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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 un- missed. less their conclusions are absolutely free

from error."

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.

Charles THIBODEAU, Appt.,

บ.

Herbert L. HILDRETH.

(124 Fed. 892.)

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. Gor

Ct. Rep. 632; Johnson v. Shrewsbury & B. R. Co. 3 DeG. M. & G. 914; Meissner v. Buek, 28 Fed. 161.

A contract by one about to enter another's employ for the purpose of improv-mully, 144 U. S. 224, 36 L. ed. 414, 12 Sup. ing machinery used in the latter's business. that the employer shall have the benefit of all inventions made by him during the term of the employment, and that, in case patents shall not be applied for, the employee shall keep the information forever secret, is not unconscionable, nor against public policy, and may be enforced.

(June 19, 1903.)

APPEAL by defendant from a decree of the

Circuit Court of the United States for the District of Massachusetts dismissing his cross bill, which sought the cancelation of a contract which the bill was filed to enforce. Affirmed.

The case sufficiently appears in the opin

ion.

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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.

The Hildreth agreement in question is a naked assignment in gross of a man's future 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

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.

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 serv

ice 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 Alexander P. Browne for appellee.

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

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,

For contracts respecting secrets as unlawful restraint of trade, see note to Gamewell Fire shaping, cutting, wrapping, and packing,

Alarm Teleg. Co. v. Crane, 22 L. R. A. 674.

also the pulling of molasses candy, and

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 Hildreth v. Thibodeau, 117 Fed. 146. of constructing, improving, and perfecting Reasonably interpreted, the contract prosuch machinery: Now, therefore, in consid- vided that Hildreth should take the benefit eration of such employment, and of the pay- and enjoyment of all those inventions and ment of wages to me at the rate of ($3.25) improvements relating to machines used in three dollars and twenty-five cents per day, Hildreth's business which Thibodeau might I hereby agree with said Hildreth to enter make while employed by Hildreth. The emhis employ, and that I will give him my best ployment might be ended at any time, either services, and also the full benefit and enjoy-by Hildreth or by Thibodeau, and inventions ment of any and all inventions or improve thereafter made by Thibodeau would belong ments 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.

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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.

MONTANA SUPREME COURT.

Charles M. BAIR, Respt.,

v.

Henry STRUCK, Appt.
(........Mont.........)

1. A deputy sheep inspector, who, un-
der a proclamation of the governor that cer-
tain 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 in-
gredients 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 admis-
sible that no sheep were killed by using the
same solution under similar circumstances
upon flocks of other persons, where there is

ΑΙ

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;

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Pearson v. Zehr, 138 Ill. 48, 32 Am. St. Rep. 113, 29 N. E. 854; Newark & S. O. Horse Car R. Co. v. Hunt, 50 N. J. L. 308, 12 Atl. 697; People ex rel. Copcutt v. Board of 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.

The governor, in deciding that all sheep imported into the state should be dipped, acted in a judicial capacity. The defendant, however, in performing the duty imposed upon him, acted in a ministerial capacity.

McCord v. High, 24 Iowa, 336; Mechem, Pub. Off. § 782; 23 Am. & Eng. Enc. Law, 2d ed. p. 377; Hicks v. Dorn, 42 N. Y. 47; Hatcher v. Dunn (Iowa) 66 N. W. 905; Cubit v. O'Dett, 51 Mich. 347, 16 N. W. 679; Johnston v. District of Columbia, 118 U. S. 19, 30 L. ed. 75, 6 Sup. Ct. Rep. 923; Chicago v. Seben, 165 Ill. 371, 56 Am. St. Rep. 245, 46 N. E. 244; Aaron v. Broiles, 64 Tex. 316, 53 Am. Rep. 764; Olmsted v. Dennis, 77 N. Y. 378.

Whenever a public officer delegated to exercise the police power of the state, through negligence or an error in judgment, exceeds the authority conferred by the statute, and injures or destroys property, he is a naked trespasser, and liable to the injured party. Pearson v. Zehr, 138 Ill. 48, 32 Am. St. Rep. 113, 29 N. E. 854; Miller v. Horton, 152 Mass. 540, 10 L. R. A. 116, 23 Am. St. Rep. 850, 26 N. E. 100; People ex rel. Copcutt v. Board of Health, 140 N. Y. 1, 23 L. R. A. 481, 37 Am. St. Rep. 522, 35 N. E. 320; Newark & S. O. Horse Car R. Co. v. Hunt, 50 N. J. L. 308, 12 Atl. 697; Markham v. Brown, 37 Ga. 277, 92 Am. Dec. 73. Where part of an offer is objectionable, it is not error to reject the entire offer. The entire offer is subject to the objection that it does not appear therefrom that the dip used on other occasions was composed of the same ingredients and mixed in the same proportions as that used in dipping the plaintiff's sheep.

