We first consider the request for the substitution of judge. The issue is whether that request was timely under sec. 261.08, Stats. It was not.
Sec. 261.08 (1), Stats., provides:
"Any party to a civil action or proceeding may file a written request with the clerk of courts for a substitution of a new judge for the judge assigned to the trial of the case. The written request shall be filed on or before the first day of the term of court at which the case is triable or within 10 days after the case is noticed for trial. Upon filing the written request, the filing party shall forthwith mail a copy thereof to all parties to the action and to the named judge."
The defendants contend that their request for substitution of judge was timely because the statute allows the request to be filed up to and within ten days after the case is noticed for trial. They point out that this case has never been noticed for trial under sec. 270.115, Stats.
Thus, the narrow question here is whether the fact that the case had not been noticed for trial made the request timely where there had already been preliminary proceedings on the preliminary injunction request.
In the 1863 case of Swineford v. Pomeroy
"Whenever any party, in any civil action, pending in any court of record, shall apply for a change of the place of trial of such action, on account of the prejudice of the judge of such court, and shall verify such application by his oath or affidavit, the court shall change the place of trial of such action."
This court, despite the general language of the statute, felt it had to be given a rational construction. The court stated:
This limitation has been applied in several cases since that time.
Plaintiffs contend that the instant case comes within this rule, asserting that the trial was commenced at the hearing on the temporary injunction because evidence was adduced which could be used in the final determination on the merits. We think not.
In People v. Rice Associates
But is the request too late if made, as here, following the hearing on the temporary injunction motion?
Many other jurisdictions have held that an affidavit of prejudice does come too late if filed after the hearing of contested preliminary matters.
In McClenny v. Superior Court of Los Angeles County,
In State v. Armijo
". . . We cannot permit a litigant to test the mind of the trial judge like a boy testing the temperature of the water in the pool with his toe, and if found to his liking, decides to take a plunge."
In Marsin v. Udall the court qualified the holding in an earlier Arizona case which stated that where a party permitted the judge to rule in any contested matter whatsoever he waived his right to disqualify the judge. The prior Arizona case had involved an application for a temporary injunction in which voluminous evidence was taken including the testimony of witnesses. The court in Marsin stated:
". . . We think under these circumstances the result reached that the affidavit in that case was untimely filed was correct for the reason that the parties had permitted the judge to accept evidence which of necessity would have a bearing on final determination of the matter on the merits. . . . The effect of all this was that Judge BARRY had partially tried the issue to be ultimately decided. This does not mean that all evidence submitted on a preliminary motion would operate to shut off a subsequent affidavit of bias and prejudice. Evidence of collateral matters not bearing on the final decision cannot constitute a waiver of the right to challenge the fairness of a judge, but this court is committed to the rule that if a judge is allowed to receive evidence which of necessity is to be used and weighed in deciding the ultimate issues, it is too late to disqualify him on the ground of bias and prejudice."
The sole issue on the merits on this appeal is whether the trial court abused its discretion in granting the temporary injunction.
In Mogen David Wine Corp. v. Borenstein
"`The writ [temporary injunction] is to a great extent a preventive remedy; and where the parties are in dispute concerning their legal rights, it will not ordinarily be granted until the right is established, especially if the legal or equitable claims asserted raise questions of a doubtful or unsettled character.'"
Although there is clearly a dispute as to what conduct of the defendants can be lawfully enjoined under the common law and Wisconsin statutes, sec. 185.43, the trial court chose to hear several days of testimony and receive numerous exhibits and render a decision granting a temporary injunction which restrained the defendants-appellants from:
(1) Interfering with the Membership and Marketing Agreements between the plaintiffs and their producer-members and inducing or attempting to induce them to
(2) Aiding, in any manner, in the breach, repudiation or termination of such Membership and Marketing Agreements.
(3) Persuading or attempting to persuade producer-members of plaintiffs to breach, repudiate, or terminate their membership agreements with the plaintiffs.
(4) Persuading or attempting to persuade said producer-members of plaintiffs to sell or ship their milk to plants other than at the direction of the plaintiffs.
