Canellos v. Zotalis

• Decision Date: 01 April 1920
• Docket Number: No. 21614.,21614.
• Citation: 145 Minn. 292,177 N.W. 133
• Parties: CANELLOS v. ZOTALIS.
• Court: Minnesota Supreme Court

145 Minn. 292

177 N.W. 133

CANELLOS

v.ZOTALIS.

No. 21614.

Supreme Court of Minnesota.

April 1, 1920.

Appeal from District Court, Blue Earth County; W. L. Comstock, Judge.

Action by Peter Canellos against Chris. Zotalis. Action dismissed, plaintiff's motion for new trial denied, and he appeals. Order reversed, and new trial granted.

Syllabus by the Court

If a complaint states several causes of action not inconsistent with each other, but improperly joined contrary to the provisions of section 7780, Gen. St. 1913, defendant can take advantage of such misjoinder only by demurrer or answer.

If a complaint states several inconsistent causes of action, or contains a double statement of a single cause of action, it is within the discretion of the court to compel an election.

A complaint, which charges defendant with wrongfully and maliciously injuring plaintiff's business by interfering with and preventing a profitable sale of a portion thereof, and with the utterance, for the same purpose, of defamatory language concerning plaintiff, does not contain a double statement of a single cause of action, nor does it improperly mingle several inconsistent causes of action and state them as a single cause of action.

Two causes of action are not inconsistent unless they are contrary to one another, so that if one exists the negation or falsity of the other is necessarily inferred (citing Words and Phrases, Inconsistent).

No person has the right maliciously to injure or destroy the business of another by acts which serve no legitimate purpose of his own. To interfere with a profitable sale made by a business competitor by inducing the purchaser to break the contract of sale amounts to an actionable tort. An act of that kind and a slander intended to injure a competitor in his business, may be pleaded in the same complaint, as each wrongful act is connected with the same subject of action. C. J. Laurisch, of Mankato, and Moonan & Moonan, of Waseca, for appellant.

S. B. Wilson, of Mankato, for respondent.

LEES, C.

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 slandred 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 in so far 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] 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 Dunn. 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....