Greenl. Ev. § 52; Medsker v. Pogue, 1 Ind. App. 197, 27 N. E. 432; Atkinson v. Goodrich Transp. Co. 69 Wis. 5, 31 N. W. 164; Branch v. Libbey, 78 Me. 321, 57 Am. Kep. 810, 5 Atl. 71; Clark v. Willett, 35 Cal. 534; Burgess v. Davis Sulphur Ore Co. 165 Mass. 71, 42 N. E. 501; Lucia v. Meech, C8 Vt. 175, 34 Atl. 695; Cleveland, C. C. & 1. R. Co. v. Wynant, 114 Ind. 525, 5 Am. St. Rep. 644, 17 N. E. 118; Hudson v. Clacago & N. W. R. Co. 59 Iowa, 581, 44 Am. Rep. 692, 13 N. W. 735; Parker v. Portland Pub. Co. 69 Me. 173, 31 Am. Rep. 262; Mathews v. Cedar Rapids, 80 Iowa, 459, 20 Am. St. Rep. 436, 45 N. W. 894.

the plaintiff was the owner of 150 head of Merino bucks, which had lately been imported into this state from the state of Oregon; that the defendant was deputy sheep inspector for Yellowstone county, and as such took the sheep from the possession of the plaintiff, and subjected them to certain quarantine regulations; that none of the sheep were diseased; that the defendant wrongfully and negligently prepared the materials used for dipping the sheep, and put therein carbolic acid or other poisonous matters in such quantities that 69 head of said sheep were killed, and the remaining 81 so badly injured as to render them unfit for breeding purposes, for which they were purchased. The prayer of the complaint was for $2,100 damages. The defendant admitted in his answer that he was deputy sheep inspector, and that as such he dipped the sheep in question on August 20, 1899, and denied the other material allegations of the complaint. By way of an affirmative defense, the defendant alleged that the dipping of the sheep in question was done by him under and by virtue of a quarantine proclamation issued by the governor of Montana on April 15, 1899. The cause was tried to a jury, which returned a verdict in favor of the plaintiff for $1,055.50, and from the judgment entered for the amount of the verdict and costs, and from an order denying the defendant a new trial, these appeals are taken.

In the appellant's brief only two propositions are argued: (1) Does the complaint state a cause of action? And (2) Did the court err in excluding a certain offer of proof made by the defendant, and in sustaining objections to certain questions asked the defendant?

1. It is earnestly contended that the complaint shows on its face that, in the discharge of his duties, the defendant acted as a quasi judicial officer, and therefore is not liable for damages arising from his negligence, and would only be liable for such damages as were occasioned by his wilful or wauton misconduct, and no such misconduct is alleged. Such portions of the Political Code as are applicable to the facts of this case read as follows:

"Sec. 3034. Whenever the governor, by proclamation, quarantines for inspection, as provided in the next section, any sheep brought into Montana, the deputy inspector of the county in which such sheep may come, must immediately inspect the same,

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

This action was commenced by the plaintiff, Bair, to recover damages from the defendant for injury to personal property.'

scab, or any other infectious disease, he must cause the same to be held within a certain limit or place in his said county, to be defined 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."

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 judgment in selecting materials to be used and the manner of their use does not change the character of their acts from ministerial to judicial or quasi judicial ones. Experience teaches that few, if any, ministerial officers are not called upon to exercise some judgment or discretion in the performance of their official duties. But, if the contention of the appellant be sustained, the distinction between ministerial and quasi judicial acts is practically abolished. As distinguishing between acts quasi judicial and acts ministerial in their character, the following definitions we think correctly state the law: "Quasi judicial functions are those which lie midway between the judicial and ministerial ones. The lines separating them from such as are thus on their two sides are necessarily indistinct; but, in general terms, when the law, in words or by implication, commits to any officer the duty of looking into facts, and acting upon them, not in a way which it specifically directs, but after a discretion in its nature judicial, the function is termed quasi judicial." Mechem, Pub. Off. § 637; Bishop, Non-Contract Law, §§ 785, 786. rests in judgment or discretion, so that it is of a judicial nature or character, but does not involve the exercise of the functions of a judge, or is conferred upon an officer other than a judicial officer, the expression used is generally 'quasi judicial.' officer may not, in strictness, be a judge; still, if his powers are discretionary, to be exerted or withheld according to his own view of what is necessary and proper, they are in their nature judicial.” Throop, Pub. Off. §§ 533, 534. “A ministerial act may, perhaps, be defined to be one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety of the act done.” Id. § 537; Flournoy v. Jeffersonville, 17 Ind. 169, 79 Am. 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

Acting under the authority of these sections, the governor of Montana, on April 15, 1899, issued a proclamation, the pertinent portions of which read as follows: "Whereas, I have reason to believe that conditions exist which render the class of sheep herein designated rams, or bucks, or stock sheep, when brought into this state, liable to convey the disease known as 'scab,' it is herchy ordered that all rams, or bucks, or stock sheep, imported into the state of Montana, from any other state or territory of the United States or foreign countries whatsoever, must, when shipped, be loaded at point of starting into properly disinfected car or cars, and shipped in such properly disinfected car or cars into this state, where, upon arrival at the state line of Montana, or the closest available point thereto where the sheep are to be unloaded to be driven to destination in the state, and before being turned upon the public domain or upon private premises, and all rams, bucks, or stock sheep driven into or through any portion of this state from any adjoining state or country, avoiding all quarantine yards and areas, shall be held at such point or points as may be hereinafter designated and there dipped under the supervision of the state veterinarian through the deputy sheep inspector of the county into which the sheep are to remain, and said sheep shall be dipped in some recognized and reliable dip known to be efficient in the cure of scab, twice, the second dip to occur within ten days or between ten and twelve days after the first dipping." Under the foregoing provisions it was made the duty of the governor to determine what sheep, not themselves diseased, should be quarantined, and to prescribe the quarantine regulations. In doing so he doubtless acted in a quasi judicial capacity, and, having once determined that fact, and having prescribed such regulations in his proclamation, the only duty devolving upon the defendant was to carry such regulations into effect.

"Where a power

The

charge 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. . . In the disment 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 im- Q. You may state if the dip and the water perative duty, and, if he had neglected to used in the dipping of these sheep of Holperform it, he would have been liable civillyling's and William Clanton's just prior to

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 same with water he substantially did in those other cases as he did in this instance; that the dipping of those other sheep was in

the vat 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 in the same proportions as was used in 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?

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