Sleeper v. Baker

Bruce, J. (after stating the facts as above). Three causes of action are intended to be set forth in the complaint. Two are separate and distinct actions upon the contract, against separate and distinct defendants, and one is an action of tort against all of the defendants. It is for this court to determine whether such complaint is vulnerable to a motion to exclude all of the testimony for the failure of the several counts to state sufficient causes of action, and which motion, though specifically pointing out wherein such failure consists, raises no objection [392] to the misjoinder of the parties or of the actions, nor to the form of the pleadings. We are of the opinion that the first count of the complaint states a cause of action in contract against the defendants Baker & Brace, and that the trial court erred in excluding all of the evidence thereunder, and in directing a dismissal of the action in so far as this count was Concerned. There is, it is true, a question as to whether the joinder or attempted joinder of two causes of action upon the contract with separate and distinct defendants, and with another separate and distinct action in tort against all of the defendants, does not render the complaint defective; but, since this point was not raised by motion or demurrer preliminary to the trial in the court below, nor even by a specific objection pointing out the defect in the motion to exclude the evidence, or in the motion to dismiss on that trial, we hold that these objections, if any, were waived, and that the lower court erred in excluding all of the evidence under the complaint. “If there is but one righteous man in Sodom, the city may stand,” — and there appears to be at least one righteous count in this complaint. James River Nat. Bank v. Purchase, 9 N. D. 280, 83 N. W. 7. We now come to the second count in the complaint, which also is on the contract. This count is against the defendants Banta Bros. The causes of action against Baker & Brace and against Banta Bros, are separate and distinct, and should be separately stated (see § 6877, Rev. Codes 1905), even if they can be properly joined, and there is some doubt as to whether the former portions of the complaint can be prefixed to the paragraphs just quoted and be made a part thereof, so as to constitute a cause of action. Even if they could, however, no cause of action in contract is stated against Banta Bros. The complaint, indeed, as we view it, does not allege that Banta Bros, owe Sleeper anything on the contract, but rather that Sleeper owes Banta Bros, commissions at the rate of $3 per acre. The fact, if fact it be, that Banta Bros, received thereunder $35,000 commission from other parties is, under this count, no concern of the plaintiff. No cause of action on the contract is stated in the complaint against Banta Bros. The next count, if count it be, is a count in tort or for conspiracy., and, although on the oral argument counsel for appellant hardly mentioned the subject, it was the sufficiency of this count that furnished the [393] main matter in controversy, both on the trial below and in the printed briefs of counsel on this appeal. We must remember at the outset that, although the complaint seeks-to establish a conspiracy, mere opprobrious epithets do not change, in any way, the nature of the action. The action is a civil, and not a criminal, one. Indeed, as was said by Lord Holt in the case of Savile v. Roberts, 1 Ld. Raym. 374: “Though in the old books such actions are called conspiracies, yet they are nothing in fact but actions upon the case.” It is generally only when men conspire to violate the primary, and not the mere contractual rights of another, that the civil action of conspiracy will lie. As one authority puts it: “An act which, if done by one alone, constitutes no ground of an action on the case, cannot be made the ground of such action by alleging it to have been done by and through a conspiracy of several.” “The quality of the act, and the nature of the injury inflicted by it,” the courts say, “must determine the-question whether the action will lie.” Kimball v. Harman, 34 Md. 407, 6 Am. Rep. 340; Savile v. Roberts, 1 Ld. Raym. 374. Although there are a number of cases to the contrary, the weight of American authority seems to hold to this rule. See 1 Jaggard, Torts, p. 636; 1 Addison, Torts, p. 8. Even the cases which are often cited in contradiction to- it often fail to bear out the contention of their proponents. In the case of Van Horn v. Van Horn, 52 N. J. L. 284, 10 L.R.A. 184, 20 Atl. 485, for instance, the act was done by an outsider, and was a malicious libel to character and to business; and the same is true of Tally v. Cantwell, 30 Mo. App. 524. In the case of Jones v. Stanly, 76 N. C. 355, a malicious desire to injure the plaintiff, and not the mere desire to profit one’s self, is the gravamen of the action. The same is also true of the case of Delz v. Winfree, 80 Tex. 400, 26 Am. St. Rep. 755, 16 S. W. 111, and even of the leading English case of Lumley v. Gye, 2 El. & Bl. 216, 22 L. J. Q. B. N. S. 463, 17 Jur. 827, 1 Week. Rep. 432, 1 Eng. Rul. Cas. 706, on which the minority American rule seems to be grounded. In the leading