Luke v. DuPree , 158 Ga. 590 ( 1924 )

Hines, J.

(After stating the foregoing facts.)

Does the petition set forth a cause of action? In the first place it is insisted by counsel for the defendant that the petition does not set forth a cause of action for a conspiracy to cheat and defraud. In the view we take of this case it is not necessary to decide whether such a cause of action is set out or not. "We are of the opinion that a cause of action on another theory is alleged; and for this reason it becomes unnecessary to deal with this contention of the defendant. It is actionable maliciously or without justifiable "cause to induce one to break his contract with another to the damage of the latter. Angle v. Chicago &c. R. Co., 151 U. S. 1 (14 Sup. Ct. 240, 38 L. ed. 55); 12 C. J. 604, § 161; Wheeler-Stenzel Co. v. American Window Glass Co., 202 Mass. 471 (89 N. E. 28, L. R. A. 1915F, 1076); Walker v. Cronon, 107 Mass. 555; Moran v. Dunphy, 177 Mass. 485 (59 N. E. 125, 83 Am. St. R. 289, 52 L. R. A. 115); Beekman v. Marsters, 195 Mass. 205 (80 N. E. 817, 11 L. R. A. (N. S.) 201, 122 Am. St. R. 232, 11 Ann. Cas. 332); McGurk v. Cronenwett, 199 Mass. 457 (85 N. E. 576, 19 L. R. A. (N. S.) 561); Bitterman v. L. & N. R. Co., 207 U. S. 205 (28 Sup. Ct. 91, 52 L. ed. 171, 12 Ann. Cas. 693); Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U. S. 373 (31 Sup. Ct. 376, 55 L. ed. 502); Faunce v. Searles, 122 Minn. 343 (142 N. W. 816); Mealey v. Bemidji L. Co., 118 Minn. 427 (136 N. W. 1090); Cumberland Glass Mfg. Co. v. DeWitt, 120 Md. 381 (87 Atl. 927, Ann. Cas. 1915A, 702); Schonwald v. Ragains, 32 Okla. 223 (122 Pac. 203, 39 L. R. A. (N. S.) 854); Bowen v. Speer (Tex. Civ. App.), 166 S. W. 1183; Twitchell v. Nelson, 126 Minn. 423 (148 N. W. 451); Knickerbocker Ice Co. v. Gardiner Dairy Co., 107 Md. 556 (69 Atl. 405, 16 L. R. A. (N. S.) 746); Raymond v. Yarrington, 96 Tex. 443 (72 S. W. 580, 97 Am. St. R. 914, 62 L. R. A. 962); Martens v. Reilly, 109 Wis. 464 (84 N. W. 840); Hendricks v. Forshey, 81 W. Va. 263 (94 S. E. 747, L. R. A. 1918C, 150); 3 Bl. Com. 142; London Guarantee &c. Co. v. Horn, 206 Ill. 493 (69 N. E. 526, 99 Am. St. R. 185); Southern Ry. Co. v. Chambers, 126 Ga. 404 (55 S. E. 37, 7 L. R. A. (N. S.) 926). The theory of this doctrine is that the parties to a contract have a property right therein, which h third person has no more right maliciously to deprive them of, or injure them in, than he would have to injure their property. Such an injury amounts to a tort for which the injured party may seek compensation by an action in tort for damages.

An examination of the authorities cited above will show that the term “malicious” or “maliciously” means any unauthorized interference, or any interference without legal justification or excuse. Personal ill will or animosity is not essential. So this court has held. Employing Printers Club v. Doctor Blosser Co., 122 Ga. 509, 519 (30 S. E. 353, 69 L. R. A. 90, 106 Am. St. R. 137, 2 Ann. Cas. 694). Such examination will likewise disclose that this doctrine is not confined to contracts of employment alone, but extends to all contracts. A conspiracy is a combination to accomplish an unlawful end, or to accomplish a lawful end by unlawful means. Brown v. Jacobs’ Pharmacy Co., 115 Ga. 429, 433 (41 S. E. 553, 57 L. R. A. 547, 90 Am. St. R. 126). The breach of a contract is unlawful. It is -unlawful for others, without lawful excuse, to induce the maker of a contract to break it, or to aid him in its breach; and for the maker and others to combine to break it is a conspiracy, which entitles the other party to the contract to his action against the conspirators for any damage which he may sustain.

