tion by A., by reason whereof loss is sustained, can it be said that the party who is injured by such interference has sustained no legal wrong, and that by reason thereof has sustained no injury-that is, loss? Is there not in such case damnum et injuria, which constitute the elements of an actionable wrong? Assuming, pro hac vice, that the facts averred in plaintiff's declaration are true, is it not clear that the Chemical Company, being prepared to comply with the terms of the government's proposal to buy the ink, which was the subject-matter of the proposal, and, accepting the invitation of the government to bid for the contract, by furnishing the sample and stating the price, it secured, over other bidders, a status in the negotiation which, but for defendant's interference, would have resulted in its making the contract by the performance of which it would have made a profit, why did it not have a status, the unlawful interference with which by defendants was a wrong for which he is entitled to a remedy? It is true that the right is more difficult to establish-requiring another link in the process of proof-than where the contract has been entered into. When the parties have entered into a contract, the terms of which are fixed, the plaintiff is only required to show the malicious interference and the damage proximately resulting; whereas, if the ground of complaint is that he was about to make a contract, he is required to go further and show that he was not only "about to," but would, but for the malicious interference of defendants, have entered into the contract, etc. While there are but few adjudged cases throwing light upon the subject, we are not without authority to sustain the ruling of the court below in overruling the demurrer. In Am. & Eng. Enc., vol. 16, page 1114, it is said that:

"According to some authorities, an actionable interference with contract relations is not confined to cases where the contract is binding and valid. It is actionable likewise to maliciously induce the termination of a contract, terminable at will, or to prevent the formation of contracts which, in the natural course and but for such interference, would have been formed."

For this statement of the law the author cites Walker v. Cronin, supra. In that case the declaration alleged that defendant did unlawfully, etc., molest and hinder the plaintiffs from carrying on their business of manufacture and sale of shoes-willfully persuaded a large number of persons who were in the employment of plaintiffs, and others, who were about to enter into their employment, to abandon, etc. It may be suggested that the question presented here did not necessarily arise because the declaration was good without reference to it. The language of Wells, J., however, indicates that he was making no such distinction. After citing authorities, he says:

"In all these cases, the damage for which the recovery is had is, not the loss of the value of actual contracts by reason of their nonfulfillment, but the loss of advantages either of property or personal benefit, which, but for such interference, the plaintiff would have been able to obtain or enjoy."

The language of the judge in Templeton v. Russell, 1 Q. B. 728, clearly indicates that the right of action accrues to the injured party, not only for maliciously "inducing persons to break contracts already

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entered into, but for inducing persons not to enter into contracts with the plaintiff"-the reason given being:

"That there was the same wrongful intent in both cases; wrongful, be cause malicious. There was the same kind of injury to the plaintiff. It seems rather a fine distinction to say that where a defendant maliciously induces a person not to carry out a contract already made with the plaintiff, and so injure the plaintiff, it is actionable, but where he injures the plaintiff, by maliciously preventing a person from entering into a contract which he would otherwise have entered into, it is not actionable."

A careful examination of the facts and of the opinion of Mr. Justice Brewer in Angle v. Chicago, St. Paul, etc., Ry., supra, discloses a number of elements found in this record. Without undertaking to set the facts out in full, they are substantially as follows: A corporation, called in the opinion the Portage Company, had procured a legislative grant for valuable lands, in consideration of its undertaking to construct a railroad. A contract was made with, and was in process of performance by, Angle for the construction of the road. A rival corporation, called in the opinion the Omaha Company, by bribery and other corrupt means, persuaded the Legislature of Wisconsin to repeal the act granting the lands to the Portage Company and grant them to itself, thereby preventing the Portage Company from carrying out its contract with Angle, and thereby inflicting heavy loss upon him. The learned justice says:

"That this was a wrongful interference on the part of the Omaha Company, and that it resulted directly in loss to the contractor and the Portage Company, is apparent. It is not an answer to say that there was no certainty that the contractor would have completed his contract, and so earned these lands for the Portage Company. If such a defense were tolerated, it would always be an answer, in case of any wrongful interference with the performance of a contract, for there is always a lack of certainty. It is enough that there should be, as there was here, a reasonable assurance, considering all the surroundings, that the contract would be performed in the manner and within the time stipulated, and so performed as to secure the land to the company. It certainly does not lie in the mouth of a wrongdoer, in the face of such probabilities as attend this case, to say that perhaps the contract would not have been completed, even if no interference had been had, and that therefore, there being no certainty of the loss, there is no liability."

