LEWIS v. BLOEDE et al., 202 F. 7

CONNOR, District Judge (after stating the facts as above). The learned judge below having overruled a demurrer to the declaration, it must be taken, for the purpose of disposing of the plaintiff's exception, that a cause of action is stated — that is, a wrongful, unlawful invasion of a legal right, resulting in damage. In the light of the testimony and the statement made by the judge, it must be further taken that the plaintiff’s right to recover rests upon the sufficiency of the evidence to sustain the fifth count in the declaration.

Eliminating all immaterial verbiage, and reducing the pleading to its simplest form, the allegation, in this count, comes to this: The government, acting-through one of its agencies, asked for bids or proposals to furnish certain materials described in the specifications, subject to certain provisions and conditions. Pursuant to this request, the Slingluff & Glacken Chemical Company, defendant Bloede Company, and others submitted proposals to furnish such material, accompanied by sample and price.

Pursuant to the method prescribed by the government’s officers, the Chemical Company’s proposal was considered, in connection with others, and upon such consideration the Chemical Company was “about to have a contract awarded to it under which it would, at great profit to jtself, have furnished a great quantity of said material”; that it was prevented from having — that is, making — such contract by reason of the malicious, unlawful, and corrupt conduct of the defendants, whereby the’ said company sustained great damage, etc.

The recognition, by the courts, both in England and in this country, of the right of action to the party injured by reason of the malicious and wrongful interference by third persons with contract rights, is well. settled. The principle is clearly stated by Justice Brewer in Angle v. Chicago, St. Paul, etc., Ry. Co., 151 U. S. 1, 13, 14 Sup. Ct. 240, 245 (38 L.

Ed. 55), wherein he says: “It has been, repeatedly held that, if one maliciously interfere in a contract between two parties, and induces one of them to break that contract, to the in.iury of the other, the party injured can maintain an action against the wrongdoer.” This is but a recognition and application of the principle: “That whenever a man does

an act which, in law and in fact, is a wrongful act, and such

an act as may, as a natural and probable consequence of it, produce such an injury, an action on the case will lie.” The principle has been applied to a wrongful, malicious interference with an existing contract in Lumley v. Gye, 2 El. & Bl. 216, Bowen v. Hall, 6 Q. B. D. 333, and other cases cited in the plaintiff's brief. In Quinn v. Leatham, A. C. 495 (1901), Lord Macnaghten says: “Speaking for myself, I have no hesitation in saying that I think that the decision (Lumley v.

Gye) was right, not on the ground of malicious intention — that was not, I think, the gist of the action — but on the ground that a violation of a legal right, committed knowingly, is a cause of action, and that it is a violation of legal right to interfere with contractual relations recognized by law, if there be no sufficient justification for the interference.” Mr. Justice Hughes, in Miles Med. Co. v. Park, 220 U. S. 373, 394, 31 Sup. Ct. 376, 379 (55 L.

Ed. 502), recognizes it as “established doctrine that an actionable wrong is committed by one who maliciously interferes with a contract between two parties and induces one of them to break that contract to the injury of the other”- — citing Bitterman v. L. & Nashville R. R., 207 U. S. 205, 28 Sup. Ct. 91, 52 L. Ed. 171, 12 Ann. Cas. 693; Walker v. Cronin, 107 Mass. 555; Haskins v. Royster, 70 N. C. 601, 16 Am. Rep. 780; Jones v. Stanly, 76 N. C. 355. In Knickerbocker Ice Co. v. Gardiner, 107 Md. 556, 69 Atl. 405, 16 L. R. A. (N. S.) 746, the question is discussed by Boyd, C.

J., and the authorities carefully reviewed. It having been settled that an action, as for a tort, would lie for a malicious — that is wrongful — interference with the performance of an executory contract, the question naturally arose whether the principle extended to a case in which a third party, with like motive and without lawful excuse, by his interference prevented one from entering into, or making, a contract.

The answer to this question is dependent upon the answer to another, which lies at the threshold of the inquiry: Does the right to enter into or make a contract come within the definition of a legal right, the wrongful interference with which is actionable? I,t is difficult to say, in many cases, at what stage of a negotiation the condition has arisen when it can be said that two persons would, but for the interference of a third party, have entered into contract relations.

If A. make a definite proposal to B. to enter into a contract, the character, termg, etc., of which are sufficiently definite to be capable of acceptance, and, while B. is negotiating, or after he has determined to accept the proposal, C. maliciously interferes and prevents the acceptance on the part of B., or procures a withdrawal of the proposition 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 inj uria, 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. Ene., 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 cjuéstion 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 ob'tain 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 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, because 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: “Tliat 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 learped 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: “Tlie point was made tliat 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 Tortgage Company, which situa’tion 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.

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. 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.” Stein-brenner, 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." 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: “1 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 particular,” etc. On May 27, 1901, he writes: “Inasmuch as the so-called O. 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 rej ected, 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.

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 Éloede, 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 print-ters 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. Fie leaves the question in some confusion.

