Frank H. Gibson v. Omaha Coffee Co., 35793

• Citation: 133 N.W.2d 462,178 Neb. 329
• Decision Date: 26 February 1965
• Docket Number: No. 35793,35793
• Parties: FRANK H. GIBSON, INC., a Corporation, Appellant-Cross-Appellee, v. OMAHA COFFEE COMPANY, a Corporation, et al., Appellee-Cross-Appellants.
• Court: Supreme Court of Nebraska

Page 462

133 N.W.2d 462

178 Neb. 329

FRANK H. GIBSON, INC., a Corporation, Appellant-Cross-Appellee, v. OMAHA COFFEE COMPANY, a Corporation, et al., Appellee-Cross-Appellants.

No. 35793.

Supreme Court of Nebraska.

Feb. 26, 1965.

Syllabus by the the Court

1. Conspiracy to injure another's business when executed to its damage, is actionable if induced by malice, without the justification of competition, the service of any lawful purpose, or if its object was accomplished by fraud or other illegal means.

2. One who causes loss of business to another merely by engaging in a business or occupation in good faith is not liable to the other for the loss so caused, even though the knows the loss will result.

3. A combination of individuals may perform acts themselves or cause other persons to do them, by reason of which rights of third persons will be injuriously affected, as long as there is lack of malice or ill will and so long as no definite legal right of such person is violated.

4. It is a question of fact to be determined by a jury whether or not there exists malice or ill will, if the evidence thereon is conflicting or of a doubtful character. If the evidence is of such a character than one conclusion can be reasonably drawn therefrom, the court alone should dispose of the question.

Pilcher, Howard & Hickman, Omaha, for appellant.

Fraser, Stryker, Marshall & Veach, Omaha, for appellees.

Heard before WHITE, C. J., CARTER, SPENCER, BOSLAUGH, BROWER, JJ., and POLLOCK and SIDNER, District Judges.

SIDNER, District Judge.

Plaintiff Frank H. Gibson, Inc., is a corporation, which for many years had been engaged in selling tea and coffee to institutions in the Omaha area. The principal stockholder and president was Edgar J. Bellows. The defendant Kenneth Loseke was the owner of a small interest of stock in the company, and was the nominal secretary, although the record shows that he had no part in determining company policy. Loseke was in charge of a force of four salesmen who sold and delivered the coffee to the institutions. Plaintiff company in its sale to its various customers generally furnished the coffee-making equipment. Plaintiff company was engaged in a highly competitive business, and during 4 of the last 5 years had either shown no profit, or had lost money in its operations. The president, Edgar J. Bellows, was 74 years of age. He was desirous of selling the business of the plaintiff company and proceeded to negotiate the sale thereof through his accountant Rosenblum.

Rosenblum contacted two principal companies that might be interested in the purchase of the business. The first was the defendant E. C. Conroy Coffee Company of Kansas City, Missouri. Conroy was principally a supplier of coffee, and during the last 2 years was the sole supplier of coffee to the plaintiff company, with an annual gross business to plaintiff in the amount of $150,000. The second company contacted was the Continental Coffee Company of Chicago, which was a large dealer in institutional coffee on a nationwide basis, and which also had institutional coffee routes in Omaha.

After the original negotiations had been entered into by Rosenblum, both Conroy and Continental investigated the operations of plaintiff company, and both came to the conclusion that before the good will value of the business could be established, it would be necessary to determine whether or not Loseke would remain with the purchaser of the assets of the corporation. Also, all parties agreed that whatever Loseke did, the salesmen working under him would probably also do.

Conroy, in order to determine the bid it would make, contacted Loseke and the other employees. They secured from Loseke, with the consent of Bellows, a list of all the equipment owned, and its location, so that they might value it. It becomes evident from later evidence that they probably had assurance from Loseke and the other employees that if Conroy purchased the assets, they would go to work for the Conroy Company, and that Conroy would hire the whole group. Furthermore, if the business was sold to Continental the employees would not work for it if Conroy offered them jobs. In these negotiations, Conroy was represented by its officers, Ralph Clark and David Clark. There is no question here but that their acts were those of the Conroy Coffee Company.

The defendant Omaha Coffee Company was a corporation in the process of organization, set up by the Conroy Company through the Clarks, and the dealings between any of these parties are legally attributable to the Conroy Company so far as this opinion is concerned.

At no time while employed by plaintiff did Loseke or other employees have a contract of employment. Continental offered Loseke a favorable contract of employment as far as pay was concerned. It did, however, have a clause forbidding him for 1 year to participate in the only kind of work he knew if he ever left Continental's employment.

No firm contract of employment was ever offered any of the other employees by Continental.

On September 21, 1962, representatives of Conroy, having prepared an offer of purchase, met with Bellows and his attorney Pilcher in Pilcher's office. A proposed contract of sale of the business had been prepared. Bellows stated that the offer was far too low, and demanded much more. A conroy Company representative then replied in substance that it was going to stay in Omaha, and that by Monday morning it would have plaintiff's employees working for it even if plaintiff did not sell the business to Conroy. Bellows then made the statement that he would sue and enjoin every party engaged in any such enterprise, whereupon the meeting broke up.

Subsequent to this date, negotiations...