Luke v. Du Pree

• Decision Date: 19 July 1924
• Docket Number: 4282.
• Citation: 124 S.E. 13,158 Ga. 590
• Parties: LUKE v. DU PREE ET AL.
• Court: Georgia Supreme Court

124 S.E. 13

158 Ga. 590

LUKE v. DU PREE ET AL.

No. 4282.

Supreme Court of Georgia

July 19, 1924

Syllabus by the Court.

It is actionable maliciously and without justifiable cause to induce one to break his contract with another to the damage of the latter. The term "maliciously" means any unauthorized interference, or any interference without legal justification or excuse; and ill will or animosity is not essential.

The petition sets forth an action in tort for which each defendant could be sued alone or all jointly, and for this reason a suit could be brought in the county of the residence of either of the defendants.

The petition sufficiently alleges that contracts have been broken; that the defendants either conspired to procure their breach or did in fact procure their breach; and that the plaintiffs have been injured in consequence of such breaches procured through conspiracy.

The allegations of fraud are not too general; the petition setting out the specific acts upon which such general allegations of fraud are made.

The petition is not multifarious.

Additional Syllabus by Editorial Staff.

A "conspiracy" is a combination to accomplish an unlawful end, or to accomplish a lawful end by unlawful means.

Error from Superior Court, Fulton County; W. D. Ellis, Judge.

Action by W. L. Du Pree and others against Mattie Luke and others. Judgment for plaintiffs, and named defendant brings error. Affirmed.

W. L. & John O. Du Pree and John A. Carlton filed their petition against J. A. Manget and Magnolia Kerr, of Fulton county, and J. C. Luke and Mattie Luke, husband and wife, of Irwin county, and, in the first count thereof, made these allegations: The defendants are jointly and severally liable to the plaintiffs in the sum of $12,524.60, for which they pray judgment against each and all of the defendants, jointly and severally. On March 30, 1922, J. C. Luke entered into a contract with plaintiffs, which is as follows:

"This agreement made and entered into this the 30th day of March, 1922, between J. C. Luke, of Irwin county, Ga party of the first part, and W. L. and John O. Du Pree and J A. Carlton, all of Atlanta, parties of the second part.

Whereas, the party of the first part is exchanging a farm in Irwin county, Ga., for the Pontchartrain Apartments, located at 561-563 Ponce de Leon avenue, Atlanta, Ga., and is not paying the parties of the second part the regular real estate commission for said transfer, it is therefore agreed that the party of the first part is to list exclusively with parties of the second part the Pontchartrain Apartments for resale and is to give them 50 per cent. of all money received over and above $50,000 for the equity of the party of the first part, whenever said Pontchartrain Apartments may be resold. W. L. and John O. Du Pree are to handle regularly the renting and collection of the rent of said Pontchartrain Apartments until the same may be resold.

In witness whereof the parties have hereunto set their hands and affixed their seal the day and year above written."

Signed by the parties named, and attested.

