junction. Thus persons who, in the capacity of attorneys, agents, or in other confidential relations, have obtained the custody of books and documents of their principals, or have come into possession of secrets relating to their affairs, will be restrained from making them public." (See, also, 5 Pomeroy's Eq. Jur. § 267.) In Peabody v. Norfolk, 98 Mass. 452, 96 Am. Dec. 664, there was a contract not to disclose secrets as to machinery. The court, Gray, J., says (page 461 of 98 Mass.): "A secret of trade or manufacture does not lose its character by being confidentially disclosed to agents or servants, without whose assistance it could not be made of any value. Even if, as is argued in support of the demurrer, the process is liable to be inspected by the assessor of internal revenue or other public officer, the owner is not the less entitled to protection against those who in, or with knowledge of, violation of contract and breach of confidence undertake to disclose it or to reap the benefit of it."

In Loven v. People, 158 Ill. 159, 42 N. E. 82, the bill alleged, inter alia, that Loven fraudulently, and without the knowledge or consent of his employers, copied the names of a great number of their customers, together with post-office addresses, by means of his duties as correspondent, from the books kept by his employers. A decree was entered enjoining Loven " from in any manner corresponding with complainant's agents.or customers, or soliciting them to buy defendant's medicines of any kind, or divulging the names of complainant's customers and agents, or any of the secrets of the business, or interfering therewith."

Upon the authorities considered, it is clear, not only that equity will restrain defendants from disclosing secrets pertaining to plaintiff's business, where the knowledge of such secrets has been acquired while in the employ of the plaintiff, under an agreement that, in consideration of the employment, they would not divulge such secrets, but also that in such case it is not necessary that there should be an express covenant upon the part of the defendant not to disclose the secrets of the plaintiff's business, if such agreement may fairly be implied from the circumstances of the case and the relation of the parties. (See, also, Stone v. Goss, 65 N. J. Eq. 756, 55 Atl. 736, 63 L. R. A. 344, 103 Am. St. Rep. 794; Westervelt v. Nat. Paper Co., 154 Ind. 673, 57 N. E. 552; Eastman Kodak Co. v. Reichenbach, 79 Hun, 183, 29 N. Y. Supp. 1143.)

Our conclusion is that the doctrine that equity will restrain as well from breach of trust or confidence arising from the confidential relation of employer and employee as from breach of express contract is clearly established by the authorities, and is in accordance with sound reason.

The preliminary injunction was properly granted. The appeal is dismissed, the decree below is affirmed, and the cause is remanded to the superior court for further proceedings.

EMPLOYER AND EMPLOYEE-WRONGFUL DISCHARGE-REMEDY-DUTY TO SEEK NEW EMPLOYMENT-BURDEN OF PROOF-Quick v. Swing, Supreme Court of Oregon, 99 Pacific Reporter, page 418.-This was an action on a contract between Elmer Quick and John Swing, by

which Quick sought to recover for breach of contract and wrongful discharge. Quick was employed as engineer and deck hand on a tugboat for one year from May 1, 1905, for the sum of $1,000, but was discharged without cause on October 29 of that year. Judgment was rendered in Quick's favor in the circuit court of Coos County, which was, on appeal, affirmed by the supreme court. The grounds of the appeal, and the reasons for affirming the judgment appear in the following quotation from the opinion of the court, which was delivered by Judge Moore.

After stating the facts, Judge Moore said:

At the trial the plaintiff, appearing as a witness in his own behalf, was asked on direct examination what work, if any, he had performed between October 29, 1905, when he was discharged, and May 1, 1906, when his services would have terminated pursuant to the agreement. An objection to the question, on the ground that it was immaterial, irrelevant, and incompetent, because the action was for the recovery of wages under the contract, and not for damages resulting from a breach of the agreement, having been overruled and an exception allowed, the witness replied that between the days specified he had performed no labor. It is contended by defendant's counsel that in permitting the challenged question to be answered an error was committed. It is insisted by plaintiff's counsel, however, that the complaint herein sets forth the contract of employment, asserts a breach thereof by a wrongful discharge, affirms an ability and willingness to continue the service, and avers the sum of money that would have been received under the agreement, and that sufficient facts being thus stated to authorize the recovery of the damages sustained, though damages as such are not claimed, the testimony objected to was admissible. No demurrer appears to have been interposed to the complaint; and, as its sufficiency was not challenged, all reasonable intendments are to be invoked in favor of the pleading, to which no objections were made until the trial. The remedy of an employee who has been wrongfully discharged before the expiration of his term of engagement is not in assumpsit for implied services or for wages, but is for damages resulting from a breach of the agreement. (Hamilton v. Love, 152 Ind. 641, 53 N. E. 181, 54 N. E. 437, 71 Am. St. Rep. 384; Howard v. Daly, 61 N. Y. 362, 19 Am. Rep. 285; Weed v. Burt, 78 N. Y. 191.) In a case of this kind. the complaint usually sets forth the contract of employment, alleges a breach thereof by a wrongful discharge prior to the expiration of the term of service, asserts the ability and willingness of the servant to perform the work required, and concludes with the allegation that, in consequence of the failure of the defendant to keep and perform the terms of the agreement, the plaintiff has sustained damages in a stated sum, for which judgment is demanded. The complaint in the case at bar does not aver that the plaintiff has been damaged, but, after stating the facts in substance as herein before. detailed, concludes with a demand for judgment for a specified amount of money.

