Downey v. United Weatherproofing
| Decision Date | 09 January 1953 |
| Docket Number | No. 1,No. 43057,43057,1 |
| Citation | 253 S.W.2d 976,363 Mo. 852 |
| Parties | DOWNEY et al. v. UNITED WEATHERPROOFING, Inc. et al |
| Court | Missouri Supreme Court |
Norman, Foulke & Warten, Joplin, for appellants.
Keller, Burnett & Wilbert, Pittsburg, Kan., Bond & Bond, Ray Bond and John S. Bond, Joplin, for respondent, United Weatherproofing, Inc.
Plaintiffs-appellants, Floyd E. Downey and Tommie Hampton, doing business as Reliable Weatherproofing Company, by their first amended petition in three counts sought the recovery of damages actual and exemplary aggregating $25,142.50, and injunctive relief.
This is a second appeal. The instant action was originally instituted against defendant United Weatherproofing, Inc., and two individual defendants. The corporate defendant, United Weatherproofing, moved separately to dismiss the petition on the ground that no count thereof stated a claim upon which relief could be granted against defendant corporation. The separate motion filed by defendant corporation was sustained, and a judgment of dismissal was entered from which judgment plaintiffs appealed. However, the transcript of the record upon the first appeal did not disclose any disposition of the cause as to the individual defendants, and this court was obliged to dismiss the appeal as premature. Downey v. United Weatherproofing, Mo.Sup., 241 S.W.2d 1007. Thereafter, the cause was reinstated on the docket of the circuit court and the judgment of dismissal theretofore entered by that court was set aside. Plaintiffs voluntarily dismissed their case as to the individual defendants, and the motion to dismiss originally filed by the defendant corporation was again sustained. Plaintiffs have again appealed.
The questions presented upon this appeal are whether plaintiffs' petition states claims upon which legal and equitable relief may be granted for alleged interference by defendant with plaintiffs' business and contractual relations.
In determining if a petition states a claim or cause of action, the averments of the petition are to be given a liberal construction, according the averments their reasonable and fair intendment--fair implication should be indulged from the facts stated. So considered, a petition should be held sufficient if its averments invoke substantive principles of law which entitle plaintiff to relief. A petition is not to be held insufficient merely because of a lack of definiteness or certainty in allegation or because of informality in the statement of an essential fact. Zuber v. Clarkson Const. Co., 363 Mo.----, 251 S.W.2d 52; Boyer v. Guidicy Marble, Terrazzo & Tile Co., Mo.Sup., 246 S.W.2d 742; Gerber v. Schutte Inv. Co., 354 Mo. 1246, 194 S.W.2d 25; Stephens v. Kansas City Gas Co., 354 Mo. 835, 191 S.W.2d 601; Section 509.250, RSMo 1949, V.A.M.S.
Plaintiffs in their first amended petition allege that they were individuals engaged in the weatherproofing business at Joplin, and that, on April 20, 1950, plaintiffs entered into an agreement in writing with one Elmer Hupperfelt whereby plaintiffs agreed to furnish insulation material and install the same in a house owned by Hupperfelt. Plaintiffs further allege,
'5. On May 3, 1950, defendants with full knowledge of the aforesaid contract existing between plaintiffs and the said Elmer Hupperfelt, and intending to harass, annoy, persecute, injure, destroy and otherwise interfere with the due prosecution of plaintiffs' business, did wrongfully, fraudulently, knowingly, intentionally and maliciously persuade and procure the said Elmer Hupperfelt to repudiate and cancel the said contract made as aforesaid with plaintiffs and induced him to enter into a contract with defendant United Weatherproofing, Inc., whereby defendant United Weather-proofing, Inc., installed insulating material in his house.
'6. Defendants persuaded and procured the said Elmer Hupperfelt to repudiate and cancel his said contract with plaintiffs by the use of false, malicious and fraudulent representations, some of which were to the general tenor and effect that plaintiffs were unreliable, insolvent and unable to furnish the goods and services contracted for, and by agreeing in writing to protect and indemnify the said Elmer Hupperfelt against any and all liability he might incur by reason of the breach of said contract he had theretofore entered into with plaintiffs, which said written agreement to indemnify is in words and figures as follows * * *.
