Loewenberg v. De Voigne

REYNOLDS, P. J. (after stating the facts). This petition appears to be one at law and equity. Treating it as combining both and that in one count (to which no objection was made by defendants by demurrer or otherwise), we cannot see that plaintiff makes out a case for relief on either side of the court. His counsel cite us to no authority in support of Ms positions. For that matter, we may add, that we are without the aid of cited authority by counsel on either side. While it is often burdensome to the court to be confronted with a great mass of citations, citations that direct us to authority on the points made are always not oMy serviceable but welcomed. Looking to the parts of the petition relied on by counsel as showing plaintiff clearly entitled to nominal damages for the admitted violation of the contract which counsel claims likewise clearly entitled him to substántial punitive damages, we find it there averred that the objections made by defendants to the issue of a certificate of incorporation and on which the certificate was refused, “were frivolous” and were “maliciously made,” for the purpose of preventing the issue of the certificate. It is to be presumed that the objections were sufficient to prevent the Secretary of State from issuing the certificate, so that they could hardly have been considered frivolous by the Secretary of State, and we are referred to no case which holds that the motive with which they were made by the defendants, whether malicious or not, gives plaintiff a cause of action at law for damages for so making them. On the contrary, we find weighty authority in support of the proposition, that the state of mind of the person doing the act complained of does not affect the right to do it. “If it was a lawful act, however ill the motive might be, he had a right to do it. If it was an unlawful act, however good his motive might be, he would have no right to do it. Motives- and intentions . . . are absolutely irrelevant.” [Lord [717] Halsbury, L. C., in Mayor, etc., of Bradford v. Pickles, commonly cited as Bradford Corporation v. Pickles, 1 App. Cas. (1895) 587, l. c. 594.] This same principle was again announced in the case of Allen v. Flood, 1 App. Cas. (1898) 1, l. c. 46, in which latter case, Wills, J., says, in substance, that there are acts which a man has a definite legal right to do without any qualification. and which therefore cannot be actionable, and in such case, the motive with which the act is done is immaterial. “A good motive does not increase, a bad motive does not diminish, the right to do them.” Speaking of the right of a man to erect upon his own land a building which may ruin his neighbor’s industry exercised upon the adjoining land, he says: “No action could be maintained, though it were demonstrated that his only purpose in making the erection was to spite and damage his neighbor. . . . Equally any right given by contract may be exercised as against the giver by the person to whom it is granted, no matter how wicked, cruel, or mean the motive may be which determines the enforcement of the right. It is hardly too much to say that some of the most cruel things that come under the notice of a judge are mere exercises of rights given by contract — a fact illustrated perhaps by some of the decisions upon bills of sale. In such cases it is, I apprehend, perfectly clear law that the addition to the statement of the cause of action of the epithet ‘malicious,’ and proof that the thing done was done from the worst of motives will not make the matter complained of actionable. [Bradford Corporation v. Pickles, supra.] Certainly no one is more keenly alive than myself to the mischief that would be caused by any relaxation of this rule.” The same rule has been applied with reference to damages for the prosecution of a civil action not involving the arrest of the person or seizure of property. While there is great diversity of opinion among the courts of this country on the application of [718] this rule, the weight of American authority appears to he against the right of action. [4 Sutherland on Damages (3 Ed.), side page 701, sec. 1235.] That is the rule recognized in our State and by this court, as see Holke v. Herman, 87 Mo. App. 125, where Judge Goode, at page 141, has collated the leading authorities in support of the general doctrine that a man’s motives in making use of his property are immaterial, provided his act is lawful. Still treating it as an action at law, the petition is defective. While averring that the contract provided that a majority in interest of the subscribing parties should form the new corporation, it fails to aver that the parties who proposed to form the new corporation constituted a majority in interest of the subscribing parties to the articles. This is a fatal omission. Treating it as a suit in equity, the contract as pleaded lacks those elements of certainty which would enable a court of equity to specifically enforce it; a fundamental requisite in equity. How would the court ascertain the essentials which must be in articles of association, from a contract that neither specifies the amount of capital, or the number of shares into which it should be divided, nor the amount proposed to be paid in on incorporation? Who shall constitute the first board of directors? Even the division of the shares among the incorporators or subscribers is unnamed. These are all among particulars which our statute requires shall be set out in the articles. Treating it as an action at law or a suit in equity, there is a fatal defect of parties, and that defect is properly challenged by the demurrer. Even if Thuner and Helmkamp had subsequent to the contract sold their stock to plaintiff, they are necessary and indispensable parties, as parties to the original contract. While a sale of their stock to plaintiff may have divested them of their interest in the old company, it did [719] not take them out of the contract which is sought to be specifically enforced. The transfer of their shares did not affect any right of action under the contract. Nor can we understand how R. H. Kobusch, F. W. Halkemeyer, Charles Rost and F. A. Trebbe, who are parties to the contract, but not parties to the suit, could transfer and assign their right of action under the contract against DeVoigne to plaintiff. If these persons did not choose to go on with the performance of the contract and participate in the organization of the proposed corporation, surely DeVoigne could not be compelled to go into a corporation with them not members thereof. Nor do we understand how one can assign his right to bring an action: he may assign his right in the thing, and by that the right to bring action for it may follow; but we do not understand how he can assign his mere right to bring action on the contract. If by this is meant, that they assigned their rights in the contract, the question would then arise as to whether those rights are assignable. No allegations in this petition meet this. On consideration of the petition, we cannot find that it states any cause of action at law or in equity. We think the demurrer was properly sustained and as plaintiff elected to .stand on that demurrer and to let final judgment go thereon, the question of whether the petition is amendable is not before us. The judgment of the circuit court is affirmed. All concur.