under this paragraph, wherein otherwise innocent means are condemned because the end is wicked, or a true strike case under the preceding paragraph, wherein, because the end is lawful, all means may be called into play except those that are unlawful in themselves. The record shows that the local unions had a conference in regard to conditions in all the foundries in the city and county of Milwaukee; that they formulated demands respecting wages, overtime, double time on holidays, piecework, weekly pay day, limitation of the number of apprentices, and a joint arbitration board; that these demands were made alike upon all the foundry owners within that territory; and that when the demands were rejected the union men in all the foundries struck. Nothing in the record indicates that there was any want of good faith in making these demands, or that the strike was undertaken with any other purpose than to enforce them, or that appellee received or was singled out to receive different treatment from that dealt out to other foundry owners. So the employment of assault and duress in the progress of the strike should be attributed to a combination to accomplish a lawful end by unlawful means, rather than the employment of unlawful means should be taken as proof that the end sought to be accomplished by such means was itself unlawful. And consequently the parts of the decree which prohibit the use of persuasion and picketing can be justified only on the basis that such means are not lawfully to be applied in a genuine struggle of labor to obtain better terms and conditions; for surely men are not to be denied the right to pursue a legitimate end in a legitimate way, simply because they may have overstepped the mark and trespassed upon the rights of their adversary. A barrier at the line, with punishment and damages for having crossed, is all that the adversary is entitled to ask.

So far as persuasion was used to induce apprentices or others (section 16 of the decree) to break their contracts to serve for definite times, the prohibition was right. And the reason, we believe, is quite plain. Each party to such a contract has a property interest in it. If either breaks it, he does a wrong, for which the other is entitled to a remedy. And whoever knowingly makes himself a party to a wrongful and injurious act becomes equally liable. But in the present case the generality of the men who took or sought the places left by the strikers were employed or were offered employment at will, as the strikers had been. If either party, with or without cause, ends an employment at will, the other has no legal ground of complaint. So if the course of the new men who quit or who declined employment was the result of the free play of their intellects and wills, then against them appellee had no cause of action, and much less against men who merely furnished information and arguments to aid them in forming their judgments. Now it must not be forgotten that the suit was to protect appellee's property rights. garding employments at will, those rights reached their limit at this line: For the maintenance of the incorporeal value of a going business appellee had the right to a free access to the labor market, and the further right to the continuing services of those who accepted employment at will until such services were terminated by the free act of one or the other party to the employment. On the other side of this limiting line, appellants, we think, had the right, for the purpose of

Re

maintaining or increasing the incorporeal value of their capacity to labor, to an equally free access to the labor market. The right of the one to persuade (but not coerce) the unemployed to accept certain terms is limited and conditioned by the right of the other to dissuade (but not restrain) them from accepting. For another thing that must not be forgotten is that a strike is one manifestation of the competition, the struggle for survival or place, that is inevitable in individualistic society. Dividends and wages must both come from the joint product of capital and labor. And in the struggle wherein each is seeking to hold or enlarge his ground, we believe it is fundamental that one and the same set of rules should govern the action of both contestants. For instance, employers may lock out (or threaten to lock out) employees at will, with the idea that idleness will force them to accept lower wages or more onerous conditions; and employees at will may strike (or threaten to strike), with the idea that idleness of the capital involved will force employers to grant better terms. These rights (or legitimate means of contest) are mutual and are fairly balanced against each other. Again, an employer of molders, having locked out his men, in order to effectuate the purpose of his lockout, may persuade (but not coerce) other foundrymen not to employ molders for higher wages or on better terms than those for which he made his stand, and not to take in his late employees at all, so that they may be forced back to his foundry at his own terms; and molders, having struck, in order to make their strike effective may persuade (but not coerce) other molders not to work for less wages or under worse conditions than those for which they struck, and not to work for their late employer at all, so that he may be forced to take them back into his foundry at their own terms. Here, also, the rights are mutual and fairly balanced. On the other hand, an employer, having locked out his men, will not be permitted, though it would reduce their fighting strength, to coerce their landlords and grocers into cutting off shelter and food; and employees, having struck, will not be permitted, though it might subdue their late employer, to coerce dealers and users into starving his business. The restraints, likewise, apply to both combatants and are fairly balanced. These illustrations, we believe, mark out the line that must be observed by both. In contests between capital and labor the only means of injuring each other that are lawful are those that operate directly and immediately upon the control and supply of work to be done and of labor to do it, and thus directly affect the apportionment of the common fund, for only at this point exists the competition, the evils of which organized society will endure rather than suppress the freedom and initiative of the individual. But attempts to injure each other by coercing members of society who are not directly concerned in the pending controversy to make raids in the rear can not be tolerated by organized society, for the direct, the primary, attack is upon society itself. And for the enforcement of these mutual rights and restraints organized society offers to both parties, equally, all the instrumentalities of law and of equity.