The first count continues in alleging plaintiffs' damages and prayed for judgment therefor.
In the second and third counts of their petition plaintiffs allege as follows,
'For another and further cause of action against defendants, plaintiffs adopt Paragraphs 1, 2 and 3 of Count One of this first amended petition, and make the same a part hereof, as though fully set out at length.
'1. Defendants, their servants and agents, intending to harass, annoy, persecute, injure, destroy, and otherwise interfere with the due prosecution of plaintiffs' business, did (and still do) induce, procure, persuade and entice plaintiffs' customers to have no business relations or transactions with the plaintiffs; and defendants, their servants and agents, have gone out into localities wherein plaintiffs had an active business and were actively engaged in the prosecution of their business, and there among the public at large and plaintiffs' prospective customers and those under contract with the plaintiffs, did procure, persuade and induce the public at large and plaintiffs' customers to refrain from doing business with the plaintiffs, and defendants, their servants and agents have procured, induced, sought and persuaded plaintiffs' customers, who had heretofore had business relations with plaintiffs, to break their contract (s), and refuse to further treat with plaintiffs as required by the various contracts had with various customers of the plaintiffs.
customers to cease business relations with plaintiffs, and plaintiffs' prospective customers to refuse to treat with plaintiffs, made false, fraudulent and malicious representations to plaintiffs' customers and prospective customers, some of which were to the general tenor and effect that plaintiffs were unreliable, insolvent and unable to furnish the goods and services contracted for; and defendants, their servants and agents, would offer to enter into an agreement with plaintiffs' customers to protect and indemnify said customers against any and all liability they might incur if said customers would break their contract(s) with plaintiffs.
business has been injured in the sum of Five Thousand Dollars.
'4. Plaintiffs are engaged in a lawful undertaking and are entitled to lawfully and peacefully prosecute and pursue their business, and to be protected in their business, property and property rights, and these plaintiffs charge that the acts of defendants, their servants and agents, constitute unwarranted and malicious interference with the due prosecution of plaintiffs' business and is a trespass and injury to the property rights and business of the plaintiffs.
'5. The actions of the defendants, their servants and agents, were and are prompted by malice, and all acts charged herein were done maliciously, fraudulently and without legal justification or excuse.
'Wherefore, plaintiffs pray judgment against defendants * * *.
'For another and further cause of action against defendants, plaintiffs (in their third count) adopt Paragraphs 1, 2, 3, 4, 5, 6 and 7 of Count One of this first amended petition, and make the same a part hereof, as though fully set out at length.
business, defendants are threatening to and will attempt to continue similar unlawful interference with plaintiffs' business unless enjoined and restrained by this Court. Defendants are threatening to use 'all the means at their command', and are attempting to wrongfully, unlawfully and maliciously induce and persuade plaintiffs' customers not to continue their business relations with plaintiffs, and to induce and persuade plaintiffs' customers to cancel and breach contracts which they have entered into with plaintiffs, by offering to protect and indemnify said customers from any and all liability which they might incur by reason of the breach of said contracts, and by the use of false and fraudulent representations, some of which are to the general tenor and effect that plaintiffs are unreliable, insolvent and cannot furnish goods and services contracted for; all for the avowed purpose of preventing plaintiffs from pursuing a lawful business, and of depriving plaintiffs of the benefits of contracts which plaintiffs have negotiated with their customers.
'2. Plaintiffs have no adequate remedy at law, and unless defendants are enjoined and restrained from doing, or attempting to do, the acts above numerated, plaintiffs will suffer irreparable injury.
'Wherefore, Premises considered, plaintiffs pray that the Court make and enter its order herein, permanently enjoining and restraining the defendants, and each of them, their servants agents and employees from sending, conveying or delivering in any way to any person, firm or corporation or association, any notice, verbal or otherwise, upon or against the plaintiffs or their goods, merchandise or service, and from, in any way, menacing, hindering or obstructing the plaintiffs, by interfering with their patronage, business or customers, and from in any way impeding the...
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