In a note to the case of Howay v. Going-Northrup Co., 6 L. R. A. (N. S.) 49, 68, it is said: "Even an averment in a complaint that

there is now dus the plaintiff by virtue of the contract of employment a specified sum in effect charges that the plaintiff's damages for such breach amount to that sum, and constitutes a claim, not technically for wages, but for compensation for the breach of the contract "-citing in support thereof Winkler v. Racine Wagon & Car Co., 99 Wis. 184, 74 N. W. 793 [Bulletin No. 17, p. 645]. To the same effect, see 26 Cyc. 1002; Bartlett v. O. F. Sav. Bank, 79 Cal. 218, 21 Pac. 743, 12 Am. St. Rep. 139; Paige v. Barrett, 151 Mass. 67, 23 N. E. 725. The sufficiency of the complaint herein not having been assailed by a demurrer, its averments should be liberally construed, to the effect that the plaintiff's damages for the breach of the agreement amount to the sum for which judgment was demanded, and that the allegations of his primary pleading formulate not an assertion for wages but a compensation for the breach of the agreement. With these preliminary observations in respect to the form of action as disclosed by the averments of the complaint, attention will be called to the objection interposed to the testimony given by the plaintiff. The burden of proving that, after the plaintiff was discharged, he could have secured other employment, and thus have reduced the damages which he claimed, to the extent of the wages received from other sources, was imposed upon the defendant. (Winkler v. Racine Wagon & Car Co., 99 Wis. 184, 74 N. W. 793.) Though the plaintiff was not obliged to anticipate such defense (Wirth v. Calhoun, 64 Nebr. 316, 89 N. W. 785), we can not see how the defendant was prejudiced by the testimony to which objection was made, and conclude that no error was committed in permitting the question to be answered.

Exceptions were taken to the court's refusal to charge the jury as requested, which instructions practically present the same questions considered as to the sufficiency of the complaint and the admissibility of the plaintiff's testimony.

Believing that no error was committed as alleged, the judgment is affirmed.

EMPLOYERS' LIABILITY-DUTY OF EMPLOYER AS TO EMPLOYMENT OF COMPETENT FELLOW-SERVANTS EVIDENCE OF INCOMPETENCE-CONTRACT WITH TRADE UNION AS DEFENSE-Pearson v. Alaska Pacific Steamship Company, Supreme Court of Washington, 99 Pacific Reporter, page 753.-N. W. Pearson had obtained a judgment against the company above named on account of injuries received while in its employment as a hatch tender, from which it appealed. The ground of the action was the negligence of the employer in hiring an incompetent coservant as driver of a winch. By the negligent handling of the winch Pearson was injured, and the charge of negligence in this regard was sustained by the finding of the superior court of King County, and, on appeal, by that of the supreme court. An added point of interest is found in the fact that the steamship company had secured the incompetent workman under a contract with the Longshoremen's Union (of which Pearson was also a member),

and held itself excused from liability for his incompetence on that ground. This point is discussed in the opinion of the court, which was delivered by Judge Rudkin, who also set forth the rule as to the employer's duty in the choice of workmen.

