general law cannot be reviewed on the the- | down, and the writ of error must be disory that the law of the land is violated unless their conclusions are absolutely free

from error."

missed.

McKenna, J., took no part in the deci

This case comes within the rule there laid sion of this case.

UNITED STATES CIRCUIT COURT OF APPEALS, FIRST CIRCUIT.

Argued before Putnam, Circuit Judge, and Brown and Lowell, District Judges. Messrs. John S. Richardson and William Quinby, for appellant:

Cancelation should be granted under cross bill when the contract is a "menace," or there is "danger" that it may be used to harass parties seeking cancelation.

Story, Eq. Pl. § 391; Story, Eq. Jur. § 694; San Diego Flume Co. v. Souther, 32 C. C. A. 548, 61 U. S. App. 134, 90 Fed. 164; Richards v. Todd, 127 Mass. 167.

Brake Co. v. Chicago Brake & Mfg. Co. 85 Fed. 786; McFarland v. Stanton Mfg. Co. 53 N. J. Eq. 649, 51 Am. St. Rep. 647, 33 Atl. 962; Montgomery Palace Stock Car Co. v. Street Stable Car Line, 142 Ill. 315, 31 N. E. 434; Allison Bros. v. Allison, 144 N. Y. 21, 38 N. E. 956; Pope Mfg. Co. v. Gormully, 144 U. S. 224, 36 L. ed. 414, 12 Sup. Ct. Rep. 632; Johnson v. Shrewsbury & B. R. Co. 3 DeG. M. & G. 914; Meissner v. Buek, 28 Fed. 161.

The Hildreth agreement is not mutual, and therefore not enforceable in equity.

Duvall v. Myers, 2 Md. Ch. 401; Richards v. Green, 23 N. J. Eq. 536; Rutland Marble Co. v. Ripley, 10 Wall. 339, 19 L. ed. 955.

The Hildreth agreement is a mere service contract, and not enforceable in equity.

Wollensak v. Briggs, 20 Ill. App. 50; Davis v. Foreman [1894] 3 Ch. 654; Whitwood Chemical Co. v. Hardman [1891] 2 Ch. 416; Karrick v. Hannaman, 168 U. S. 328, 42 L. ed. 484, 18 Sup. Ct. Rep. 135; Pom. Spec. Perf. p. 67, § 48; Kennicott v. Leavitt, 37 III. App. 435; Stocker v. Brockelbank, 3 Macn. & G. 250; Mair v. Himalaya Tea Co. L. R. 1 Eq. 411; Johnson v. Shrewsbury & B. R. Co. 3 DeG. M. & G. 914.

Affirmative relief may be had under cross

bills.

Morgan Envelope Co. v. Walton, 30 C. C. A. 383, 58 U. S. App. 30, 86 Fed. 605; Stimpson Computing Scale Co. v. W. F. Stimpson Co. 44 C. C. A. 241, 104 Fed. 893; San Diego Flume Co. v. Souther, 32 C. C. A. 548, 61 U. S. App. 134, 90 Fed. 164; Richards v. Todd, 127 Mass. 167.

Messrs. Causten Browne and Alexan

The Hildreth agreement in question is a naked assignment in gross of a man's future der P. Browne for appellee. labors, a "mortgage on a man's brain," and therefore, unconscionable and unenforceable. Aspinwall Mfg. Co. v. Gill, 32 Fed. 697; Dalzell v. Dueber Watch Case Mfg. Co. 149 U. S. 315, 37 L. ed. 749, 13 Sup. Ct. Rep. 886; Independent Electric Co. v. Jeffrey Mfg. Co. 76 Fed. 981; Westinghouse Air

Lowell, District Judge, delivered the opinion of the court:

NOTE. For the somewhat similar question of validity of contract by employee not to disclose secrets imparted to him by his employer, see O. & W. Thum Co. v. Tloczynski, 38 L. R. A. 200.

For contracts respecting secrets as unlawful restraint of trade, see note to Gamewell Fire Alarm Teleg. Co. v. Crane, 22 L. R. A. 674.