With respect to picketing as well as persuasion, we think the decree went beyond the line. The right to persuade new men to quit or decline employment is of little worth unless the strikers may ascertain who are the men that their late employer has persuaded or is

attempting to persuade to accept employment. Under the name of persuasion, duress may be used; but it is duress, not persuasion, that should be restrained and punished. In the guise of picketing, strikers may obstruct and annoy the new men, and by insult and menacing attitude intimidate them as effectually as by physical assault. But from the evidence it can always be determined whether the efforts of the pickets are limited to getting into communication with the new men for the purpose of presenting arguments and appeals to their free judgments. Prohibitions of persuasion and picketing, as such, should not be included in the decree. (Karges Furniture Co. v. Amalgamated Wood Workers' Union, (supra); Everett-Waddy Co. v. Typographical Union, 105 Va. 188, 53 S. E. 273, 5 L. R. A. (Ñ. S.) 792 [Bulletin No. 65, p. 346].)

We have not found anything in the evidence that justified the decree as to an "illegal boycott." No attempt was made to touch appellee's dealings or relations with customers and users of its goods. (Oxley Stave Co. v. Coopers' International Union (C. C.), 72 Fed. 695 [Bulletin No. 7, p. 783]; Loewe v. Cal. State Federation of Labor (C. C.), 139 Fed. 71 [Bulletin No. 61, p. 1067]; Loewe v. Lawlor, 208 U. S. 274, 52 L. Ed. 488 [Bulletin No. 75, p. 622].) After the strike was on, appellee sent patterns, on which the strikers had been working, to foundries in other cities. The strikers procured the molders in those foundries, who also were members of the Iron Molders' Union of North America, to refuse to make appellee's castings. Those molders notified their employers that they would have to cancel their contracts to make castings for appellee, or they would quit work. Some employers discharged the notifiers, others refused to cancel and the union men struck, and others complied and the union men stayed. In those instances where the foundrymen fulfilled their contracts, appellee was not damaged; in those where foundrymen broke their contracts, there is no proof that appellee has not collected or can not collect adequate damages. That might be taken as a reason why appellee on this branch of the case is not entitled to the aid of equity. But there is a more important reason. Appellants were aiming to prevent, and appellee to secure, the doing of certain work in which the skill of appellants' trade was necessary. Here was the ground of controversy, and here the test of endurance. If appellee had the right (and we think the right was perfect) to seek the aid of fellow foundrymen to the end that the necessary element of labor should enter into appellee's product, appellant had the reciprocal right of seeking the aid of fellow molders to prevent that end. To whatever extent employers may lawfully combine and cooperate to control the supply and the conditions of work to be done, to the same extent should be recognized the right of workmen to combine and cooperate to control the supply and the conditions of the labor that is necessary to the doing of the work. In the fullest recognition of the equality and mutuality of their rights and their restrictions lies the peace of capital and labor, for so they, like nations with equally well drilled and equipped armies and navies, will make and keep treaties of peace, in the fear of the cost and consequences of

war.

The decree is modified by striking out "persuasion" and "persuading" from the 4th and 7th paragraphs; further modified by

adding after "picketing" in the 5th paragraph " in a threatening or intimidating manner "; vacated as to the 1st, 8th, 9th, 10th, 14th and 15th paragraphs; affirmed as to the 2nd, 3rd, 6th, 11th, 12th, 13th, 16th and the modified 4th, 5th and 7th paragraphs. Costs of this court to be divided equally.

