Loehr v. Dickson

• Decision Date: 11 January 1910
• Citation: 124 N.W. 293,141 Wis. 332
• Parties: LOEHR v. DICKSON.
• Court: Wisconsin Supreme Court

141 Wis. 332

124 N.W. 293

LOEHR

v.DICKSON.

Supreme Court of Wisconsin.

Jan. 11, 1910.

Appeal from Circuit Court, Milwaukee County; W. J. Turner, Judge.

Action by Oscar Loehr against David Dickson. From an order sustaining a demurrer to the complaint, plaintiff appeals. Reversed and remanded.

Appeal from order sustaining a general demurrer to plaintiff's complaint, which alleged that defendant is the owner of certain real estate in Waukesha county; that on February 23, 1906, a judgment was entered of strict foreclosure of a land contract which had previously been given by defendant to plaintiff; that such strict foreclosure was subject to the condition that plaintiff pay to defendant on or before August 23, 1906, certain sums of money aggregating on that date approximately $60,000; that plaintiff prior to August 23d, to wit, in the latter part of the month of July, made various attempts to pay said money to the defendant, repeatedly going to his house with the money and sending him letters which he is alleged to have received, notifying him of the wish to make payment, and that on August 23d a messenger or agent of the plaintiff found defendant and notified him of plaintiff's desire and readiness to make such payment, whereupon defendant appointed an hour on the following day at his attorney's office at which he would be present and would receive the money; that plaintiff attended at that time with the money, and defendant did not appear; and that he has been unable to physically tender the payment to him. The plaintiff alleges that the acts of defendant in evading such tender were willful and with the intention of preventing plaintiff from saving his rights under the land contract, and to impose upon him the forfeiture of such rights; further, that on February 24th plaintiff, in reliance upon said judgment, had granted to one Smith an option for the sale of the property involved for $70,000 on or before August 21, 1906, wherein time was of the essence of the contract, and failure by plaintiff to make conveyance on or before August 21st released said Smith; that on said August 21st plaintiff sold and by warranty deed conveyed said property to said Smith in pursuance of said option for $70,000, subject to the condition that, if plaintiff failed to secure proper releases and conveyances from the defendant or his assigns by August 30th, said deed should be void and plaintiff must repay said $70,000; that, by reason of defendant's willful evasion of plaintiff's tender, the latter was unable to comply and was obliged to refund, and to lose the profit of said sale, together with certain other opportunities for sale, whereby he suffered damage in the sum of $12,068.76, and certain other amounts, for which plaintiff demands judgment.

Kerwin and Timlin, JJ., dissenting.

Harper & McMynn, for appellant.

J. E. Wildish, for respondent.

DODGE, J. (after stating the facts as above).

Plaintiff assures us in advance that his attempt is to state a cause of action in tort. Examining the complaint in that aspect then: It is at once obvious that none of the acts alleged against defendant is in and of itself prohibited by any law. At most, it is alleged that he did not stay at his home through several days during which plaintiff desired to make tender, or inferentially that he went somewhere else; also, that he refrained from going to his attorney's office on a certain day promised. Obviously all such acts were entirely lawful in and of themselves. No law prohibited him from leaving home nor commanded his attendance at his attorney's office. If he owed any duty in those respects, it was one imposed by his own promise or contract, and not by law. The fact that inconvenience or actual pecuniary injury results to another from such lawful acts does not transform them into torts. It is but a case of damage without legal wrong--“Damnum absque injuria.” Whalon v. Blackburn, 14 Wis. 432. But the complaint alleges that these acts, lawful in themselves, were done maliciously--that is, with the express purpose of causing plaintiff damage--and therefore liability results. Very little aid is given by either counsel on this essential question whether a lawful act becomes a tort by reason of malice or intent to injure.

Upon this question there is a sharp conflict of authority throughout the courts of the country. The principle is asserted by perhaps the majority of those authorities “that malicious motives make a bad case worse, but they cannot make that wrong which in its own essence is lawful.” 32 Ohio Law Journal, 215; Jenkins v. Fowler, 24 Pa. 308. A copious collection of authorities on both sides will be found in the note to Letts v. Kessler, 40 L. R. A. 177. However, that subject was presented to this court in Metzger v. Hochrein, 107 Wis. 267, 83 N. W. 308, 50 L. R. A. 305, 81 Am. St. Rep. 841, under the aspect of a “spite fence” impairing plaintiff's enjoyment of his residence property. The conflicting authorities were carefully considered, and from that conflict this court allied itself with those holding that mere malice or motive to injure could not impose liability for a lawful act. That case has been treated as final authority for that proposition in Sullivan v. Collins, 107 Wis. 291, 83 N. W. 310;Marshfield Land & Lumber Co. v. John Week Lumber Co., 108 Wis. 268, 274, 84 N. W. 434;Huber v. Merkel, 117 Wis. 355, 363, 94 N. W. 354, 62 L. R. A. 589, 98 Am. St. Rep. 933. We deem the rule of Metzger v. Hochrein now settled in Wisconsin and that malicious intent to injure cannot transpose a lawful act into a tort, and hence that the complaint fails to state a cause of action ex delicto.

2. The conclusion reached in response to plaintiff's own construction of his complaint is, however, not conclusive. A demurrer challenges the sufficiency of the complaint to state any cause of action, and must not be sustained in face of one which does by liberal construction state facts from which any liability results, although not for some or all of the damages sought to be recovered. Bieri v. Fonger, 139 Wis. 150, 120 N. W. 862. From the present complaint it clearly appears that defendant was under a contractual duty to the plaintiff none the less because such duty had been declared and defined by the judgment of a court. That contract required defendant to convey to the plaintiff certain land upon payment of certain money within a defined time. It imposed upon the plaintiff a duty to the defendant to make such payment or at least tender to him personally, for the conveyance was to be cotemporaneous, and such cotemporaneousness was doubtless necessary to the raising of the money to be paid. From a contract imposing such duty on the plaintiff there resulted by necessary implication the agreement on defendant's part to do no act which would render such payment or tender impossible. This upon the general principle that he who by mutual contract confers on another a right or imposes a duty impliedly agrees not to defeat that right or make impossible the performance of that duty by any affirmative acts of his own. Manning v. Galland-Henning, etc., Co. (decided herewith) 124 N. W. 291;Eliot National Bank v. Beal, 141 Mass. 569, 6 N. E. 742. By this complaint it is alleged that the acts of defendant were in fact done for the express purpose of preventing the plaintiff from tendering or paying the money and acquiring his rights; that they were effective to that end; and that...