Chitwood v. McMillan
| Decision Date | 01 February 1939 |
| Docket Number | 14812. |
| Citation | 1 S.E.2d 162,189 S.C. 262 |
| Parties | CHITWOOD v. McMILLAN. |
| Court | South Carolina Supreme Court |
E J. Best, of Columbia, for appellant.
John M. Daniel, Atty. Gen., J. Ivey Humphrey, Asst. Atty. Gen., D W. Robinson, of Columbia, and W. R. Symmes, of St. Matthews for respondent.
The cause of action alleged is respondent's tortious and malicious interference with the contractual relations of the appellant with William F. Bowe, Jr., a road contractor. The appellant suffered a nonsuit and he appeals.
It appears that sometime in August, 1936, a contract was awarded to William F. Bowe, Jr., by the South Carolina State Highway Department for certain road construction work in Kershaw County. This contract provided among other things for the removal of buildings and structures from the right of way and Bowe entered into a written agreement with A. B. Chitwood & Son, a firm composed of A. B. Chitwood and his son, M. B. Chitwood, as subcontractors, to do this work.
A. B. Chitwood & Son were arranging to undertake the performance of their contract when the following letter was received from Mr. Bowe:
The letter which was enclosed from Mr. McMillan reads as follows:
The appellant charges that the respondent was actuated by personal malice towards him in writing this letter and that it constituted a malicious and unlawful interference with his contractual relations with Bowe.
The respondent is one of the engineers of the Highway Department and had supervision over the construction work in Kershaw County described in the contract between Wm. F. Bowe, Jr., and the South Carolina State Highway Department. By his answer he denied generally the allegations of the complaint, and as a further defense alleged that if there was such a contract with Bowe, the latter had no authority to enter into the same with the appellant without first complying with the requirements set forth in his contract with the Department.
The contract between the Highway Department and Bowe contained the standard provision that the contract "shall not be sublet, assigned, or otherwise disposed of, either in whole or in part, except with the written consent of the Chief Highway Commissioner". It further provided that before such consent should be requested, the contractor "shall submit evidence that the party to whom it is proposed to make assignment is competent and responsible, together with a statement from the Surety Company concerned showing that the contract bond is authorized to cover all operations and obligations of the proposed assignee."
The lower court, inter alia, upheld the contention of the respondent. One of the grounds upon which the non-suit was granted was that the subletting was never consented to by the Department and hence there was no valid existing contract with which the respondent could have interfered subjecting him to liability.
The appellant testified that he was familiar with the specifications of the Highway Department incorporated in its contract with Bowe which required the consent of the Department in writing before a subletting of the contract could be effected or a sub-contractor be employed. Knowing this, he offered no testimony either that the Chief Highway Commissioner had approved the sub-contract in writing or that Bowe had submitted satisfactory evidence of the competency and responsibility of A. B. Chitwood & Son, or that Bowe had filed a statement from his surety extending the bond coverage to A. B. Chitwood & Son. Nor did he offer to prove that these things would have been done but for the interference of the respondent.
An examination of the authorities shows that the first recognition of a distinct cause of action for the interference by a third person with a contractual relationship arose in those cases where a third person interfered with the relation of master and servant. The recognition of a cause of action in such cases finally led to decisions wherein it was held that the right of action for maliciously procuring a breach of contract is not confined to cases where the relation between the parties is that of master and servant, or to cases of contracts for personal services, but extends to other contracts as well. Angle v. Chicago, etc. R. Company, 151 U.S. 1, 14 S.Ct. 240, 38 L.Ed. 55; 12 C.J. 604, Section 161; Raymond v. Yarrington, 96 Tex. 443, 72 S.W. 580, 73 S.W. 800, 62 L.R.A. 962, 97 Am.St.Rep. 914, 97 Am.St.Rep. 914.
The theory of this doctrine is that the parties to a contract have a property right therein, which a third person has no more right maliciously to...
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