Buhrman v. International Harvester Co.

• Decision Date: 21 April 1967
• Docket Number: No. 36403,36403
• Citation: 150 N.W.2d 220,181 Neb. 633
• Parties: Clement C. BUHRMAN, Appellant, v. INTERNATIONAL HARVESTER COMPANY, a Corporation et al., Appellees.
• Court: Nebraska Supreme Court

Page 220

150 N.W.2d 220

181 Neb. 633

Clement C. BUHRMAN, Appellant, v. INTERNATIONAL HARVESTER COMPANY, a Corporation et al., Appellees.

No. 36403.

Supreme Court of Nebraska.

April 21, 1967.

Syllabus by the Court

1. A civil conspiracy is a combination of two or more persons to accomplish by concerted action an unlawful or oppressive object or a lawful object by unlawful or oppressive means.

2. One who causes intended or unintended harm to another by refusing to continue a business relation with him, terminable at his will, is not liable for that harm.

3. The essential elements of fraud are: The making of a false representation, knowing it was false or making it recklessly without any knowledge of its truth and as a positive assertion, with the intention that it be acted on, that it was acted on, and that injury resulted.

4. To constitute duress, there must be an application of such pressure or constraint as compels a man to go against his will, and takes away his free agency, destroying the power of refusing to comply with the unjust demands of another.

Vogeltanz & Kubitschek, Ord, for appellant.

Fitzgerald, Brown, Leahy, McGill & Strom, William J. Brennan, Jr., Omaha, for appellees.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.

NEWTON, Justice.

This is an action wherein appellant Clement C. Buhrman charged appellees with a civil conspiracy. He alleged that he had a dealership agreement with appellee International Harvester Company. He had sold two tractors on which he was indebted to International Harvester Company and International Harvester Credit Corporation for which he had not made remittance to said appellees on their mortgage lien. Appellees falsely informed him that by reason of such action, he was guilty of a criminal offense and would be prosecuted therefor, and believing such threat, in reliance thereon, and acting under duress, he permitted appellees to repossess his entire stock of merchandise, which was converted by appellees to their own use. He further alleges appellees have failed to account to him for any excess received over and above $33,205.56, the amount owed by him to appellees, International Harvester Company and International Harvester Credit Corporation. All such acts were performed by appellees pursuant to a conspiracy to destroy his business, and he has been damaged by the destruction of his business, his credit, his reputation, his health, and by failure of appellees to account for the value of property converted in excess of his indebtedness.

Appellees generally denied the allegations of the petition and appellee, International Harvester Credit Corporation, cross-petitioned for money claimed to be due it by reason of the insufficiency of the property received from appellant to pay indebtedness due it from appellant. For reply appellant denied the allegations of such cross-petition.

Trial was had to a jury and the parties stipulated that appellant would first proceed with evidence relating to the question of conspiracy alone, its existence, and performance. At the conclusion of appellant's evidence on this phase, a verdict was directed and returned for appellees, and the action dismissed.

The evidence introduced reflects the following facts. Appellant had been with International Harvester Company since 1946 and in October 1960, entered into the dealership agreement with International Harvester Company under which he was operating at the time in question. The agreement provided that International Harvester Company could terminate it at any time the dealer defaulted on payment of any obligation due the company, or failed to account for the proceeds of the sale of goods for which he was indebted to the company or to International Harvester Credit Corporation. On termination of such agreement, the company could repossess all goods on hand for which the dealer was indebted to it.

Appellant financed purchases with either International Harvester Company or International Harvester Credit Corporation under a mortgage or trust receipt arrangement and if with International Harvester Company, the notes were assigned to International Harvester Credit Corporation. He owed money to International Harvester Company and International Harvester Credit Corporation on open account, and under financing arrangements covering, among other items, two tractors and other equipment which had been financed, sold, and not accounted for. He admits International Harvester Company had a legal right to terminate his dealership contract on April 4, 1961, when such action occurred.

In the latter part of March 1961, appellee Devan, an employee of International Harvester Company, called, noted two tractors which had not been accounted for were missing, and was informed by appellant that they were out on demonstration. Devan returned April 3, 1961, and seeing the tractors were still missing, was going out to call on the farmers who had them when appellant informed him that he had sold them, but had not made remittance on them to International Harvester Company. Devan then made demand for payment but was not paid. Appellant testified at various times that Devan then said, 'he could be subject to a penitentiary offense,' or, 'he would be subject to a penitentiary offense.' Such statement was made on only the one occasion. The following day, April 4, 1961, appellant signed a letter canceling his dealership contract, and also signed a repossession agreement pursuant to which International Harvester Company repossessed all machinery, parts, and equipment appellant had in stock. Appellant says...