City of Boston v. Simmons

• Decision Date: 02 January 1890
• Parties: CITY OF BOSTON v. SIMMONS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

150 Mass. 461

23 N.E. 210

CITY OF BOSTON v. SIMMONS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 2, 1890

A demurrer thereto, on the ground that the gist of the action was a conspiracy, was sustained, and judgment ordered for defendants. Plaintiff appeals.

COUNSEL

A.J Bailey, for appellant.

S.J Thomas and A. Russ, for appellee Wilson.

OPINION

DEVENS J.

The averment of a conspiracy in the declaration does not ordinarily change the nature of the action, nor add to its legal force or effect. The gist of the action is not the conspiracy alleged, but the tort committed against the plaintiff, and the damage thereby done it wrongfully. Where damage results from an act which if done by one alone would not afford ground of action, the like act would not be rendered actionable because done by several, in pursuance of a conspiracy. Wellington v. Small, 3 Cush. 145; Parker v. Huntington, 2 Gray, 124; Hayward v Draper, 3 Allen, 552; Randall v. Hazelton, 12 Allen, 417; Bowen v. Matheson, 14 Allen, 499. On the other hand, when the tort committed and the damage resulting therefrom proceed from a series of connected acts, the averment that they were done by several in pursuance of a conspiracy does not so change the nature of the action that if the wrongful acts are shown to have been done by one only, it cannot be maintained against him alone, and the other defendants exonerated. As it would be necessary in the case at bar, in order that both defendants should be held responsible, to prove a combination and united action on their part, the allegation of a conspiracy is a convenient and proper mode of alleging such combination and action. For any other purpose it is wholly immaterial. The declaration to which the defendants have demurred, and the allegations which we must take for this hearing to be true, omitting the expletives by which they have been characterized, are that Simmons was a member of the water board of the city of Boston, which board was empowered and authorized to purchase for the city land for the purpose of constructing a reservoir; that he knew and had a share in determining the action of the board in making such purchase, and further, that Wilson had knowledge of the position, knowledge, and authority of Simmons; that together, taking advantage of this, and intending to defraud the plaintiff, it was agreed corruptly between them that Simmons would inform Wilson of the doings of the board in the selection of the land, and of the price which they should consider suitable for a site for said reservoir; that they further agreed that Wilson should become the purchaser of this lot; that it should afterwards be purchased by the board at an advanced price; and that the profits should be divided between themselves. The declaration further avers that in pursuance of this agreement Simmons did impart to Wilson that the board had considered a particular lot suitable for a reservoir; that it was then bought by Wilson; that thereafter the board, influenced by Simmons, did purchase this land for the city at an advanced price from Wilson; and that Wilson and Simmons divided the profits of the transaction. If this whole transaction, as described by the declaration, had been conducted by Simmons alone, without aid from or intervention of Wilson; if, knowing the determination of the board that the lot in question was suitable for the purpose, he had himself purchased it, and then, availing himself of his influence with the board, had induced it to purchase the lot from him at an advanced price,--he certainly would have been liable to the city for the injury occasioned by this abuse of his trust. He was one of the officials of the city, acting on its behalf, bound to act in good faith to make a proper selection of the lot for a reservoir, and to have it purchased at the most reasonable price. Rice v. Wood, 113...