Grosscup, Circuit Judge (concurring) said:

The foregoing opinion so compactly and clearly sets forth the correlative rights and the correlative obligations of employer and employees when engaged in a strike or lockout, that it is with hesitation that I add this word; and I only add it that nothing that is contained. in the opinion, may be construed to relate to the correlative rights and the correlative obligations of employer and employees in any relationship other than their somewhat anomalous relationship pending a strike or lockout.

A strike is cessation of work by employees in an effort to get for the employees more desirable terms. A lockout is a cessation of the furnishing of work to employees in an effort to get for the employer more desirable terms. Neither strike nor lockout completely terminates, when this is its purpose, the relationship between the parties. The employees who remain to take part in the strike or weather the lockout do so that they may be ready to go to work again on terms to which they shall agree the employer remaining ready to take them back on terms to which he shall agree. Manifestly, then, pending a strike or a lockout, and as to those who have not finally and in good faith abandoned it, a relationship exists between employer and employee that is neither that of the general relation of employer and employee, nor again that of employer looking among strangers for employees, or employees seeking from strangers employment. And it is with respect to this somewhat anomalous relationship that, as I understand it, this opinion speaks; a statement that it seems to me ought to be made to confine the opinion to the actual situation to which it is intended to relate to differentiate what we say from what might arise in cases where, neither strike nor lockout pending, persuasion is resorted to to induce other employers not to employ given applicatants for employment, or to persuade employees not to take employment with given employers, upon which questions we do not as I understand it, express any opinion.

DECISIONS UNDER COMMON LAW.

EMPLOYER AND EMPLOYEE-DISCLOSURE OF TRADE SECRETS-CONFIDENTIAL RELATIONS INJUNCTION-Stevens & Company v. Stiles, Supreme Court of Rhode Island, 71 Atlantic Reporter, page 802.This was a case in which N. C. Stiles, a former employee of the company named, had been enjoined from using a list of names copied from the company's books while he was in its employ as an examining optician. Stiles appealed from the decree, which was, however, affirmed, and the cause remanded to the lower court for further proceedings.

Judge Johnson, who delivered the opinion of the court, took up first the question as to the relations of Stiles to his employers, and spoke as follows:

Counsel for the respondent makes no question that equity will restrain the disclosure of confidential communications, trade secrets, and the contents of private papers. But he urges that in the case at bar the relations of the parties were not confidential; that there was no agreement that respondent, upon severing his relations with the complainant company, should not enter into competition with it; that the only names copied from the complainant's lists were those of customers he personally examined; and that to copy and use such a list of names is not a breach of trust, or a breach of confidence. As to the argument that the relations of the parties were not confidential, we do not understand that the fact of agency is denied. It is admitted that the respondent was in the employ of the complainant in its store, examining the eyes of patrons, prescribing glasses, and making records of the cases examined and treated, as also of prescriptions which came to the store from physicians outside. We do not see how such relations can be considered as other than confidential. As to the absence of an agreement not to enter into competition with the complainant, it is sufficient to say that the decree does not enjoin such action on the part of the respondent. Particular stress is laid upon the claim that the only names copied from complainant's lists were those of customers whom the respondent personally examined, and it is argued that to copy and use such a list of names is not a breach of trust or a breach of confidence. The argument does not commend itself to us. It is elementary that what is done by the agent in the course of his employment is in the legal sense done by the master himself. The respondent could have no more right to copy records made by himself, while acting for the complainant, than he would have to copy any other records of the complainant to which he had access.

A number of English cases on the disclosure of trade secrets were then presented, after which the court said:

The same doctrine prevails in this country. Judge Story, after speaking of the prevention by injunction of the use of names, marks, letters, or other indicia of a tradesman, by which to pass off goods to purchasers as the manufacture of that tradesman when they are not so, states the doctrine broadly, as follows: "Upon similar grounds of irreparable mischief courts of equity will restrain a party from making a disclosure of secrets communicated to him in the course of a confidential employment. And it matters not in such cases whether the secrets be secrets of trade or secrets of title, or any other secrets of the party important to his interests." (2 Story, Eq. Jur. § 952.) In 1 High on Injunctions, § 19, it is thus stated: "The disclosure of secrets which have come to one's knowledge during the course of a confidential employment will be restrained by injunction. And where a confidential relationship has existed, out of which one of the parties has derived information or secrets concerning the other, equity fastens an obligation upon his conscience not to divulge such knowledge, and enforces the obligation, when necessary, by in