The order specified, however, that the defendants-appellants were free to deal with and market the milk of producers who had signed National Farmers Organization milk sales agreements which preceded in time the producers' membership and marketing agreement with the plaintiffs. It was further provided that the milk sales agreement referred to did not include the National Farmers Organization membership agreement or milk processing and sales agreement.
The defendants-appellants urge that this injunction is excessively broad and restrictive of fair competition and that the NFO should be allowed to deal with any milk producer as long as the milk producer is not induced to breach any existing commitment he has with another marketing agency. The plaintiffs contend that all activities restrained by the order can be restrained by virtue of the provisions of sec. 185.43, Stats., and the principles of the common-law tort of contract interference.
The original statute giving protection to the contracts of agricultural associations was created by the Laws of 1925, ch. 181. The original statute was numbered 185.08, and sub. (6) read as follows:
"Where any contract exists between an association and a member, any person who, with knowledge or notice of the existence of the contract, induces or attempts to
The wording of this section was unchanged until 1955 when ch. 185 of the statutes relating to co-operative associations was extensively revised. By sec. (6) of ch. 368 of the Laws of 1955, sec. 185.43 of the statutes was created to read:
(1) . . .
"(2) Any person, with actual or constructive notice that a contract exists, who induces or attempts to induce any member to breach or repudiate his contract with the association, or who in any manner aids a breach of such contract, is liable to the aggrieved party for damages caused by such interference. The association is also entitled to an injunction to prevent any interference or further interference with the contract."
The wording of the two sections is almost identical, except that the original section used only the word "breach." In the new section the word "repudiate" is used once. The title of the statute remained the same describing the statute as referring to relief from breach or threatened breach. Although the title is not part of the statute it may be persuasive of the interpretation to be given the statute. A revision committee note accompanied the 1955 repeal and re-creation of this statute which stated that: "No substantial change is intended from provisions in 185.08 (1953)." By sec. 990.001 (7) of the statutes the legislature has provided that notes in a revision bill saying that the meaning of the statute is not changed by the revision, are indicative of the legislative intent. The present note is ambiguous. It does not provide that no change was intended, but rather that no "substantial change" was intended. This is sufficient to
The plaintiffs-respondents contend that by using the word "repudiate" the legislature must have meant "terminate." They assert that the term "breach" includes both the concept of present breach and anticipatory breach and that therefore "repudiate" would be superfluous and must refer to something more than future breach of contract. However, the plaintiffs are mistaken in their assertions concerning the definition of breach contained in the Restatement of the Law of Contracts. Section 312 defines a breach of contract as: "non-performance of any contractual duty of immediate performance."
There have been no decisions of this court made after the revision of the statute and thus there are no opinions construing the meaning of "breach or repudiate" to include termination. The cases decided under the old sec.
However, sec. 185.43 (2), Stats., does offer broad protection to Wisconsin co-operatives. Under this statute it is not necessary to demonstrate intent; injury is presumed from violation of the statute; it creates an offense of attempted inducement; and it provides for constructive notice of the existence of the contract. Under sec. 185.42 the filing of a uniform contract and a list of farmers signatory thereto "constitutes notice to all persons of the association's rights under the contract." In Watertown Milk Producers Co-Operative Asso. v. Van Camp Packing Co.
Thus, we conclude that under the provisions of sec. 185.43, Stats., the plaintiffs are entitled to at least a temporary injunction against the defendants for inducing or attempting to induce the breach of the plaintiffs' contracts with producers regardless of whether the defendants
The plaintiffs also maintain that the defendants may be enjoined from inducing the termination of producers' membership and marketing agreements with the plaintiffs under the common law. The plaintiffs-respondents state the rule of the common law too broadly. Sec. 766 of the Restatement of the Law of Torts provides as follows:
"Sec. 766 GENERAL PRINCIPLE.
"Except as stated in Section 698, one who, without a privilege to do so, induces or otherwise purposely causes a third person not to
"(a) perform a contract with another, or
"(b) enter into or continue a business relation with another is liable to the other for the harm caused thereby."
And in sec. 768, the Restatement of the Law of Torts describes one very broad privilege.
"Sec. 768 PRIVILEGE OF COMPETITOR.
