James M. Boutwell, v. William Marr,

Decision Date15 February 1899
Citation42 A. 607,71 Vt. 1
PartiesJAMES M. BOUTWELL, et al., v. WILLIAM MARR, et al
CourtVermont Supreme Court

October Term, 1896.

CASE. Trial by jury at the September term, 1895, Washington county Start, J., presiding. Verdict and judgment for the plaintiffs. The defendants excepted.

At the close of the testimony the defendants moved for a verdict for insufficiency of evidence. The motion was overruled.

The jury were permitted to include exemplary damages in their verdict, but were required to report the amount thereof separately.

Judgment reversed, and judgment for actual damages with interest from date of judgment below.

George W. Wing, C. A. Prouty and J. P. Lamson for the defendants cited, State v. Johnson, 40 Kan. 266; People v. Parker, 67 Mich. 222; Spies v. People, 122 Ill. 1; Ford v. State, 112 Ind. 373; State v Weaver, 57 Ia. 730; Benford v. Sanner, 40 Pa. St. 9; State v. Duncan, 64 Mo. 262; State v. Pike, 51 N.H. 105; State v. Ross, 29 Mo. 32; Reid v. State, 20 Ga. 681; Hunter v. Commonwealth, 56 Am. Dec. 121; State v. Arnold, 48 Ia. 566; People v. Irwin, 77 Cal. 494; Clemitt v. Watson, 42 N.E. 367; Manufacturing Co. v. Hollis, 54 Minn. 223; Cote v. Murphy, 159 Pa. St. 420; Commonwealth v. Hunt, 4 Met. 111; Heywood v. Tillson, 75 Me. 225; Manufacturing Co. v. Lumbermen's Association, 21 L. A. R. 337; Carew v. Rutherford, 106 Mass. 1; Jenkins v. Fowler, 24 Pa. St. 308; Longshore, etc., Co. v. Howell, 26 Ore. 527; Delz v. Winfree, 80 Tex. 400; Robertson v. Parks, 76 Md. 118; Kimball v. Harman, 34 Md. 407; Laverty v. Vanarsdale, 65 Pa. St. 507; Hunt v. Simonds, 19 Mo. 583; Bradley v. Pierson, 148 Pa. St. 502; Cooley on Torts, 125, 126, 278; Bowen v. Matheson, 14 Allen 499; Boston Glass Manufactory v. Binney, 4 Pick. 425; Walker v. Cronin, 107 Mass. 555; Steamship Co. v. McGregor, L. R. 21 Q. B. 544; Steamship Co. v. McGregor, L. R. 23 Q. B. 598; Schulten v. Brewing Co., 28 S.W. 504; Randall v. Hazelton, 12 Allen 415.

W. A. Lord, John H. Senter and Dillingham, Huse & Howland, for the plaintiffs, cited, Oxley Stave Co. v. Coopers' Int. Union, 72 Fed. R. 695; Arthur v. Oakes, 63 Fed. R. 310; Callan v. Wilson, 127 U.S. 540, 555; State v. Glidden, 55 Conn. 46, 75; Temperton v. Russel, L. R. (1893), 1 Q. B. D. 715; State v. Stewart, 59 Vt. 273; State v. Dyer, 67 Vt. 690.



On the sixth day of June, 1893, the plaintiffs obtained a bond for the conveyance of a mill in Barre, equipped with machinery for polishing granite; and on the sixteenth day of the month they received a deed and took possession of the property, and became co-partners under the name of the Boutwell Polishing Company. The mill had been operated for several years by the plaintiffs' grantor; and in the interval between the taking of the bond and the receipt of the deed, the plaintiffs saw the patrons of the mill and received assurances of a continuance of their custom, limited in the case of some patrons by the mention of an expectation or a possibility of their putting in polishing machines of their own. From the time of their purchase until November the work of the mill averaged over one thousand dollars a month, that of the last month being but little below that amount. In November the receipts were some less than two hundred dollars. In December and January the mill was without work, and substantially all that it did after that was upon stock purchased by the company from parties outside of Barre. On the nineteenth of April, 1894, the mill was sold to one of the defendants. No complaint was ever made of the plaintiffs' work or their methods of business.

