Fernandez v. LaMothe

• Decision Date: 05 April 1910
• Citation: 127 S.W. 408,147 Mo.App. 644
• Parties: M. J. FERNANDEZ, Appellant, v. CHARLES LaMOTHE et al., Respondents
• Court: Missouri Court of Appeals

127 S.W. 408

147 Mo.App. 644

M. J. FERNANDEZ, Appellant, v. CHARLES LaMOTHE et al., Respondents

Court of Appeals of Missouri, St. Louis

April 5, 1910

Appeal from St. Louis City Circuit Court.--Hon. Geo. H. Williams Judge.

AFFIRMED.

STATEMENT.--Final judgment was rendered upon a demurrer to the petition which we transcribe:

"Now comes the plaintiff in the above entitled cause, and, by leave of court first had and contained, files this her amended petition and states that she is engaged in the business or occupation of selling timber lands for others on commission; that on or about the 10th day of October, 1907 she was employed by the defendant, Charles L. LaMothe, to sell, trade or exchange his interest in a timber lease on a tract of about 4700 acres of growing timber or timber stumpage in Pemiscot county, Missouri, giving her exclusive handling of said tract, being parts or all of sections 1, 2, 3, 4, 9, 10, 11, 15, 33, 34 and 35 in township 19 north ranges 11 and 12 east, known as the 'Byrd & McComb Lands,' including a sawmill and all machinery used in connection with the same; that defendant, Charles L. LaMothe agreed to pay plaintiff as commission for making such sale, trade or exchange, the sum of $ 2623, which was the agreed price of 56 cents per acre on the entire tract of 4700 acres; that agreeable to such employment, plaintiff advertised said property and corresponded with others and found customers in Allegheny and Pittsburg, Pennsylvania, in the persons of defendants A. F. Schwerd and Hugh Murphy, who were willing to exchange Allegheny county real estate owned by them for the property of said defendant LaMothe above described; that said defendants Schwerd and Murphy, after an examination of the timber and mill of said defendant LaMothe were satisfied with the same, and on or about the 10th day of June, 1908, the defendant LaMothe and his co-defendants, Murphy and Schwerd, entered into a written contract, whereby said LaMothe agreed to exchange the property above described for 54 lots of ground in the county of Allegheny, Pennsylvania, owned by said Schwerd and Murphy, the value of the property to be transferred by each of the respective parties being agreed upon as $ 40,000. That on the execution of said contract as aforesaid, plaintiff's work was completed, and the said defendant, Charles L. LaMothe, became indebted to plaintiff in the said sum of $ 2632, as commissions for her services in effecting such exchange, and that no part of the same has been paid to plaintiff, though often demanded.

"Plaintiff further states that thereafter said defendant Charles L. LaMothe, entered into an agreement, combination and conspiracy with his co-defendants, Hugh Murphy and A. F. Schwerd, for the sole purpose of cheating and defrauding the plaintiff out of said commissions so earned as aforesaid by her from said Charles L. LaMothe, and in pursuance of said agreement, combination and conspiracy and with full knowledge of all the facts and with the sole purpose of cheating and defrauding the plaintiff, said defendants agreed among themselves to rescind or abandon said written contract above described, and did rescind, abandon and hold for naught said written contract, and did, thereupon, in pursuance of said conspiracy, combination and agreement and for the further fraudulent purpose of enabling the said Charles L. LaMothe to speedily and easily conceal or dispose of his property and effects and thus hinder, delay and prevent the plaintiff from collecting her just demands against him, said defendants did, on the day of , 1908, cause all the right, title and interest of the said Charles L. LaMothe in and to said timber and sawmill, etc., to be transferred to the defendant, Wardell Land & Lumber Company, which had been formed and incorporated under the laws of the State of Missouri by said defendants, LaMothe, Schwerd and Murphy; that said Wardell Land & Lumber Company was organized and incorporated for the sole purpose of aiding said defendant Charles L. LaMothe, to conceal his property and assets and prevent the realization of any judgment the plaintiff might obtain against him. And in pursuance of said purpose said defendant Charles L. LaMothe, has been enabled to and has disposed of his interest in said company, or all except a nominal portion thereof, and although the property owned by the said Charles L. LaMothe, who was at the time of the execution of the written contract for exchange hereinbefore mentioned, seized and possessed of tangible assets subject to execution of not less than $ 40,000 in value, yet, by reason of the wrongful and fraudulent acts above complained of and by reason of the assistance, aid, connivance and procurement of his co-defendants, Schwerd and Murphy, in pursuance of said unlawful agreement, combination and conspiracy, as above set forth, said Charles L. LaMothe, has secreted, concealed and disposed of all his said property, for the purpose of cheating and defrauding this plaintiff and rendering valueless any judgment which she might obtain against him, to plaintiff's damage in the sum of $ 2632. Wherefore plaintiff asks judgment against said defendants in the said sum of $ 2632, with interest thereon from said 10th day of June, 1908, and for costs."

Judgment affirmed.

Julian Laughlin for appellant.

(1) The petition states a cause of action against the defendant LaMothe, and the damage is a definite sum, $ 2632. (2) When the plaintiff has a well defined cause of action against one of the defendants, she may join with LaMothe anyone who knowingly and wrongfully aided and assisted LaMothe in accomplishing the act which caused the damage to plaintiff. (3) The act complained of is forbidden by the laws of Missouri, and is an unlawful act. Sec. 1931, R. S. 1899. (4) "A conspiracy to do an illegal thing is actionable, if injury proceed from it." Halderman v. Martin, 10 Barr, 372. (5) "In a civil action on the case for conspiracy, the gist of the action is the damage which the plaintiff has sustained by the acts of the defendants, and the allegation of a conspiracy need not be proved. " Hunt v. Simonds, 19 Mo. 588; Holborn v. Naughton, 60 Mo.App. 101. (6) "Fraudulent collusion may be inferred from facts and circumstances not consistent with an honest purpose." Schultz v. Christman, 9 Mo.App. 588. "Persons conspiring together by their false and fraudulent representations, causing lands to be sold at a sacrifice, will be liable in damages for the injury done." Wickersham v. Johnson, 51 Mo. 313.

Jos. Barton for respondents.

(1) Appellant's amended petition is fatally defective. This is apparent upon its face. To declare that certain acts constitute and actionable conspiracy, is not sufficient. (2) This is an action on the case for damages, alleged to have been occasioned by an unlawful conspiracy. In a criminal sense, the gist of the offense lies in the unlawful combination to do an unlawful act, regardless of whether the particular act was accomplished or not. In the civil sense, the conspiracy or combination is nothing, so far as sustaining the action goes, and the allegation that a conspiracy was formed, need not be proved. The gist of the action is the damage alleged to have been done to the plaintiff. 6 Am. and Eng. Ency. Law, 872, 873, 874; Hutchins v. Hutchins, 7 Hill (N.Y.) 107; Wellington v. Small, 3 Cush. (Mass.) 145; Doremus v. Hennessy, 62 Ill.App. 391. Appellant, therefore, does not state a case by merely alleging that there was a conspiracy or combination to do an injurious act. Adler v. Fenton, 24 How. (U.S.) 407.

OPINION

GOODE, J. (after stating the facts)....