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 o.f 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; ⅜ * ⅜ 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 Flard 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 a 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: “I am very glad to ¡state that Secretary Gage, in the presence of Mr., Van-ilerlip, and myself, ruled that I had a perfect right to dispose of the ‘products of my brains’ (to quote Secretary Gage exactly) at any price which I might be able to secure, so long as I was not competing with the government or injuring its cause in any way,” etc.

This correspondence resulted in the contract of March 14, 1901, by which Van Dyck was to receive $25,000 for his process — $1,000 of which was to be paid in cash and the balance in two-thirds of the net proceeds of the sale, until the full amount was paid.

It will be noted that, in this contract, the following provision was made: “Should, however, the said process be found impracticable or commercially disadvantageous, it is agreed that the said Bloede may, at any time, discontinue the use thereof, and'that, in such case, all liability on the part of Bloede for any part of said sum of twenty-four thousand dollars, then unpaid, shall at once cease and terminate.” Taking the testimony of Van Dyck and Bloede as true, this contract is very far removed from the permission given by Secretary Gage to “sell the products of his brain,” etc.

What other construction can be put upon this' transaction than that, from and after March 14, 1901, Van Dyck, the chemist and ink maker in the employment of the government', with the duty imposed upon him described by the witnesses, was vitally interested to the extent of $24,000 in having the bids for “5 Black” rejected and “7 Hard Black” accepted — the latter to displace the former?

Does not this testimony justify a reasonable inference by a jury that, after having given to the sample of the Chemical Company the highest rating and reported'its bid, the lowest price (unknown to him that the sample and bid were those of the Chemical Company), the success of his enterprise, or making the process “commercially advantageous,” was dependent upon having “5 Black” rejected and “7 Hard Black” accepted? Is it not a fair inference that this condition explains Van Dyck’s motive for writing the letters of May 25 and May 27, 1901, which brought about the "desired result”?

There is, however, another version'of this transaction by a disinterested witness. The theory of defendants is that Van Dyck had discovered a new and valuable process, known only to himself, worth, if commercially advantageous, $25,000 to the bidder for the contract.

Hopkins testifies that, while in the employment of the Bloede Company, as its chemist, he was directed to make experiments upon “blacks” for the purpose of meeting the wishes of the Bureau; that he “devised the formula”; that he, with knowledge of what would be called for, “delivered the formula, and did pretty much all the work that was done on it; that Van Dyck did absolutely none of the chemical work upon the sample that was sent him with the Bloede bid for No. 7.” The testimony of this witness is contradicted by Bloe.de and Van Dyck.

If, however, the jury should accept it as true, the entire transaction assumes a different aspect from that presented by defendants. Van Dyck had nothing to sell. Knowing that the Black No. 5 made and furnished to the government by Bloede had “proven unsatisfactory,” and that it was desired that some other ink be used, Van Dyck proceeds to have a specification made in advance. .This is given Bloede’s chemist, with instruction to experiment on it. The result is accomplished by the chemist.

It is desirable to attribute the discovery to Van Dyck, to interest him in securing its adoption in place of No. 5,. and for his service to pay him $25,000, provided it proves commercially advantageous. The desired result is brought about by the “interference of Van Dyck.” “No. 5,” notwithstanding it has the highest rating and is offered at 29 cents per pound, is “rejected,” and “No. 7,” which costs .less to make, is “accepted” at 45 cents per pound, and Van Dyck, under a contract with Bloede, differing only from the contract of March 14, 1901, in method of payment, receives $25,000.

This is plaintiff’s theory, which he claims is sustained by the evidence. "We express no opinion, nor make any intimation in regard to the weight of the conflicting evidence. That was a question for the jury. They may have accepted Hopkins’ testimony as true. If Hopkins’ testimony is true, Van Dyck had no “product of his brain” to sell.

The agreement on the part of Bloede to pay him $25,000 could have had no other consideration than that he should use his official power to secure the contract for “No. 7, Hard Black.” After “No. 5” had, by a competitive bid, secured a status from which, in the light of surrounding circumstances and conditions, a reasonable inference may be drawn that, but for the interference of Van Dyck, induced by the promise of Bloede to -pay him $24,000 for doing so, a contract would have been made by the government with the Chemical Company. Van Dyck practically instructed the committee of three to reject No. 5.

We concur with counsel that the plea of guilty to the indictment, entered by defendants, was not an admission that they were engaged in a conspiracy to injure the Chemical Company. The plea was an admission that, in securing the contract for No. 7, Hard Black, Van Dyck was not acting in good faith and with the purpose of serving the government, but that his real purpose was to defraud — that is, make a profit out of, and at the expense of — the government, and that Bloede was a party to such scheme.

The value to be attached to the explanation of the reason for entering the plea is lowered by more than one pregnant fact and circumstance. The record shows that they were represented by counsel.

