Dulaney v. Buffum

• Decision Date: 17 March 1903
• Parties: DULANEY et al., Appellants, v. BUFFUM et al
• Court: Missouri Supreme Court

73 S.W. 125

173 Mo. 1

DULANEY et al., Appellants, v. BUFFUM et al

Supreme Court of Missouri, Second Division

March 17, 1903

Appeal from Saline Circuit Court. -- Hon. Samuel Davis, Judge.

Appeal dismissed.

Burks & Sterrett, Harvey & Gower, and W. M. Williams for appellants.

(1) The error complained of is the action of the trial court in sustaining a demurrer to plaintiffs' evidence. The court in passing upon the question whether plaintiffs have a case for the jury, must give the most favorable interpretation to the facts that can reasonably be put upon them, and draw every fair inference in favor of the plaintiffs that the evidence warrants. Young v. Webb City, 150 Mo. 333; Bender v. Railroad, 137 Mo. 240; Bank v Simpson, 152 Mo. 638. (2) While plaintiff's lumberyard was located at Slater, they had also worked up a trade at other points along the line of the Chicago & Alton railroad and had an established business and customers at such other points. They had, in fact, contracted to furnish lumber to consumers at some of said places. The association of which the defendants were officers and members, was formed to prevent such business as plaintiffs desired to carry on and were carrying on. Defendants conspired together to break up and destroy plaintiffs' business at other points than Slater, and to prevent them from dealing in lumber at places where they did not have a lumberyard located. Defendants agreed among themselves that no one should deal in lumber at a place where the defendants' association had a member unless such dealer kept at said place a stock amounting to as much as five carloads of lumber. Wholesalers were not permitted to sell to the plaintiffs under a penalty of expulsion from the association, if members thereof, and a fine of twenty-five dollars per car for each car sold to plaintiffs; and other wholesalers were threatened with a boycott of their business in the event of their refusal to abide by the rules of the association prohibiting sales to plaintiffs. Defendants, through their said association, directly interfered with and prevented sales to plaintiffs, not only by their own members, but by outsiders. This was done for the purpose of preventing competition with members of defendants' association, and to destroy plaintiffs' business at other points than that at which their yard was located. The evidence showed a direct damage to plaintiffs in consequence of the conspiracy formed to break up their business and to prevent wholesalers from selling lumber to them to be handled at other places than their yard at Slater. The evidence entitled plaintiffs to go to the jury, and the court erred in giving a peremptory instruction to the contrary. The case comes directly within the rule laid down in Jackson v. Stanfield, 23 L. R. A. 588; Olive v. Van Patton, 25 S.W. 428; Doremus v. Hennessy, 176 Ill. 608; Graham v. Railroad, 47 La. Ann. 214; Delz v. Winfree, 16 S.W. 111; Moore v. Bennet, 15 L. R. A. 361; Hawarden v. Coal Co., 87 N.W. 472. (3) The fact that at one time plaintiffs were members of this association constitutes no defense, and will not prevent a recovery by them. Ertz v. Produce Exchange Co., 84 N.W. 743.

Elijah Robinson, Stuart Carkener and Rector & Lyons for respondents.

