Kimball v. Harman

• Decision Date: 01 June 1871
• Citation: 34 Md. 407
• Parties: LEWIS KIMBALL v. ROBERT K. HARMAN and THOMAS B. BURCH.
• Court: Maryland Court of Appeals

34 Md. 407

LEWIS KIMBALL v. ROBERT K. HARMAN and THOMAS B. BURCH.

Court of Appeals of Maryland

June 1, 1871

APPEAL from the Baltimore City Court.

The case is sufficiently stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., STEWART, BRENT, GRASON MILLER, ALVEY and ROBINSON, J.

Samuel Snowden, for the appellant.

John Henry Keene, Jr., for the appellees.

ALVEY J., delivered the opinion of the Court.

This was an action on the case, grounded on an alleged conspiracy by the three defendants to injure the plaintiffs, the present appellees. The declaration contains four counts and charges in substance, that the defendants combined and conspired together to defeat the right of the plaintiffs to receive and possess a certain lot of bedsteads which they had purchased of Kimball, the appellant, and whereby they, the plaintiffs, were subjected to great trouble, delay and vexatious litigation.

The case was tried on the general issue plea of not guilty, and the verdict was in favor of the plaintiffs as against Kimball, the appellant, but acquitted the other two defendants, Thomas H. Hanson and John E. Phillips, and this appeal, therefore, is by Kimball alone.

At the trial, there were several exceptions taken by the defendants to the admissibility of evidence offered by the plaintiffs; and at the close of the evidence there were some seven prayers offered by the defendants for instruction to the jury; but of which prayers only the first and second were granted, and to the refusal of the rest, exception was taken.

Before considering any of the questions raised by these exceptions, it may be proper that we state briefly the general principles that govern cases of this character, as by so doing we may the more readily determine whether there be any sufficient ground disclosed in the record to sustain the plaintiffs' right to recover as against the appellee.

There is no doubt of the right of a plaintiff to maintain an action on the case against several, for conspiring to do, and actually doing, some unlawful act to his damage. But it is equally well-established, that no such action can be maintained unless the plaintiff can show that he has in fact been aggrieved, or has sustained actual legal damage by some overt act, done in pursuance and execution of the conspiracy. Cartrique vs. Behrens, 30 Law J, (2 B.,) 168. It is not, therefore, for simply conspiring to do the unlawful act that the action lies. It is for doing the act itself, and the resulting actual damage to the plaintiff, that afford the ground of the action. Indeed the allegation of conspiracy by the defendants would seem to be immaterial as to the right of action. "A simple conspiracy," says NELSON, Chief Justice, in Hutchins vs. Hutchins, 7 Hill, (New York,) 107, "however atrocious, unless it resulted in actual damage to the party, never was the subject of a civil action, not even when the old form of a writ of conspiracy, in its limited and most technical character, was in use. Then, indeed, the allegation of conspiracy was material and substantive, because, unless established by the proof, the plaintiff failed, as it was essential that the verdict should be against two at least in order to be upheld." The action like the present, therefore, may be brought against one defendant, or, if brought against several, one may be convicted and the others acquitted. But where the action is brought against several, as having combined to do the unlawful act, it is necessary, of course, in order to recover against them all, to prove that they were all engaged in the conspiracy. The foundation or gist of the action, however, is the actual damage sustained by the plaintiff. Some right of his must be violated, and damage must result therefrom as the direct and proximate consequence, otherwise, the action cannot be sustained. This has been repeatedly decided. In Savile vs. Roberts, 1 Ld. Raym., 374, Lord HOLT, in answer to the suggestion at the bar, that the fact of the conspiracy was sufficient to maintain the action, said, "that conspiracy is not the ground of these actions, but the damage done to the party, for an action will not lie for the greatest conspiracy imaginable, if nothing be put in execution; but if the party be damaged, the action will lie. From whence it follows," continued his lordship, "that the damage is the ground of the action, which is as great in the present case as if there had been a conspiracy. And F. N. B., 114 D., says, that where two cause a man to be indicted, if it be false and malicious, he shall have conspiracy; where one, he shall have case, so that the actions are founded upon one common foundation; but the number of the parties defendants determines it to the one or to the other. Though in the old books, such actions are called conspiracies, yet they are nothing in fact but actions upon the case. For conspiracy (to speak...