If this explanation, etc., is rejected by the jury, the admission of record, that they were engaged in a conspiracy to defraud the government, and that its success was concealed until discovered after eight years’ investigation by the agents of the secret service of the government, it might very well have impressed their minds and caused them to hesitate in accepting defendants’ version of the transaction as it affected the Chemical Company. Notwithstanding their contention that they were oply seeking to promote the interest of the government in a plan by which the

article of the highest rating at the lowest bid was rej ected, and the process of defendants was accepted, to the great profit of Van Dyck and Bloede, the jury might well find that the real motive of Van Dyck, in writing the letter of May 27, 1911, was to' injure the Chemical Company • and to make a profit for himself; and this, the law declares, was a malicious, unlawful, and wrongful interference with a right of the Chemical Company.

We are not inadvertent to the principle, sustained and illustrated by numerous cases, that fair competition in trade, although resulting in loss to the injured party, does not give a right of action. It is equally well settled that, if unlawful methods are resorted to, and the motive to injure be shown, it is an actionable wrong. It will hardly be contended that the means charged to accomplish the wrong, prompted by the motive charged, brings the conduct of defendants within the domain of fair competition for trade.

Defendants earnestly insist that, if all of this be conceded, yet the instruction was correct, because the Chemical Company had no .property interest, or legal right, to demand of the government that, after submitting its bid and sample securing the rating, it make a contract for the ink. Colorado Paving Co. v. Murphy, 78 Fed. 28, 23 C. C. A. 631, 37 L. R. A. 630, is cited. There the appellee, the lowest bidder for certain paving material, sought to enjoin the board of public works from giving the contract to a higher bidder. The bill charged a conspiracy, etc.

The court properly held that it could grant no relief, because the plaintiff had acquired no legal right to demand that the contract be awarded to it, which a court of equity would enforce. The principle involved here is clearly distinguishable. The gravamen of this action is that defendants, bj a malicious interference, deprived the Chemical Company of the opportunity to enter into a contract under the conditions shown by the evidence.

As we have seen, the authorities uniformly hold that, when the action is for malicious interference with a contract, the guilty party will not be heard to say that the contract interfered with was invalid and not enforceable. The question in such case is: Does the evidence tend to show that “in the natural course, and but for such interference, the contract would have been formed”?

The basis of the action is “for maliciously preventing a person from entering into a contract which he would otherwise have entered into.” Adapting the language of Judge Brewer to the testimony in this case, it is no answer to plaintiff’s complaint to-say that there was no certainty that the contract would have been made. If such a defense were tolerated, it would always be an answer, in case of any wrongful interference with the making of a contract, for there is always a lack of certainty.

It is enough to show that there is a reasonable assurance, considering all the circumstances, that a contract would have been made. It is, of course, conceded that the plaintiff must show, not only damnum, but also injuria. To show the former without the latter is damnum absque injuria, and therefore not a remediable wrong. The defendants contend, and the learned judge concurred with them, that the evidence failed to show that, if the defendants had not interfered, the Chemical Company would have received the contract, and that the evidence in that respect was uncontradicted.

If, however, the evidence would have reasonably sustained an inference or conclusion to the contrary, Or if, in the language of the courts in numerous cases, fair-minded men of intelligence may have drawn different conclusions from the evidence, the question was for the jury, and not for the court. In such cases, the jury are entitled, not only to weigh the testimony, but to draw reasonable inferences from it. With deference to the learned judge, we think that such was the state of the case upon all of the evidence.

It is true that in certain phases the evidence was of such character as to leave the question open to debate, and reasonably calculated to sustain a conclusion favorable to defendants’ view; but this is not the standard by which the power of the court to direct a verdict is measured.

The persons in charge of the Bureau had not determined to reject “5 Black No. 1,” nor to adopt “7 Hard Black” for 1901— 02, although they had the same information in regard to the merits of each at the time the specifications were made as at the time Van Dyck wrote the letter to the “committee of three.” It will be noted, also, that, in estimating the requisition for “5 No. 1, Hard Black,” the amount was put at 75,000 pounds, whereas, for “7 Hard Black,” only 1,000 pounds would be required.

This certainly falls far short of showing a prior determination to “reject all bids” for “5 Hard Black.” It is hardly consistent with fair business methods to attribute to the officers in charge of Bureau a purpose, when the specifications were drawn, to trifle with the bidders for “5 Hard Black.” That it had not given satisfaction may be conceded, and that, if “7 Hard Black” was found to meet the difficulty, it is probable that this would have supplanted the other.

It is significant that, after the specifications were drawn in the usual form., the language relied upon by defendants to defeat the action, was added. •If this entire transaction from “start to finish” is open, fair, and free from moral wrong, then many of the badges to the contrary are of no import. If the jury should find for plaintiff, it may be conceded that it will be difficult to fix the amount of the loss sustained by the Chemical Company; but that it did sustain loss reasonably follows from the undisputed testimony. We express no opinion in regard to the measure of damages which should guide the jury.

The question is not free from difficulty. We have discussed the evidence, as we are required to do upon this record, from the same point of view that the court below did in directing a verdict, and are brought to the conclusion that the plaintiff was entitled to have his case passed upon by the jury. This will be certified to the court below. Reversed.