(1) A conspiracy is defined as a combination of two or more persons by some concerted action to accomplish some unlawful purpose, or to accomplish some purpose not unlawful, by unlawful means. State v. Davis, 80 Mo.App. 239; Commonwealth v. Hunt, 4 Met. (Mass.) 111; Cooley on Torts, p. 279. (2) That the things shown by the evidence in this case to have been done by defendants, if done by them individually, were not unlawful, is indisputable under all the authorities. A person may deal or refuse to deal with any other person or class of persons, for no reason or any reason, whether good, bad or indifferent. Cooley on Torts, pp. 278 and 688; Payne v. Railroad, 13 Lea 507, 49 Am. Rep. 666; Snow v. Wheeler, 113 Mass. 139; Walker v. Cronin, 107 Mass. 179; Morris v. Tuthill, 72 N.Y. 575; Haywood v. Tillson, 75 Me. 225, 46 Am. Rep. 373; Mogul Steamship Co. v. McGregor, 23 Q. B. Div. 598, App. Cases 25. (3) An act lawful when done by one person, does not become unlawful because done by the concerted action of a number of persons. It could only become so by reason of unlawful means used for its accomplishment, which would likewise be true of an act done by an individual. Hunt v. Simonds, 19 Mo. 583; Bohn Mfg. Co. v. Hollis, 54 Minn. 223, 40 Am. S. Rep. 323. (4) If an act is not unlawful, then a threat to do such act is not a threat in law -- cannot be legal intimidation. So the same is true of an alleged conspiracy. If the acts done or threatened are not unlawful, then the agreement is not a conspiracy in law. Payne v. Railroad, 49 Am. Rep. 674; Alexander v. Relfe, 9 Mo.App. 144; Kimball v. Harmon, 34 Md. 407, 6 Am. Rep. 340. (5) It is not unlawful for persons engaged in the same business, to unite for the protection and benefit of their common interests, in an agreement not to deal with any one who is engaged in the same business and who carries on or conducts his business in such a way as has a tendency to injure or destroy the business of those so united, as well as being prejudicial to the interests of the public. Neither is it unlawful for them, in the furtherance of their object, to advance and protect their own business interests, to agree not only not to deal with such party, but likewise to use their influence to prevent others from so doing. The fact that loss of business or other damage results, would not in such case make such action, either of the individual or of the association, done solely for the protection of their own business interests, unlawful or a ground for action. Bohn Mfg. Co. v. Hollis, 54 Minn. 223, 40 Am. St. R. 319; Cote v. Murphy, 159 Pa. 420, 23 L. R. A. 135; Bowen v. Matheson, 14 Allen (Mass.) 499; Maculey v. Tierney, 19 R. I. 255, 61 Am. St. R. 770; Brewster v. Miller, 41 S.W. 301, 38 L. R. A. 505; Anderson v. United States, 171 U.S. 604; Glencoe Land Co. v. Hudson Com. Co., 138 Mo. 439; Hunt v. Simonds, 19 Mo. 583; Mogul Steamship Co. v. McGregor, 23 Q. B. Div. 598, App. Cases 25; Allen v. Flood (House of Lords), Appeal Cases 1898, p. 1. (6) The agreement of the members of the association not to deal with wholesalers who should sell to consumers, and sending notices to wholesalers to that effect, and the publication, in the official paper of the association, of the names of the wholesalers who made a practice of selling to consumers does not amount to such coercion or intimidation as to make such acts unlawful. The wholesalers are left to their choice just as are the members of the association; the latter to act as their interests dictate, and the former being at perfect liberty to do the same for themselves. Cote v. Murphy, 23 L. R. A. 135, 159 Pa. 420; Macauley v. Tierney, 19 R. I. 255.

OPINION

FOX, J.

This was a suit begun by the appellants in Saline county, on December 31, 1897. There was a trial of this cause at the February term, 1899, of the circuit court of Saline county. At the close of the evidence on the part of the plaintiff, the court instructed the jury to find the issues for the defendant; in accordance with such direction by the court, the jury rendered a verdict for the defendant, and judgment was rendered in pursuance of the verdict. The motion for new trial having been overruled, plaintiffs in due time and form prosecute their appeal to this court.

At the April term, 1902, of this court, defendants Frank W. Buffum and La Crosse Lumber Company filed their motion to dismiss, as to them, to which motion was attached a receipt for $ 750, in settlement with these two defendants of all claims against them, on account of the charges alleged in the petition; also a letter from the plaintiffs to one of the defendants, stating that they had directed the discontinuance or dismissal of this case, against these two defendants, which motion and release thereto attached is as follows:

"Now come F. W. Buffum and the LaCrosse Lumber Company, two of the above named defendants and move the court to dismiss as to them in said cause and for reasons therefor state that plaintiffs and the said defendants F. W. Buffum and the LaCrosse Lumber Company have fully settled the matter of differences between them, complained of in said cause, as fully shown by the receipt and letters hereto attached, and said plaintiffs, as shown by this said letter, agree to dismiss said cause in this court as to them.

"William J. Dulaney and S. J. Dulaney composing the firm of Dulaney Brothers, plaintiffs, against Frank W. Buffum, La Crosse Lumber Company, H. C. Taylor, R. J. Hurley, George D. Hope, A. A. White and Harry Gorsuch, defendants.

"Received from Frank W. Buffum and La Crosse Lumber Company, two of the defendants in the above-entitled cause, which was instituted in the circuit court of Saline county, Missouri, and is now pending in the Supreme Court of said State, the sum of seven hundred and fifty dollars, the same being in full settlement and satisfaction of all claims and demands in our favor, or in favor of either of us, on account of the matters and things set up or referred to in the petition in the above entitled suit, so far as said two defendants are concerned; and we hereby agree to at once discontinue and dismiss said suit so far as said two defendants are concerned. In witness whereof we have hereunto set our hands this 14th day of December, 1901, at Slater, Saline county, Missouri.

"W. P. Dulaney,

"S. J. Dulaney,

"Dulaney Bros.,

"By S. J. Dulaney."

The motion as above quoted was sustained and on the same day, at the April term, 1902, the other defendants in this cause filed their motion...