John A. Manget listed his farm in Wayne county, Ga., known as the J. C. Ritch farm, consisting of 2,800 acres of land, more or less, including, among others, certain designated land lots, part of which is improved property in Odom, Ga., and all personal property owned and used in connection with said farm, including all live stock, farming tools, feed stuff, and a 1922 crop growing on said farm, with plaintiffs for sale or exchange for property located in the city of Atlanta. Plaintiffs showed this farm to J. C. Luke, and interested him in the purchase thereof. Plaintiffs showed the Pontchartrain Apartments, belonging to Luke, to said Manget, and interested him in the purchase of the same. After plaintiffs had brought Luke and Manget together and interested each in the property of the other, Manget and Luke got together and conceived the idea of trading between themselves, without the knowledge of plaintiffs, and thus cheating plaintiffs out of the commissions which they had earned when they procured purchasers ready, able, and willing to purchase said apartments and farm. Manget and Luke traded the farm in Wayne county for the apartments in Atlanta on September 19, 1922, signing the papers on that date, although they had agreed to make the exchange several days prior thereto; the purchase price of the apartments being $200,000 and the purchase price of the farm being $87,000. The commissions of plaintiffs, earned on the sale of the apartments according to the agreement above set out, were $8,174.60, and their commission on the sale of the farm was $4,350. Defendants not only tried to deal directly with each other and defraud plaintiffs out of their commissions, but further conspired to take the farm in Wayne county in the name of Mattie Luke, to cheat creditors of J. C. Luke; and as soon as petitioners learned of this conspiracy they filed suit in the superior court of Fulton county and prayed for an order restraining Luke from receiving property in the name of Mrs. Mattie Luke in exchange for the Pontchartrain Apartments. The defendants learned that the restraining order was to be served, hastened the consummation of the trade, and signed the deeds just before the sheriff served the same. Plaintiffs have paid the cost and dismissed that suit. On the same day plaintiffs filed another suit against Mattie Luke to restrain her from selling or incumbering the Wayne county farm in any way until further order of the court, which suit was served upon her. Plaintiffs have paid the cost in this suit and dismissed it. After said suits were served, Manget knew he would be sued also for the commission on the sale of said farm. Manget, J. C. Luke, and Mattie Luke entered into a further conspiracy to cheat plaintiffs, by which each handed back the deeds executed by the others which had not been recorded, and agreed to call this trade off, which was an absolute sham for the express purpose of defrauding petitioners out of their commissions herein sued for. After Manget, J. C. Luke, and Mattie Luke had agreed among themselves to call off the trade, Magnolia Kerr entered into a conspiracy with them to purchase the Pontchartrain Apartments from Luke for a recited consideration of $143,000, and immediately convey the said apartments to Manget for a recited consideration of $143,000, which was not the real consideration in either deed, and this conspiracy was entered into to make the trade apparently pass through the hands of another party, to cheat petitioners out of their commissions. Manget fraudulently deeded to Magnolia Kerr the farm in Wayne county which he had sold to Luke and fraudulently deeded to Mattie Luke, and Magnolia Kerr is either still holding the title apparently to said farm or she has deeded it to J. C. Luke or Mattie Luke, as plaintiffs are advised, for the consideration of $10,000, instead of $87,000, as agreed upon between John A. Manget and J. C. Luke. The pretended calling off of said trade and pretended transactions between Manget and Luke and between Manget and Magnolia Kerr and between J. C. Luke and Magnolia Kerr are fraudulent transactions for the express purpose of cheating plaintiffs out of commissions which they had earned on the sale of the property therein described. The indebtedness assumed by Manget on the Pontchartrain Apartments is $133,651.80, making the equity of J. C. Luke bring $66,339.20, and one-half of that amount above $50,000 is $8,174.60. The regular commission on property located more than six miles from the center of Atlanta is 5 per cent., and 5 per cent. of $87.000, the value of the Manget farm in Wayne county, is $4,350. Plaintiffs waived discovery, and prayed judgment against all of the defendants jointly and severally for the sum of $12,524.60.

The second count of their petition is identical with the first, except that the damages sought under the second count are laid at $16,450; and a third contract is alleged, which is as follows:

"I hereby agree to pay J. E. Kerr two hundred fifty thousand ($250,000.00) dollars on the following terms, viz Assume loan and money-purchase notes and accrued interest to the amount of $62,500, and convey by deed 2,080 acres land, more or less, being land lots No. 195, 196, 220, 221, 241, and 222, located in Irwin county, Ga., including 12 head of mules, approximately 50 head of hogs, corn and feed stuff to run the place this year, four two-horse wagons, reaper and binder, two mowing machines, rake, and all agricultural implements, also all plow tools and harness needed to operate farm, valued at $139,500.00. He to assume a loan of $27,000.00 against farm, and I to give 10 notes of $7,500.00 each, 6 1/2 per cent. interest, payable semiannually, due on or before 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 years, for the following described property, to wit: No. 561 and No. 563 Ponce de Leon avenue, lot 120X200 feet, known as the Pontchartrain Apartments, with all improvements thereon.

I have this day deposited with W. L. and John O. Du Pree, real estate agents, for owner the sum of $1,000 as a part of the named purchase money to bind this trade, a reasonable length of time being allowed for the examination of titles by my attorney. If said titles are merchantable, I agree to make settlement at once; but if said titles are not merchantable and can not be made so within a reasonable length of time, the said cash payment is to be returned to me and this trade cancelled.

Each of us agree to pay a regular commission on our respective properties and are depositing $1,000.00 each with said W. L. and John O. Du Pree, agents, to be held by them to bind this trade. [Signed] J. C. Luke."

"I hereby accept the above offer upon the terms

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