American minority case of Angle v. Chicago, St. P. M. & O. R. Co. 151 U. S. 1, 38 L. ed. 55, 14 Sup. Ct. Rep. 240, upon which the respondents rely, there are to be found both a malicious'motive, positive tortious acts, and positive injury which an action on’a contract against the contracting party could hardly [394] 'have reached. The cases, indeed, are generally cases where the solicitation was by an entire outsider, and were accompanied by fraud or intimidation. It is also true that there is a line of cases where laborers were induced to break their contracts of employment, and which also hold to ;a contrary rule. See Haskins v. Royster, 70 N. C. 601, 16 Am. Rep. 780; Walker v. Cronin, 107 Mass. 655; Mapstrick v. Ramge, 9 Neb. 390, 31 Am. Rep. 415, 2 N. W. 739. These cases, however, belong to .a class of their own, and they are historically grounded in the deep-rooted policy of the old English, and even early colonial American law, which almost gave to the employer a property right in his employee, which was evidenced by statutes of laborers, of Elizabeth, and of Edward VI., and which tied the laborer to the land and dictated and controlled his contracts of employment. See 1 Addison, Torts, p. 7; Chambers v. Baldwin, 91 Ky. 121, 11 L.R.A. 545, 34 Am. St. Rep. 165, 15 S. W. 57, 58; 1 Jaggard, Torts, p. 636. The rule, indeed, has, except where direct fraud or coercion has been or where no adequate action upon the contract would lie against the guilty parties, rarely been extended to the breach of contracts generally. The whole question is so thoroughly and adequately discussed n the case of Chambers v. Baldwin, supra, and under a very similar state of facts, that we will refrain from lengthening this opinion; and, without necessarily affirming all that is in that opinion contained, we will refer to it for a discussion of the law. The rule, as we see it, is substanthis: That “an action cannot in general be maintained for inducing a third person to break his contract with the plaintiff; the consequence after all being only a broken contract feor which the party to the contract may have his remedy by suing upon it.” Ashley v. Dixon, 48 N. Y. 430, 8 Am. Rep. 559; Brentman v. Note (City Ct. N. Y.) 24 N. Y. S. R. 281, 3 N. Y. Supp. 420; Boyson v. Thorn, 98 Cal. 578, 21 L.R.A. 233, 33 Pac. 492; Kimball v. Harman, 34 Md. 407, 6 Am. Rep. 340. It is true that the Wisconsin case of Martens v. Reilly, 109 Wis. 464, 84 N. W. 840, seems to support the position of the appellant; but this case is not only contrary to the weight of American authority (see Jaggard, Torts, p. 696), but, as we will hereafter see, was decided under a peculiar local statute. The same is true of the cases of White v. White, [395] 132 Wis. 121, 111 N. W. 1117, and Randall v. Lonstorf, 126 Wis. 147, 3 L.R.A. (N.S.) 470, 105 N. W. 663, 5 Ann. Cas. 371. In the latter case, also, something greater than a breach of contract was involved, namely, a breach and annulment of the marriage relationship, in which the state as well as the individual is concerned. Anyway, all of the Wisconsin cases are decided under a statute in regard to conspiracy which is radically different from our own. To use the language of the admirable note to the case of Randall v. Lonstorf, supra, which is to be found in 5 Ann. Oas. 375: “The reported case cannot be said to conflict with the rule which is generally recognized. The case turned on the construction of the Wisconsin statute defining conspiracy, and it was merely held that the allegations of the complaint brought the case within that portion of the statute which makes it unlawful for any two -or more persons to combine or agree together Tor the purpose of maliciously compelling another to do or perform any act against his will, •or preventing or hindering another from doing or performing any lawful act.’ ” The court held, in the Wisconsin case, that the conspiracies or agreements were for the purpose of “preventing a lawful act,” i. e., the fulfilment of the contracts. Our statutes (§ 8768, Rev. Codes 1905) only makes the prevention of the doing of a lawful act unlawful when that prevention is brought about “by force, threats, intimidation, or by interfering or threatening to interfere with tools, implements, or property belonging to or used by another, or with the use of employment thereof.” We hold, therefore, that the trial court did not err in excluding all the evidence as to the alleged conspiracy, and if this were the only count we would affirm the judgment. We are, however, as we have before said, equally satisfied that an action, in contract is sufficiently pleaded in the complaint as against the defendants Baker & Brace, in so far, at least, as to render it invulnerable to a motion on the trial to exclude all of the testimony, and to a motion to dismiss the action after such testimony was excluded, which merely specify basic faults in substance, and do not call attention to misjoinder or lack of form. The judgment of the trial court is reversed, and the case is remanded for a new trial. The costs will be taxed against the respondents. Goss, J., being disqualified, did not participate. Honorable Charles-A. Pollock, Judge of the Third Judicial District, sat in his place.