Hildreth brought a bill in equity against Thibodeau to enforce the provisions of the following contract:

Whereas, Herbert L. Hildreth, of Boston, candy manufacturer, is desirous of having perfected and manufactured a certain machine or machines for use in the manufacture of candy, and especially for sizing, shaping, cutting, wrapping, and packing, also the pulling of molasses candy, and

Hildreth v. Thibodeau, 117 Fed. 146.

whereas I, Charles Thibodeau, being a fraud. The circuit court dismissed both skilled mechanic, and desirous of entering bill and cross bill, for the reasons set out in the employ of said Hildreth for the purpose of constructing, improving, and perfecting such machinery: Now, therefore, in consideration of such employment, and of the payment of wages to me at the rate of ($3.25) three dollars and twenty-five cents per day, I hereby agree with said Hildreth to enter his employ, and that I will give him my best services, and also the full benefit and enjoy ment of any and all inventions or improvements which I have made or may hereafter make relating to machines or devices pertaining to said Hildreth's business. I also further agree that should said Hildreth not desire to patent any of said inventions or improvements, but to keep the same secret, I will do all in my power to assist him in this, and will not disclose any information as to the same, or any of them, except at the request of the said Hildreth.

Signed at Boston, Mass., this 29th of
May, 1897.
Charles Thibodeau.

In particular the bill sought a conveyance by Thibodeau to Hildreth of a certain invention named therein, and of an application to patent the same, to which conveyance the bill alleged that Hildreth was entitled by virtue of the contract. Thibodeau filed a cross bill, asking for the delivery up and cancelation of the contract, on the ground that it was unconscionable, and obtained by

Reasonably interpreted, the contract provided that Hildreth should take the benefit and enjoyment of all those inventions and improvements relating to machines used in Hildreth's business which Thibodeau might make while employed by Hildreth. The employment might be ended at any time, either by Hildreth or by Thibodeau, and inventions thereafter made by Thibodeau would belong to him, and would not be covered by the contract. By the contract Thibodeau further agreed, if required to do so by Hildreth, to keep secret forever all the inventions which he made while in Hildreth's employment. As to these inventions, Thibodeau's agreement was perpetual, and it continues to bind him, notwithstanding his employment has been ended. This contract is neither unconscionable nor against public policy. Such an agreement is not uncommonly made by an employee with his employer, and it may be necessary for the reasonable protection of the employer's business.

The evidence fails to show that the contract was obtained by fraud or misrepresentation, and the cross bill cannot be supported on that ground.

The decree of the Circuit Court is affirmed, and the appellee recovers his costs of appeal.

1.

MONTANA SUPREME COURT.

A deputy sheep inspector, who, under a proclamation of the governor that certain sheep shall be quarantined and dipped for disinfection, attempts to do the dipping, acts in a ministerial capacity, and is liable for injuries caused by negligently dipping the sheep in an improper bath; and the fact that he has some discretion as to the ingredients of the bath is immaterial.

2. In an action to recover damages for dipping sheep in an unsuitable solution, so that some died and others were permanently injured, evidence is not admissible that no sheep were killed by using the same solution under similar circumstances upon flocks of other persons, where there is

A

PPEAL by defendant from a judgment of the District Court for Yellowstone County in favor of plaintiff in an action brought to recover damages for injuries to sheep alleged to have been caused by defendant's negligence. Affirmed.

The facts are stated in the opinion. Messrs. C. B. Nolan and James R. Goss for appellant.

Messrs. O. F. Goddard and M. S. Gunn, for respondent:

Where, in the exercise of the police power of the state, private property is destroyed, unless the conditions actually exist which, by virtue of the law, authorize its destruction, the officer exercising the power acts in excess of his jurisdiction and is liable.

Miller v. Horton, 152 Mass. 540, 10 L. R.

no attempt to show that such other sheep A. 116, 23 Am. St. Rep. 850, 26 N. E. 100;

were not injured.

(November 2, 1903.)

Pearson v. Zehr, 138 Ill. 48, 32 Am. St. Rep. 113, 29 N. E. 854; Newark & 8. O. Horse Car R. Co. v. Hunt, 50 N. J. L. 308, 12 Atl. NOTE. AS to liability of officers for minis-697; People ex rel. Copcutt v. Board of

terial acts, see also Robinson v. Rohr, 2 L. R. A. 366, and cases in note to Bates v. Horner,

22 L. R. A. 825.

Health, 140 N. Y. 1, 23 L. R. A. 481, 37 Am.
St. Rep. 522, 35 N. E. 320; Beers v. Board

of Health, 35 La. Ann. 1132, 48 Am. Rep. | The complaint alleges that in August, 1899, 256; Markham v. Brown, 37 Ga. 277, 92 Am. Dec. 73.