There are respectable authorities which hold, that generally an action cannot be maintained against a person for inducing another to break his contract with the plaintiff; the consequence after all being only a broken contract, for which the party to the contract may have his remedy by suing upon it. Ashley v. Dixon, 48 N. Y. 430 (8 Am. R. 559); Brentman v. Note, 3 N. Y. S. 420; Boyson v. Thorn, 98 Cal. 578 (33 Pac. 492, 21 L. R. A. 233); Kimball v. Harman, 34 Md. 407 (6 Am. R. 340). Besides, it may seem anomalous that if a party to a contract breaks it, and is alone responsible for the breach, he can only be sued in an action ex contractu for the breach; but if he breaks his contract, and another induces him to break it or conspires with him to break it, or aids him in breaking it, both can be sued ex delicto, on the theory that both are liable for a tort perpetrated in pursuance of a conspiracy to break the contract. But the tendency of modern decisions is to hold them liable as conspirators. This is in harmony with sound morals. The case falls within the scope of section 4469 of the Civil Code, which declares: “In all cases lie who maliciously procures an injury to be done to another, whether it be an actionable wrong or a breach of contract, is a joint wrong-doer, and may be sued either alone or jointly with the actor.” Whoever wilfully assists in the doing of an unlawful act becomes answerable for all the consequences of such act. Chattahooćhee Brick Co. v. Goings, 135 Ga. 529, 535 (69 S. E. 865, Ann. Cas. 1912A, 263). On the theory that the parties to a contract have a property right therein, any “act of another which unlawfully interferes with such enjoyment is a cause of action.” Civil Code (1910), §4470. It is true, as was held in the well-considered case of Woodruff v. Hughes, 2 Ga. App. 361 (58 S. E. 551), that where civil liability for conspiracy is sought to be imposed, the conspiracy itself furnishes no cause of action, and that the gist of the action is the damage and not the conspiracy. In the instant case the plaintiffs do not contend that the conspiracy of the defendants to break the contracts involved furnishes a cause of action; but they do contend that the breaches of these contracts were unlawful, and that, when the defendants conspired to commit these breaches and the contracts were broken in pursuance of such conspiracy, a cause of action accrued to them. So we reach the conclusion, that, under-time facts stated iim the petition, the truth of which the demurrer admits, the petition sets out a cause of action; and the court properly overruled the grounds of general demurrer.

But the defendant, who is the plaintiff in error in this case, demurs omm the ground that Fulton superior court was without jurisdiction of her person. As we have held above, the petitioim sets forth amm action imm tort for which each defendant could be sued aloime or all jointly. The action beiimg joiimt and several, ammd being oime sounding in tort, a joiimt action could be brought in the county of the residence of either of the defendants. Cowart v. Fender, 137 Ga. 586 (73 S. E. 822, Ann. Cas. 1913A, 932).

This defendant further iimsists that the petition fails to show that any contract has beeim broken, that the defendants either conspired to procure any breach of coimtract or did iim fact procure such a breach, aimd that it fails to show that the plaintiffs have beeim injured in any way through the alleged conspiracy. We think that the petition sufficiently makes these allegations, and that these contentions are without merit.

The defendant next urges that the allegations of fraud are general aimd not specific; and that for this reason the petition should have been dismissed upon general demurrer. It is true that iim pleading fraud specific facts must be stated with due certainty. Carswell v. Hartridge, 55 Ga. 412; Tolbert v. Caledonian Ins. Co., 101 Ga. 741 (28 S. E. 991). Charges of fraud and conspiracy cannot be made in general terms, without specific acts and facts being alleged. James v. Kelley, 107 Ga. 446 (33 S. E. 425, 73 Am. St. R. 135). The petition in this case alleges that the defendants conspired to cheat and defraud the plaintiffs. This general allegation, standing alone, would not be sufficient; and the petition would be subject to general demurrer if this naked averment were the only one made on this subject. But the petition sets out the specific facts upon -which this general charge is based; and for this reason the petition does not violate the principle which provides for fraud and conspiracy to be specifically pleaded.

This defendant contends that the petition is multifarious for the reasoim that there are a misjoinder of causes of action and a misjoinder of parties defendant. It is further insisted that suits upon contract are joined with suits sounding in tort. The plaintiffs are not suing Manget and Luke upon their contracts in which the latter employed the former to sell their real estate holdings and agreed to pay them commissions for these services; but they are suing in an action ex delicto, as we have undertaken to show above. This being so, there is not a joinder of causes of action ex contractu and ex delicto. The contracts are alleged for the purpose of showing the manner in which the alleged tort was committed, and for the further purpose of showing the amount of damages which the plaintiffs have sustained by reason of the commission of such tort. The petition is not multifarious for the reason that it sets out separate and distinct causes of action against separate and distinct defendants, or because it improperly joins parties defendant; but it is a suit based upon a single cause of action arising out of the breaches of contracts between the owners and the agents for the sale of these parcels of real estate, and for the payment of these agents for such services, which breaches were brought about by a combination and conspiracy entered into between the defendants to accomplish this purpose.

Judgment affirmed.

All the Justices concur.