To the suggestion that the Legislature of Wisconsin had the right and power to revoke the grant, and that, as between it and the Portage Company, it must be conclusively presumed that the Legislature was justified in doing so, that the question of the reason which prompted it to do so was not open to the Portage Company, etc., Judge Brewer says:

"Assuredly it does not lie in the power of the wrongdoer, the party whose wrongs created that condition which induced the legislative forfeiture, to excuse its wrongs on the ground that the Legislature had the power to forfeit, and might have done it any way."

The learned justice cites the cases of Benton v. Pratt, 2 Wend. (N. Y.) 385, 20 Am. Dec. 623, and Rice v. Manley, 66 N. Y. 85, 23 Am. Rep. 30, stating briefly the facts, and saying:

"The point was made that the plaintiff could not recover because there was no binding contract between him and the third parties, but the point was overruled."

After citing other authorities, he says:

"The same line of thought applies to the case before us. While it cannot be affirmed with certainty that the Legislature would not have passed the act of forfeiture, yet it is reasonable to presume that it would not, and that its act was induced by the situation of the Portgage Company, which situation was brought about by the wrongful acts of the Omaha Company."

Assuming that to maliciously prevent the making of a contract is within the same principle, in respect to the remedy, as the interference with the performance of a contract, very much that is said in the Angle Case has a substantial bearing upon the case before us.

[2] In passing upon an exception to an instruction directing a verdict, the evidence is to be considered in the light most favorable to the plaintiff, and, where there is contradiction between witnesses in regard to a material question, it must be taken that the jury would have accepted the testimony of plaintiff's witnesses as true. In other words, a request by the defendant for an instruction directing a verdict is to be tested by the same rules as a demurrer to the evidence. Parks v. Ross, 11 How. 362, 13 L. Ed. 730; Oscanyan v. Arms Co., 103 U. S. 264, 26 L. Ed. 539. We must, therefore, in passing upon the instruction given, take the testimony in the light most favorable to plaintiff, with all such inferences as a jury might reasonably have drawn therefrom.

[3] Considered from this viewpoint, we have this case: Competitive bids were made by the Chemical Company and the defendant Bloede Company to furnish "5 Black No. 1" as described in the specifications. Van Dyck, the ink maker, gave to the Chemical Company's sample the highest rating and reported that the price fixed was the lowest. This report was made to, and accepted by, the Director of the Bureau, with the public statement that the contract would be given to the Chemical Company, with the right reserved to call for a hundred pound sample. This is the uncontradicted testimony. The Chemical Company was ready, willing, and able to comply with this requirement, and to furnish the sample and such guaranty of the ink as might be called for in accordance with its bid. It is testified, without contradiction, that the committee of three appointed "to classify and arrange proposals" was composed of persons who were not chemists, and relied on Van Dyck for all reports in awarding the bids. The rejection of a bid depended upon Van Dyck, and if no report was made the committee "would have to take the lowest bidder.' Steinbrenner, a member of the committee, says:

"The committee relied on Mr. Van Dyck for everything in the chemical line in the ink-making division, he being a chemist, and we not being chemists, and he also being a practical ink maker, I understand, and we had to rely upon him for all reports and the awarding of the bids. Have never known the report of the committee to be rejected by the Director of the Bureau."

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This witness had been in the Bureau 17 years. The bids were opened May 7, 1901. The committee of three were duly appointed, and, on May 25, 1901, Van Dyck writes to the Director, saying:

"I have made up a Hard Black No. 17 into a note ink, and have completed a very thorough practical press trial, and find it satisfactory in every par ticular," etc.

On May 27, 1901, he writes:

"Inasmuch as the so-called C. P. Black No. 1 now in use has given considerable trouble during the last year in the working quality of the note and revenue inks, and also has certain properties which tend to make the notes printed with it less desirable than they should be, I respectfully recommend that all bids on this item be rejected, and that the blacks designated as 'Item #6, No. 2,' and 'Item 7, Hard Black' and 'No. 8, Soft Black,' be used during the year beginning July 1, 1901, in such proportion as may best subserve the interest of the Bureau."