"(1) One is privileged purposely to cause a third person not to enter into or continue a business relation with a competitor of the actor if
"(a) the relation concerns a matter involved in the competition between the actor and the competitor, and
"(b) the actor does not employ improper means, and
"(c) the actor does not intend thereby to create or continue an illegal restraint of competition, and
"(d) the actor's purpose is at least in part to advance his interest in his competition with the other.
The comments on clause (b) indicate that the predatory means discussed in sec. 767 of the Restatement—physical violence, fraud, civil suits and criminal prosecutions—are all improper means of inducement. Sec. 767 of the Restatement of Torts describes factors to be used in determining the existence of a privilege. Fraudulent misrepresentations are stated to be ordinarily improper means of inducement and defeat the existence of a privilege. The Restatement describes a representation as fraudulent when "to the knowledge or belief of its utterer, it is false in the sense in which it is intended to be understood by its recipient."
This formulation of the common law of interference with contracts has been recognized in Wisconsin. In Mendelson v. Blatz Brewing Co.
The plaintiffs-respondents cite a New York case as supporting their assertion that inducing termination of a contract is actionable. In Silva v. Bonafide Mills,
"The result would be different were the gravamen of the complaint the fraud or misrepresentation of the third party in inducing such disaffirmance, as was held in Rice v. Manley (66 N.Y. 82). There the third party fraudulently misrepresented certain facts in inducing one of the contracting parties to walk away from his contractual obligations. The actionable wrong was the fraud and misrepresentation and not the act of inducement. This is not the situation herein, since nowhere in plaintiff's complaint is there an allegation of fraud or misrepresentation."
Therefore, if the defendants come within the provisions of sec. 768 of the Restatement of Torts, they are liable to the plaintiffs only if they used improper means of inducement to terminate contracts with the plaintiffs. Such improper means within the principles of the Restatement are coercion by physical force or fraudulent misrepresentation. Sec. 768 gives a privilege to competitors. We believe that the plaintiffs and the defendants are competitors within the scope of this section even though they are nonprofit organizations. The two groups are competing for sources of milk from farmer-producers by seeking their membership and marketing contracts.
The issue then resolves itself to whether the trial court abused its discretion in granting the injunction given the applicable legal principles and the evidence presented by the plaintiffs. The record supports the court's conclusion that the plaintiffs will probably succeed on the merits in proving their allegations of inducement and attempted inducement of breach of contract and aiding breach of
However, the order also restrains the defendants from inducing, aiding or persuading producer-members of the plaintiffs to terminate their membership and marketing agreements with the plaintiffs. As discussed above this action would not render the actor liable unless improper means were used for such inducement. The plaintiffs in their complaint allege no improper means of inducement and both the plaintiffs and the trial court may have been operating under the erroneous conclusion that sec. 185.43, Stats., also made inducement of termination of contracts, according to their terms, actionable. The only evidence of any "misrepresentations" by the defendants is contained in Exhibits 14, 15, and 18. None of these exhibits was referred to in the oral testimony at the hearing and no oral testimony was adduced on this subject. On this state of the record we do not think that a trial court could reasonably conclude that the plaintiffs succeeded in establishing that the defendants were inducing termination of membership agreements by false representations.
The defendants-appellants also make two other objections to the order of the trial court. The first objection is that the trial court failed to make adequate findings of fact as required by sec. 270.33, Stats.
The defendants also assert that the order of the trial court is overbroad and grants all the relief which could be granted on a final resolution of the controversy. The order does no more than preserve the status quo. Not all the relief prayed for by the plaintiffs in their complaint is granted by the order. As modified, it does not hinder any legitimate activities of the defendants. The order quite clearly refers only to the marketing of milk and does not prevent the defendants from discussing other commodities with their members. The order also can fairly be read not to prevent the defendants from contacting new producers. Any further clarification of the order should await actual concrete factual situations and not be based on hypothetical problems.
We do not reach the defendants' constitutional issue with respect to the trial court order because of our disposition of their appeal. The only conduct which is enjoined is conduct forbidden by statute or the common law. Certainly one is not privileged by the first amendment to engage in unlawful activities.
By the Court.—Order reversed and cause remanded for the entry of an order consistent with this opinion. Relief denied on requested writ of mandamus. Costs on appeal to appellants; costs on mandamus proceeding to respondents.