During this time there was an organization in Barre called the Granite Manufacturers Association, which embraced about ninety-five per cent. of all the granite manufacturers in the place. There was also an organization located at Boston, called The Granite Manufacturers Association of New England, with which were connected the local organizations of the New England states, including that at Barre. All the defendants held by the verdict were members of the Barre Association. Neither the plaintiffs' firm nor any of its members were connected with this or any similar organization. Prior to November, 1893, the Barre Association adopted by-laws which prohibited dealings with members not in good standing, and imposed fines for the violation of its rules. On the tenth of November, the Association endorsed a resolution previously adopted by the New England Association, which recommended that none of its members sell any rough stock, partly finished or finished granite, directly or indirectly, to any firm, individual or corporation, engaged in cutting, quarrying or polishing granite in any of the New England states or in New York city, and not a member of the Association. On the twenty-fourth of November, the Association adopted a resolution of the following terms: "Resolved, for the purpose of strengthening the Association, and [for] the mutual protection of its members, [that] no trade shall be conducted with any individual, firm or corporation, engaged in cutting, quarrying or polishing granite, in the State of Vermont, who are not members of this Association."

George Lampson, a defendant, testified that he assisted in the formation of both associations, and had been connected with them ever since; that he was notified by a circular of the action taken November tenth; that the effect of that resolution would be that if a company declined to join the association, no member of the association would thereafter do any business with it. Alexander Gordon, another defendant, testified that he understood that the main reason for the collapse of the plaintiffs' business was the passage of the resolution; that he voted for it, and did so believing that it would have that effect on their business; that after its passage he stopped sending work to the plaintiffs, and that he did so because of that vote.

It appears from the testimony of some of the defendants that during the summer and early fall of 1893 they had several conversations with John W. Dillon, the manager of the plaintiffs' business, in regard to their becoming members of the Association, in which they expressed a desire to have them join. Mr. Kemp, one of the plaintiffs, testified that sometime in November, and after the loss of their business, defendant Kelliher asked him why they wouldn't join the Association, and said they would find out that they would have to join it before they could do any business. Mr. Senter, an attorney for the plaintiffs, testified that in December, defendant Eagan, on coming out from an interview with the plaintiffs, said to him that "they would find out they couldn't do any polishing business until they joined the Association." Mr. Kemp further testified that in January, 1894, he had two interviews with certain defendants, at their suggestion, in which the question of plaintiffs joining the Association was discussed at length. His testimony tended to show that the first of these meetings was with defendants Ady and Gordon, and that Ady remarked that the object of the interview was to see if they could induce the plaintiffs to join the Association, but that they hardly expected to get them to, as they supposed plaintiffs were still stubborn about joining; that later in the conversation he used substantially these words, "I will admit that the effect of that resolution was to destroy the business of your company in one day, but it is my opinion that if you will join the Association you can get your business all back in one day," and that Gordon, on being appealed to by Ady, affirmed his statement; that the second of these interviews was with the defendant J. D. Smith, who said it was true that the action of the Association had had the effect to close plaintiffs' mill, but that he was perfectly confident that it could be started up with all their old customers at once, if they would join the Association.

The defendants have not brought up their exceptions to the charge, but stand on their motion that a verdict be directed for want of sufficient evidence to make them liable. There was clearly evidence tending to show that the defendants undertook to compel the plaintiffs to join the Association by depriving their mill of work, and that they made use of their organization, as a means of concerted action, to accomplish their purpose. But there was no evidence tending to show that the defendants made any attempt to compel persons, not members of the Association, to withhold their patronage, and they insist that they cannot be made liable for simply withholding their own.

The crime of conspiracy consists in a combination of two or more persons to effect an illegal purpose, either by legal or illegal means, or to effect a legal purpose by illegal means. State v. Stewart, 59 Vt. 273. But the grounds of recovery in a civil suit are not identical with the elements of the crime. The law punishes the mere agreement to effect an illegal purpose or to use illegal means. But it is clear that a civil action...

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