THE OPEN MARKET put in Delz v. Winfree, 80 Tex. 400, where the cause of action stated in the petition was that several had induced others not to sell to the petitioner live animals for cash, whereby he was greatly injured in his busi ness as butcher. Associate Justice Henry said in part: "The appellee also asserts the following proposition, which may be conceded to be correct: 'A person has an absolute right to refuse to have business relations with any person whomsoever, whether the refusal is based upon reason or is the result of whim, caprice, prejudice, or malice, and there is no law which forces a man to part with his title to his property.' The privilege here as serted must be limited, however, to the in dividual action of the party who asserts the right. It is not equally true that one person may from such motives influence another person to do the same thing." Granted that we have under discussion a case of pure business motive, not of personal spite, it becomes a question, therefore, what course of action shall be justified, and what methods shall be held to be opposed to pub lic policy. An excellent recent case -attacks the problem upon that basis — Bailey v. Master Plumbers' Association, 103 Tenn. 99. This was one of the typical cases : the de fendants, members of an association with by-laws forbidding its members to purchase from dealers who sold to outsiders, the plain tiff, one forced out of business by this sort of competition. And whether this is fair or unfair competition is the question. So that the relation of the particular legal problem to general industrial policy is again involved. The court — Mr. Justice Caldwell writ ing the opinion — say in one place: "It is entirely true that, in the first instance, each member of the association had a perfect legal right to buy material and supplies ex clusively from any dealer or dealers he might choose, and each dealer had an equal right to select members for his customers, and to confine his sales to them only. These were inherent rights, which no com
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petitor was authorized to dispute, no court empowered to control or curtail. But in our opinion, it does not follow from this un doubted freedom of individual member and individual dealer that all of the members may, as ruled in those cases, lawfully enter into a general and unlimited agreement, in the form of by-laws, that they and all of them will make their purchases from only such dealers as will sell to members exclu sively. The premise does not justify the conclusion. The individual right is radi cally different from the combined action. The combination had hurtful powers and influences not possessed by the individual. It threatens and impairs rivalry in trade, covets control in prices, seeks and obtains its own advancement at the expense and in the oppression of the public." If, then, this is all a matter of justification, the existing law may be explained to those who dissent from the distinctions that are made, by saying that perhaps an individual in competition may be allowed to refuse to deal with those who deal with his rival, while certainly a great combination may not be allowed to use the same method without disturbance of the industrial peace. But is the method the same when there is con certed action and when there is refusal by an individual? It seems the real truth that the very concert gives combined ac tion a higher potentiality for harm than individual action ever can have. Formal logic does not now support the minority view that the combination is as free to act in this way as an individual is. And public policy seems to be with the majority view that the individual trader should be pro tected against the pressure of the combina tion which is directed against his business relations with those who would deal with him. VII By some observers of these cases a dif ference is attempted between the situation just under examination where the coercion of the combination is exercised upon third
