Canellos v. Zotalis
| Decision Date | 01 April 1920 |
| Docket Number | No. 21,614.,21,614. |
| Citation | 145 Minn. 292 |
| Parties | PETER CANELLOS v. CHRIS ZOTALIS.<SMALL><SUP>1</SUP></SMALL> |
| Court | Minnesota Supreme Court |
The substance of the pleadings will be found at the beginning of the opinion. The case was tried before Comstock, J., when the proceedings narrated in the sixth paragraph of the opinion took place. From an order denying his motion for a new trial, plaintiff appealed. Reversed and new trial granted.
C. J. Laurisch and Moonan & Moonan, for appellant.
S. B. Wilson, for respondent.
Appeal from an order denying a new trial after the dismissal of an action for damages for the wrongful acts of the defendant, alleged in the complaint as follows:
Plaintiff is engaged in business at Mankato in this state as a confectioner and retail dealer in cigars and conducts a pool-room in connection therewith. Defendant is a business competitor. For two or three years prior to the commencement of this action defendant has endeavored to destroy plaintiff's business and compel him to abandon it. To accomplish his purpose, he purchased the building occupied by plaintiff under a lease and began an action to dispossess him on the ground that he permitted gambling on the demised premises in violation of the covenants in the lease. After the action was finally determined in this court (Zotalis v. Cannellos, 138 Minn. 179, 164 N. W. 807, L.R.A. 1918A, 1066), without warrant of law, he caused plaintiff to be evicted from the building. Each of these acts was malicious and intended to injure plaintiff in his business. Later, when plaintiff had made a profitable sale of part of his business, defendant maliciously interfered with the sale and induced the purchaser "to back out," to plaintiff's loss and damage. Still later, when plaintiff had agreed on a sale to another purchaser of the same part of his business, defendant endeavored to persuade the purchaser to break the contract of sale, representing to him that plaintiff would cheat him if he dealt with him, and offering to pay money to a relative of the purchaser if he would break up the impending sale. It is not alleged the defendant's interference caused this sale to fall through.
The complaint also contains a general allegation that, in other ways not specified, defendant wrongfully interfered with plaintiff's business not to serve any legitimate interest of his own, but solely with the design of injuring and destroying such business.
It then alleges that defendant slandered plaintiff by charging him with being "crooked," and that the charge was made for the purpose of injuring plaintiff in his business.
Defendant interposed an answer containing a general denial, an admission of the purchase of the building referred to, and an allegation that the judgment in Zotalis v. Cannellos was a bar to a claim for damages for the alleged wrongful eviction of plaintiff from the building. The reply was a general denial.
At the opening of the trial, defendant moved that plaintiff be required to elect upon which of the two claims stated in the complaint he would rely for a recovery, and also objected to the introduction of any evidence in support of the complaint insofar as it charged him with having slandered the plaintiff. At the conclusion of an extended discussion, participated in by the court and counsel, the court said: "The court holds that such a cause of action (one for malicious interference with plaintiff's business) pleaded with a cause of action in slander is inconsistent, a misjoinder, and requires an election." Plaintiff's counsel declined to elect, stating that, if plaintiff was required to elect before proceeding, he could not offer any evidence. The court then granted defendant's motion for a dismissal for want of prosecution, and this appeal followed.
1. If it be assumed that the complaint stated several causes of action not inconsistent with each other, but improperly joined in the same complaint contrary to the provisions of section 7780, G. S. 1913, defendant was required to take advantage of such misjoinder by demurrer or answer and, having failed to do so, he waived his right to attack the complaint on that ground. Section 7755, G. S. 1913; 2 Dunnell, Minn. Dig. § 7508.
2. If it be assumed that it either stated several causes of action which were inconsistent, or contained a double statement of a single cause of action, it was within the discretion of the court to compel an election. Hawley v. Wilkinson, 18 Minn. 468 (525); Plummer v. Mold, 22 Minn. 15; Hause v. Hause, 29 Minn. 252, 13 N. W. 43; Davis v. Severance, 49 Minn. 528, 52 N. W. 140. Illustrations of a double statement of facts constituting but one cause of action may be found in Theodore Wetmore & Co. v. Thurman, 121 Minn. 352, 141 N. W. 481, and Kinzel v. Boston & Duluth F. L. Co. 124 Minn. 416, 145 N. W. 124. It is clear that the complaint in the present case does not contain a double statement of a single cause of action.
3. Does it set forth several inconsistent causes of action improperly mingled and stated as a single cause of action? We think it does not. The gist of the action is injury to plaintiff caused by a series of wrongful acts alleged to have been done to destroy his business. Even the defamatory language is...
To continue reading
Request your trial