Hendricks v. Forshey

Williams, Judge: Plaintiff recovered a judgment against Thomas S. Forshey, Clarence E. Grew ell and M. W. Miller in the circuit court' of Wood county, and they have brought the case here on writ of error. ’ The action is trespass on the case and the declaration contains five counts. There was a'demurrer to the declaration and to each count, which demurrer the court overruled as to" the entire declaration and also as to the fourth and fifth counts, and sustained as to the first, second and third counts. Plaintiff, by permission of court, amended his first count, and defendants again demurred to it as amended, which the court overruled. Defendants then pleaded not guilty and issue was joined. It is insisted the demurrer, to the declaration should have been 'sustained for the alleged reason that the fourth count avers a cause of' action for breach of contract, whereas the' other counts are in tort, and actions' ex contractu and ex [264] delicio can not be joined. While the proposition embodies a well established rule of pleading, counsel have misconceived the true import of the fourth count. It avers’ a cause of action in the nature of a conspiracy. It charges substantially that plaintiff had contracts with defendants and with others, severally, to haul their milk from their places of residence in the country to the City of Parkersburg, for a year, at ten cents per gallon, of which defendants had knowledge and that they unlawfully and maliciously confederated and combined and entered into a conspiracy to refuse to per mit plaintiff to haul their milk, and in pursuance thereof breached their several contracts, wherefore plaintiff’s business as a hauler of milk has been destroyed and he greatly injured. These averments state a good cause of action on the case in the nature of a conspiracy. Porter v. Mack, 50 W. Va. 581. The contracts were several, not joint, and the wrong alleged is not simply the breach by each one of the defendants of his individual contract, but the breach of all of them in consequence of the unlawful combination and conspiracy. “If one wantonly and maliciously, whether for his own benefit or not, induce a person to violate his contract with a third person to the injury of that third person, it is actionable.” Transportation Co. v. Standard Oil Co., 50 W. Va. 611. Thacker Coal Co. v. Burke, 59 W. Va. 253. The first count is for slander, but the charge is not supported by the evidence, nor do plaintiff’s counsel, in brief, contend that it is. But they do insist the verdict properly stands on the evidence supporting the charge in the fourth 'count. Plaintiff testified that his contracts with the several defendants were made in the spring of 1915 and were for the period of a year, but defendants testified they were for no stated time, and they agree he was to receive ten cents per gallon. Plaintiff was discharged on July 11, 1915, and defendants admit they met at the home of Mr. Butcher on the evening before, and talked over the matter of discharging • plaintiff and hauling their milk themselves, each taking it by turns. Defendant Miller says: “We agreed to go trip about among ourselves.” And defendant Forshey admits it [265] was then agreed among them that he should call plaintiff on the ‘phone the next morning and notify him not to come for the milk, that they were going to haul it themselves, which he did. He also admits he called up Mr. Thomas Hoffman, ■who he knew was plaintiff’s customer, and solicited him to enter into the arrangement they had made to haul the milk in turns. This evidence supports the charge that defendants were induced to break their contracts by their concerted action and agreement among themselves to haul their own milk. The greater the number who could be induced to enter into that arrangement the easier it would be for each of them, as each would then be required to make fewer trips. Probably no one of defendants, acting independently of the others, would have been willing to break his contract with plaintiff if it necessitated his hauling his own milk, day after day. Plaintiff proved he was earning about $50.00 a month by hauling cream for defendants and others in the neighborhood, independent of what he was hauling for himself, and lost these earnings as a result of the breach of their contracts by defendants. This evidence suports the jury’s assessment of $263.83, as plaintiff’s damages. The judgment is affirmed. Affirmed.