carpenter, 21 Cal. 456, 488; Table Mt. Tunnel Co. v. Stranahan, 21 Cal. 548, 551; Lucas v. City of San Francisco, 28 Cal. 591, 594; Estate of Pacheco, 29 Cal. 224, 226; Argenti v. Sawyer. 32 Cal. 414; Polack v. McGrath, 38 Cal. 666; Yates v. Smith, 40 Cal. 662, 670; McKinlay v. Tuttle, 42 Cal. 570, 576; Jaffe v. Skae, 48 Cal. 540, 543; Donner v. Palmer, 51 Cal. 629; Heinlen v. Martin, 51 Cal. 181, 183; Reclamation Dist. No. 3 v. Goldman, 65 Cal. 635, 636, 4 Pac. Rep. 676: Gwinn v. Hamilton, 75 Cal. 265, 17 Pac. Rep. 212; Porter v. Muller, 112 Cal. 355, 366, 44 Pac. Rep. 729; Wallace v. Sisson 114 Cal. 42, 44, 45 Pac. Rep. 1000; Horton v. Jack, 115 Cal. 29, 32. 46 Pac. Rep. 920; Goodsell v. Ashworth, 115 Cal. 222, 229, 46 Pac. Rep. 1066; Brind v. Gregory, 122 Cal. 480, 483, 55 Pac. Rep. 250; Kent v. San Francisco Sav. Union, 130 Cal. 401, 404, 62 Pac. Rep. 620; Raymond v. Glover, 144 Cal. 548, 78 Pac. Rep. 3. (5) Clary v. Hoagland, 6 Cal. 685, 687. (6) Lucas v. City of San Francisco, 28 Cal. 591, 594. (7) Heinlen v. Martin. 59 Cal. 181, 183. |