The opinion is in part as follows:

The principal ground of negligence charged in the complaint was the allegation that the appellant employed and retained in its employ an incompetent and inexperienced winch driver. The appellant contends that the hatch tender and the winch driver were fellow-servants, that the only evidence of incompetency or inexperience on the part of the winch driver was the single act of negligence which caused the injury complained of, and that a single act of negligence on the part of a servant is not sufficient evidence of incompetency or unskillfulness to charge the master with knowledge of such incompetency or unskillfulness. That the hatch tender and winch driver were fellowservants may be conceded for the purpose of this appeal, and we might also concede that the appellant's further contention is sound, if the single act of negligence which caused the injury were the only evidence of incompetency or unskillfulness on the part of the winch driver; but we think the testimony of the winch driver himself tends very strongly to show that he was both inexperienced and incompetent. When the master places a servant in charge of dangerous machinery where special knowledge, skill, or experience is required for its safe and successful operation, he must make reasonable effort to ascertain the qualifications of the servant thus employed, and, if he fails to do so, he can not escape liability by showing that there was nothing in the conduct of the servant during the course of two hours' employment to demonstrate or give notice of his incompetency. The rule is thus stated by this court in the recent case of Seewald v. Harding Lumber Company, 96 Pac. 221: "It was respondent's duty to make reasonable effort to learn the qualifications of the engineer, having regard to the safety of the other men, and it was for the jury to say whether it had learned, or by the exercise of reasonable care might have learned, of that incompetency in time to have removed him and prevented this accident. Speaking of the degree of care required of a master in the selection of servants, the court, in Wabash Ry. Co. v. McDaniels, 107 U. S. 454, 460, 2 Sup. Ct. 932, 27 L. Ed. 605, said: It is such care as, in view of the consequence that may result from negligence on the part of employees, is fairly commensurate with the perils or dangers likely to be encountered.""

There is nothing in the record before us to indicate that the appellant made any effort to ascertain the qualifications of the winch driver at the time of or prior to his employment, except an offer to prove that the appellant had a contract with the Longshoremen's Union of Seattle, of which the respondent is a member, under which the appellant agreed to employ members of that union exclusively; and we are clearly of opinion that the testimony was ample to warrant the jury in finding that the winch driver was incompetent and inexperienced, that such incompetency and inexperience might have been ascertained by the appellant prior to the injury by the exercise of reasonable diligence on its part, that the incompetency and inexperience of the winch driver was the direct and proximate cause of the

injury, and that the respondent was not guilty of contributory negligence. The motions for nonsuit and for a directed verdict were therefore properly denied.

The appellant offered to prove that it had a contract with the Longshoremen's Union, of which the respondent is a member, whereby it agreed to employ members of that union exclusively, that said union is an association organized for the purpose of furnishing experienced men in loading and unloading vessels at the port of Seattle, that the union furnished the winch driver in question pursuant to a request from the appellant, and that the appellant relied upon the fact that the winch driver thus furnished was competent to discharge the duties assigned him; but an objection to the offer of proof was sustained. As stated above, there was in our opinion ample evidence to establish the fact of incompetency on the part of the winch driver, and, in view of the fact that the safety of other employees of the common_master required that the winch driver should possess special knowledge and skill, it was incumbent on the master to make reasonable effort to ascertain his competency and fitness. It is conceded that the master made no inquiry itself, and that no inquiry was made by the union which the master constituted its agent for that purpose. Admitting therefore that the master is presumed to exercise proper care in the selection of his servants, that presumption can not prevail when it affirmatively appears that both the master and the agency to which he intrusts that duty have been negligent and derelict in that regard. There was therefore no error in the ruling complained of.

p.

LABOR ORGANIZATIONS-BOYCOTT-SECONDARY OR COMPOUND BOYCOTT CONSPIRACY INJUNCTION-UNINCORPORATED ASSOCIATIONS— The American Federation of Labor v. The Buck Stove and Range Company, Court of Appeals of the District of Columbia, 37 Washington Law Reporter, page 154.-The corporation named above had secured an injunction against the American Federation of Labor and certain officers of the same. (See Bulletin No. 74, p. 246, and No. 80, 124. For the injunction, see Bulletin No. 74, p. 254.) The action in the present case was an appeal from the injunctive order and resulted in its being modified and affirmed. The facts were stated in the earlier reports of the case and are in brief as follows: The Buck Stove and Range Company is a corporation engaged in the manufacture of stoves and ranges, which it sold over a large part of the United States, but on account of difficulties with some of its employees a boycott against its products was declared by the local and national organizations of workingmen connected or affiliated with the trades, and the name of the company was published in the American Federationist, the organ of the American Federation of Labor. This act was enjoined, among others, and it was this publication and various other acts of alleged interference with the complainant's business that led to the prayer for the injunction. The opinion of