Holloway, J., delivered the opinion of and, if he finds that they are infected with the court:

scab, or any other infectious disease, he must This action was commenced by the plain- cause the same to be held within a certain tiff, Bair, to recover damages from the de- limit or place in his said county, to be defendant for injury to personal property.' fined by him, until such disease has been

“Sec. 3035. Whenever the governor has reason to believe that any disease mentioned by this article has become epidemic in certain localities in any other state or territory, or that conditions exist that render sheep likely to convey disease, he must thereupon, by proclamation, designate such localities, and prohibit the importation from them of any sheep into this state, except under such restrictions as he, after consultation with the veterinary surgeon, may deem proper."

Expe

eradicated, as provided in the next preced-|nized and reliable dip, known to be efficient ing section. in the cure of scab"-the defendant was cailed upon to exercise his judgment and discretion in determining the material to be used and the method of its application, and in this he acted in a quasi judicial capacity. With this contention we cannot agree. The law contemplates that only men who, by their skill and experience, are competent, shall be appointed such deputies, and invested with the duty of carrying into execution this police power of the state. The mere fact that such officers are called upon to exercise some discretion or Acting under the authority of these sec- judgment in selecting materials to be used tions, the governor of Montana, on April and the manner of their use does not change 15, 1899, issued a proclamation, the perti- the character of their acts from ministerial nent portions of which read as follows: to judicial or quasi judicial ones. "Whereas, I have reason to believe that con- rience teaches that few, if any, ministerial ditions exist which render the class of sheep officers are not called upon to exercise some herein designated rams, or bucks, or stock judgment or discretion in the performance sheep, when brought into this state, liable of their official duties. But, if the contento convey the disease known as 'scab,' it is tion of the appellant be sustained, the dishereby ordered that all rams, or bucks, or tinction between ministerial and quasi justock sheep, imported into the state of Mon- dicial acts is practically abolished. As distana, from any other state or territory of tinguishing between acts quasi judicial and the United States or foreign countries what- acts ministerial in their character, the folsoever, must, when shipped, be loaded at lowing definitions we think correctly state point of starting into properly disinfected the law: "Quasi judicial functions are car or cars, and shipped in such properly those which lie midway between the judidisinfected car or cars into this state, cia! and ministerial ones. The lines sepawhere, upon arrival at the state line of rating them from such as are thus on their Montana, or the closest available point two sides are necessarily indistinct; but, in thereto where the sheep are to be unloaded general terms, when the law, in words or by to be driven to destination in the state, and implication, commits to any officer the duty before being turned upon the public domain of looking into facts, and acting upon them, or upon private premises, and all rams, not in a way which it specifically directs, bucks, or stock sheep driven into or through but after a discretion in its nature judicial, any portion of this state from any adjoin- the function is termed quasi judicial." ing state or country, avoiding all quaran- Mechem, Pub. Off. § 637; Bishop, Non-Contine yards and areas, shall be held at such tract Law, §§ 785, 786. "Where a power point or points as may be hereinafter des- rests in judgment or discretion, so that it is iguated and there dipped under the super- of a judicial nature or character, but does vision of the state veterinarian through the not involve the exercise of the functions of deputy sheep inspector of the county into a judge, or is conferred upon an officer other which the sheep are to remain, and said than a judicial officer, the expression used sheep shall be dipped in some recognized is generally 'quasi judicial.' . . The and reliable dip known to be efficient in the officer may not, in strictness, be a judge; eure of scab, twice, the second dip to occur still, if his powers are discretionary, to be within ten days or between ten and twelve exerted or withheld according to his own days after the first dipping." Under the view of what is necessary and proper, they foregoing provisions it was made the duty are in their nature judicial." Throop, Pub. of the governor to determine what sheep, Off. §§ 533, 534. "A ministerial act may, not themselves diseased, should be quaran- perhaps, be defined to be one which a person tined, and to prescribe the quarantine regu- performs in a given state of facts, in a prelations. In doing so he doubtless acted in scribed manner, in obedience to the mandate a quasi judicial capacity, and, having once of legal authority, without regard to or the determined that fact, and having pre-exercise of his own judgment upon the proscribed such regulations in his proclamation, priety of the act done." Id. § 537; Flourthe only duty devolving upon the defendant noy v. Jeffersonville, 17 Ind. 169, 79 Am. was to carry such regulations into effect.