These two letters are attached to the report of the committee of three, and "C. P. Black No. 1," for which the Chemical Company had made its bid, and upon which Van Dyck had reported in its favor, and upon which report the Director had stated it would receive the contract, was rejected, and it was stated "the article will not be required"; and, by the same report, "No. 7, Hard Black, Bidder Victor G. Bloede Company, at 45 cents (sample B) accepted." It was also in evidence, uncontradicted, that the approval by the Secretary of the Treasury of the report of the committee of three was a matter of form—that it followed as a matter of course. The first essential step in the proof required that plaintiff should show, or, for the present purpose, introduce, evidence from which, if believed by the jury, it might reasonably be inferred that it was about to make the contract, and would have done so but for the interference of Van Dyck. Does not this undisputed evidence justify the inference that there was a reasonable assurance, considering all the surroundings, that a contract would have been made by the government with the Chemical Company for furnishing the ink-or black-but for the letters of Van Dyck? This was, at least, a question for the jury.

[4] Conceding that the jury may have so found, the plaintiff must go forward with his proof, and show-that is, produce evidence from which the inference might reasonably be drawn-that the interference by Van Dyck was malicious, and that defendant Bloede was a party to, or by corrupt means procured, such interference. It will be well to keep in mind the fact that the word "malicious," used in this connection, does not import personal ill will towards the Chemical Company. If the interference be with the design of injuring the plaintiff, or gaining some advantage at its expense, it is maliciously done. The testimony relating to the conduct of Van Dyck and of Bloede, in connection with the origin and discovery, or invention, of the process for making of "Hard Black 7," is interesting and somewhat contradictory. It seems that the Bloede Company had, for several years, furnished "5 Black No. 1," and that it had proven "unsatisfactory." Whether this was because of the quality of the black furnished by the Bloede Company, or because of some inherent defect in the ink, does not

clearly appear. There is evidence, coming from Van Dyck and Bloede, that experiments had been made, at the request of the Assistant Secretary of the Treasury, by Van Dyck, for the purpose of producing an ink or black to meet the complaints made by the printters of "5 Black No. 1." The evidence in regard to the making up of the specifications for 1901 is contradictory. Van Dyck says that he had nothing to do with it. Ferguson, who made up the specifications, says that he conferred with Van Dyck about getting up these specifications, as well as with other chiefs of division about other kinds of material; that he had no doubt that he conferred with Van Dyck about the forms of specifications of item 5 and item 7 in the specification of 1901-he does not particularly recall about this item; that it was made up at the instigation of Mr. Sullivan, etc. leaves the question in some confusion.

He

In view of the fact that the theory upon which plaintiff's case is based, that a conspiracy or agreement existed between Van Dyck and Bloede to prevent the use by the Bureau of No. 5 Black, and supplant it with No. 7 Hard Black, every act of the parties in connection with, or bearing upon, the result which was finally brought about, becomes material. The form of specification was unusual-had not been used before-and while, by itself, of no special significance, when taken in connection with the series of acts and transactions which followed, might very naturally make an impression on the minds of a jury, if they should find that Van Dyck had knowledge of and suggested the language used. The significance of the language of the specification, in view of the fact that it had never been used before, is heightened, if the jury should accept Hopkins' statement that he was told what the specifications would be before they were sent out:

"That they were going to specify for a black that could be used without admixture; that they would use just one black, so we would mix them over here, and when the specifications came out they would be so worded that our mixture would fill the bill and get the contract."

This is denied by Bloede, but its truth was a question for the jury. No sample of No. 7 Hard Black, was sent out with the specification. In regard to the making of "7 Hard Black," the testimony of Van Dyck and Bloede appears to be, in many material respects, contradictory. Their theory is: That, at the request of the Secretary of the Treasury, Van Dyck made experiments, and that Bloede was, at the same time, carrying on a system of experiments in connection with the Bureau. These experiments resulted in the discovery, or invention, by Van Dyck of an ink which found its way into the specifications for 1901 as "7 Hard Black," etc. That, upon completing the process, Van Dyck wrote à letter to Bloede which is not in evidence. That, in reply to that letter, Bloede wrote Van Dyck February 19, 1901. From this letter it is manifest that negotiations had theretofore been had between the parties and that there was "a difference in their views." The question of "policy or morals" was raised by Bloede, with the suggestion that Van Dyck procure the consent of Mr. Vanderlip to the proposed transaction. On February 20, 1901, Van Dyck writes Bloede: