Lajoie v. Milliken

• Decision Date: 25 September 1922
• Parties: LAJOIE v. MILLIKEN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

242 Mass. 508

136 N.E. 419

LAJOIE

v.MILLIKEN et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Sept. 25, 1922.

Exceptions from Superior Court, Middlesex County; E. B. Bishop, Judge.

Action by Charles Lajoie against Albert D. Milliken and others for conspiracy to destroy plaintiff's business, and actually destroying such business, and for trespass in connection with the activities of a fuel committee appointed under the Lever Act (Act Cong. Aug. 10, 1917), in which Ovila Lajoie, executor, was substituted as plaintiff. Directed verdict for defendants, and plaintiff brings exceptions. Exceptions overruled.

Plaintiff's exceptions were to the admission and exclusion of evidence and to the direction of the verdict. Defendants introduced an order of the President appointing Harry A. Garfield United States Fuel Administrator, an instrument in the form of a letter, purporting to be signed by Garfield, appointing the defendant Storrow fuel administrator for New England, and testimony of Storrow that he appointed the defendants O'Donoghue, Ball, and Milliken as members of the Lowell fuel committee by a form of certificate introduced in evidence. The instrument appointing Storrow was objected to, on the ground that it was not properly authenticated, and on the ground that the United States Constitution required that all officers should be appointed by the President, the heads of departments, or the courts, and that the appointment in question did not purport to be made by any of the sources required by the Constitution. Storrow testified that he was familir with Garfield's signature, and that the signature on such paper was that of Garfield, and the letter was then admitted subject to plaintiff's exception. Ferdinand Dupre testified at some length concerning his familiarity with the coal business and with plaintiff's coal plant, and was then asked what in his opinion was the fair market value of such plant and business on January 1, 1918, assuming that it had a business of roughly 15,000 tons a year, and what its fair market value was as dead real estate. Both questions were excluded, and plaintiff excepted.H. V. Charbonneau, of Lowell, for plaintiff.

Ropes, Gray, Boyden & Perkins, of Boston (Albert A. Schaefer, of Boston, of counsel), for defendant Storrow.

Trull, Wier & O'Donoghue, W. D. Regan, and Dennis J. Murphy, all of Lowell, and A. A. Schaefer, of Boston, for other defendants.

RUGG, C. J.

This is an action of tort brought by Charles Lajoie, a coal dealer in the city of Lowell, hereafter called the plaintiff, and prosecuted after his death by his executor. The defendants are James J. Storrow, who was the federal fuel administrator both for New England and for Massachusetts, three persons appointed by him as the members of the Lowell fuel committee, and three local coal dealers doing business in the city of Lowell. The declaration contains two counts, the first alleging that the several defendants conspired to destroy the plaintiff's business by doing numerous specified acts averred to be illegal, and the second alleging trespass to the plaintiff's land and the carrying away of personal property of the plaintiff. Each defendant filed a general denial. The defendant Storrow and the three fuel commissioners of Lowell answered further that each was a public officer of the United States and that all his acts were done pursuant to authority vested in him by law as such officer. Each of the local coal dealers answered further that all their acts were done on the invitation and with the approbation of the plaintiff, his servants and agents. The plaintiff filed a replication, setting up that acts of his tending to show sales to the local dealers or consent to or approval of their acts, if proved, were induced by duress exerted upon him by the defendants. It is not necessary to decide whether a replication was necessary as setting up special equitable avoidance of matters pleaded in the answers. G. L. c. 231, §§ 34, 35, 36; Comstock v. Livingston, 210 Mass. 581, 97 N. E. 106;De Propper, Petitioner, 236 Mass. 500, 128 N. E. 785;Commonwealth v. Kozlowsky, 238 Mass. 379, 385, 131 N. E. 207.

The events on which the right of recovery is founded occurred during the first five months of 1918, and chiefly during the first three months of that year.

There was evidence tending to show these facts: For some years prior to 1918 the plaintiff had conducted a retail coal business in Lowell, and owned real estate and personal property especially adapted for that purpose. On January 1, 1918, he had on storage at his yard about 5,000 tons of coal, and on the way to him by transportation 32 carloads, containing about 1,280 tons, of coal. There was a great shortage of coal in Lowell and other dealers had very little coal to meet the demand. The shortage affected everybody who had not a supply of coal, there were thousands of families of small means who did not have coal, and the winter was exceptionally severe. It would have taken the plaintiff about 66 days to deliver to customers ordering 4 or 5 tons each the coal which he had on storage in his yard on January 1, 1918, and until the middle of April to deliver it in ton lots or half or quarter ton lots.

Under date of January 1, 1918, the son of the plaintiff signed in the name of his father an order directing the Boston & Maine Railroad to deliver all shipments of anthracite coal consigned to the plaintiff to the order of the Lowell fuel committee until further notice. The chairman of the Lowell fuel committee said to the son that, if he did not sign the order, the committee would take steps to stop all coal from coming to the plaintiff. There was ample evidence of the authority of the son to sign such an order. The fact of signing it was immediately known to the plaintiff, who made no protest nor denial of its authenticity, validity and scope to the railroad, to the Lowell fuel committee, or to any one else. The plaintiff did not at the trial deny the authority of his son to sign the order in question and acknowledged that he sent his son to see the local fuel committee. The order plainly was admissible in evidence. The son was clerk and bookkeeper and took care of the office for the plaintiff and gave orders for coal as well as the plaintiff, and had been in the plaintiff's employ 17 years. The plaintiff knew that his son was representing him in conversations with the fuel committee, but, as he testified, ‘I was there in case he did something wrong and I was there to break it up then.’ The plaintiff in important particulars did not heed the requests and directions of the fuel committee concerning the conduct of his business. He refused to keep the accounts suggested in order to make certain that coal was distributed in small quantities to families in need and to prevent any from getting more than their equitable proportion, he declined to make reports in the form and at the times requested and be unloaded cars in his own yard after January 1, 1918, desired to be reconsigned to other dealers, all contrary to the declared policy of the fuel committee. The plaintiff was told that, if he did not do just as the fuel committee wanted with respect to his coal, they had taken steps to prevent him from getting any more coal; that they delivered to him many lists of persons to whom coal was to be delivered; that he could not deliver in accordance with all these orders, which amounted to thousands, because of his lack of equipment; that he was barred in large measure from doing business himself because his yard was filled with people; that he was prevented from receiving any of the coal consigned to him because he did not co-operate with the fuel committee in furnishing data as to whom he delivered coal. Thirty-two carloads of coal originally consigned to the plaintiff were reconsigned to other dealers. The plaintiff complied with requests of the fuel committee as to sales to be made and prices to be charged because of a belief that, if he failed to do so, his future supply of coal would be curtailed or cut off by the federal government at the instigation of the fuel committee. The prices for which the plaintiff made sales were less than the value of the coal and less than he could have got, but for the acts of the fuel committee. He made no objection to the delivery of coal to other dealers, nor to such dealers coming to his yard to get coal. He regularly sent bills and accepted payments from other dealers for the coal taken by them from his stock or from cars consigned to him. For all coal so taken the plaintiff has been paid according to bills sent by him, except for one carload, about the weight of which there is dispute. Treating the testimony of the plaintiff as binding him and disregarding the evidence of the defendants and making every assumption in favor of the plaintiff, the foregoing might have been found to be the facts on the evidence reported.

The defendant Storrow was federal fuel administrator for New England and also for Massachusetts by appointment of the United States Fuel Administrator by an instrument which purported to authorize him amongst other matters to appoint local committees and local administrators and in general to carry out the policy of the government concerning the conservation and distribution of coal.

While there was nothing to indicate that the defendant Storrow personally die anything with particular respect to the business or property of the plaintiff, it might have been inferred that he devisedor approved the general methods of supervising the conservation and distribution of coal prevalent in Lowell.

The defendants O'Donoghue, Ball and Milliken were the Lowell fuel committee appointed by the defendant Storrow. Numerous cars loaded with coal consigned to the plaintiff were by them after January 1, 1918, ordered to be reconsigned to other coal dealers in Lowell. Under their direction plans were carried into execution to insure so...