Dec. 468; Pennington v. Streight, 54 Ind. But it is contended that under the pro- 376. "In the same line, a ministerial act visions of the governor's proclamation has also been defined as 'an act performed in "said sheep shall be dipped in some recog-a prescribed manner, in obedience to the

In the discharge of this duty, thus imperatively imposed upon him by law, he acted ministerially. It is true that he was bound to exercise his discretion as to the methods and instrumentalities to be employed, and this is true of all ministerial officers; and yet it has never been held that, merely because ministerial officers have a discretion to exercise, that gives them the immunity of judicial officers. In this case, then, the defendant was bound to discharge his ministerial duties in a prudent, careful manner, without infringing upon the rights of private individuals, or unnecessarily injuring them, and for an improper discharge of his duty the law makes him liable to the individual injured." The question involved in this controversy is not whether the policy adopted was wise, but whether a wrong was done in the details of its execution. We are of the opinion that in the discharge of his duty the defendant acted in a ministerial capacity only.

law or the mandate of legal authority, with- | for damages sustained by any person from out regard to, or the exercise of, the judg- his neglect of duty. ment of the individual upon the propriety of the acts being done.'" Mechem, Pub. Off. § 657. An act is not necessarily taken out of the class styled "ministerial" because the officer performing it is nevertheless vested with a discretion respecting the means or the method to be employed. Such is not the judgment or discretion which is an essential element of judicial action. McCord v. High, 24 Iowa, 336; Grider v. Tally, 77 Ala. 422, 54 Am. Rep. 65; Mechem, Pub. Off. § 658; 23 Am. & Eng. Enc. Law, 2d ed. p. 377. The same doctrine is announced in Hicks v. Dorn, 42 N. Y. 47. In this case the plaintiff, Hicks, was the owner of a canal boat, and the defendant was the superintendent of repairs in charge of one section of the Erie canal. Along this canal was a dry dock, into which plaintiff's boat had been taken for repairs. In May, 1865, there was a violent spring rain which raised the water in the canal to such an extent that in some places it ran over the banks, and it became necessary to open the waste gates connected with the dry dock to let off the surplus water. The captain commenced moving the boat into the canal, and when about half way through the gates in the canal, the water having run rapidly out of that compartment of the dry dock, the boat was left resting upon the sill of the waste gate, about one half of the boat extending into the canal and the other half in the dry dock. In order to render the canal navigable, it became necessary to move the boat; and several methods for the accomplishment of this purpose were open to the superintendent, one of which was cutting up and removing the boat so as to close the gates, and this method he pursued as the most expeditious for accomplishing his purpose. An action having been brought against him by the owner of the boat, among other defenses set up was that in performing his duties the defendant had acted in a quasi judicial capacity, and could not be held liable except for wanton misconduct on his part. In disposing of this contention the court said: "It is claimed that the defendant in determining to remove this boat, and in the removal of it, had a judicial discretion to exercise; and hence that he is not liable, in a civil action, for the manner in which he exercised this discretion. I am unable to see in what sense the defendant, as to this transaction, acted judicially. The law made it his duty to put this canal in repair, . . and it was not left to his discretion to determine whether he would discharge that duty or not. The law made it an imperative duty, and, if he had neglected to perform it, he would have been liable civilly

2. Upon the trial the defendant in his own behalf made the following offer of proof, which, upon objection, was excluded: "We desire to show by this witness that no different character of dip is used in which to dip Merino bucks as contradistinguished from ewes or wethers; that the dip in question is a staple in the market for the purposes for which it is used, and is sold in the open market for such purposes, and sold under a certain specific name and brand; that before and after the month of August, 1899, the defendent, as deputy sheep inspector, used the same character of dip, so far as he could tell by brand and selling mark, in which to dip sheep generally; that he used this dip so purchased in proportions such as were used in the instance of the Bair bucks, and that in the admixture of the those other cases as he did in this instance; same with water he substantially did in that the dipping of those other sheep was in the rat in which the bucks in question were dipped; and that no fatal results followed from the dipping of those sheep in substantially the same manner and in the dip made was used in in the same proportions as this instance." Afterwards the following questions were asked the witness, and objections to them were sustained:

Q. Was the dip that was used in the dipping of Mr. Bair's sheep the same dip as was used in the dipping of these other sheep?

Q. You may state if the dip and the water used in the dipping of these sheep of Holling's and William Clanton's just prior to