Mahoney v. Roberts

• Decision Date: 27 April 1908
• Citation: 110 S.W. 225,86 Ark. 130
• Parties: MAHONEY v. ROBERTS
• Court: Arkansas Supreme Court

110 S.W. 225

86 Ark. 130

MAHONEY v. ROBERTS

Supreme Court of Arkansas

April 27, 1908

Appeal from Pulaski Circuit Court; Edward W. Winfield, Judge affirmed.

Judgment affirmed.

Carmichael Brooks & Powers, for appellants.

1. Verdict is not supported by the evidence. The contract was that Mahoney should not enter into said business in competition with Roberts. This means only the same business for if construed to mean all business, the contract would be void as in restraint of trade. Beach on Monopolies and Ind. Trusts § 37; 71 S.W. 691, 695; 97 Mo.App. 64.

2. In suits for conspiracy the wife is wholly relieved from liability. Fritzherbert, N. B. 116; 44 N.C. 46 2 Munf. 15; 44 Ark. 640.

3 The names of Mrs. Mahoney and Collins should have been stricken from the complaint for misjoinder of parties and causes of action. Webb's Pollock on Torts (last Ed.), p. 66; citing and reviewing Lumley v. Gye, Q. B. (1853); 11 L. R. A. 550, 545; 21 Id. 223. See also 44 C. C. A. 426; 105 F. 163; 62 L. R. A. 673. Two appellants can not be held liable for the mere inducing another to break his contract, there being no coercion. 91 Ky. 112; 48 N.Y. 430; 13 Lea, 508; 75 Me. 225; 159 Penn. 420; 91 Ky. 136. A malicious motive can not be a cause of action. 67 L. J. Q. B. (N. S.), 119; 24 Pa. 308; 75 Id. 467; 13 Lea, 507; 72 N.Y. 43; 121 Mass. 114; 8 Gray, 409.

4. Breach of contract and tort can not be joined. Anson on Contracts, 273 and authorities supra.

5. The rule in civil conspiracies is that damages, and not malice, is the gist of the action. 73 Ark. 437; 7 Hill (N. Y.), 107; Cooley on Torts, 85, 86; 4 Enc. Pl. & Pr. 739, 740.

6. A married woman is not liable for her wrongs of the nature of violation of contract. 39 Pa.St. 299; 46 Vt. 332; 48 Pa.St. 497; 5 La.Ann. 586; 11 Mo. 400; 49 N.H. 314; 97 N.C. 106; 29 Tex. 523; 67 Me. 251; Webb's Pollock on Torts, 64. The action sounded in tort. 58 Ark. 138.

7. The mere loan of money or property to help another is not a conspiracy. 73 Ark. 440; 8 Cyc. 649 note; 6 L. R. A. 230; 80 Ark. 438.

8. Husband and wife can not be partners. 56 Ark. 277. Nor can they testify for or against each other. Kirby's Digest, §§ 3094, 3095.

J. G. Dunaway and J. W. Blackwood, for appellee.

1. The decree in the chancery court is res judicata on all questions except damages. The verdict settles that and is sustained by the evidence.

2. This court has settled the law as to restraint of trade. 62 Ark. 101. See 63 Am. Dec. 383; 106 Cal. 332; 69 Ga. 656; 45 Ga. 319; 6 Ill.App. 60; 145 Ind. 35; 32 Md. 561; 27 Mich. 15; 33 N.J.Eq. 597; 72 Hun (N. Y.), 43; 106 N.Y. 486; 143 N.Y. 488.

3. A retiring partner who contracts to quit the business must quit. He may be enjoined. 7 Daly (N. Y.), 355; 3 Green (Iowa), 596; 28 N.J.Eq. 151; 62 L. T. N. S. 453; 11 Ind. 70; 60 Pa.St. 458.

4. A covenant not to carry on a certain trade, etc., is broken by the covenanter acting as manager, agent or employee. 55 Law Times N. S. 769; 166 Pa.St. 230; 42 N.J.Eq. 606; 18 W. R. 993; 4 Ch. D. 636; 38 L. J. 111; 36 Ch. D. 411; 19 W. R. 556; 118 Cal. 352; 6 Ind. 203; 34 How. Pr. (N. Y.), 202; 166 Pa.St. 230; 24 L. T. N S. 249; 40 W. R. 220; 61 N.H. 83; L. R. 7 Exch. 127.

5. Using name of son or nephew as mere cover or blind is a breach of covenant. 32 Md. 561; 17 Law Times (N. S.), 486.

6. All the defendants were responsible in a case like this when fraud, malice and conspiracy all unite, whatever may be ruling as to Lumley v. Gye, 2 El. & Bl. 216. L. R. 6 Q. B. Div. 333; 107 Mass. 555; 76 N.C. 355; 70 Ib. 601; 21 L. R. A. 233; 62 L. R. A. 967; Addison on Torts, vol. 1, p. 37; Cooley on Torts (2d Ed.), 581; 40 L. R. A. (Md.), 382; 176 Ill. 608; 56 L. R. A. (W. Va.), p. 804; 62 L. R. A. 967; 80 Tex. 400; 16 S.W. 111.

7. Mrs. Mahoney's testimony was competent. 54 Ark. 159; 33 Ib. 611; 37 Ib. 298; 43 Ib. 307; 59 Ib. 180; 62 Ib. 26; 68 Ib. 180; Kirby's Digest, 3093; Vol. 15 of Am. & Eng. Enc. Law, p. 900.

8. The husband and wife may be jointly sued and charged for a tort done by both of them, if the wife does not act by the husband's coercion. 12 Mod. 246; 4 Bing. N. Cas. 96; 51 Me. 308; 114 Mo. 560; 49 N.H. 318; 56 N.H. 339; 45 La.Ann. 1221; 16 Neb. 306; Add. (Pa.), 13; 17 Q. B. D. 177; 67 Me. 259; 56 N.Y. 43; 17 R. I. 81; 3 Barb. (N. Y.), 500; 16 Mass. 389.

BATTLE, J. HILL, C. J., did not participate.

OPINION

BATTLE, J.

Mord Roberts brought this action against J. Mahoney and Emma E. Mahoney, his wife, and F. D. M. Collins. For cause of action he alleged in his complaint: "That on the 26th day of January, 1906, he and the defendant J. Mahoney were doing a partnership business in the city of Argenta, Arkansas, and were engaged in what is commonly known as the concrete and cement work and other kinds of business; that, being unable to agree in the further prosecution of their work as partners, they dissolved the said partnership by mutual consent, making certain divisions of the partnership property; and in consideration of $ 500, cash in hand paid by the said plaintiff to the said defendant, J. Mahoney, the said J. Mahoney entered into an agreement that he would not engage in said business in competition with plaintiff in Argenta, Arkansas. That the said J. Mahoney, being unable to engage in said business directly without violating his said agreement with plaintiff, conspired with his said co-defendants to unlawfully and fraudulently do business under the name of said defendant, Frank Collins, a minor under the age of twenty-one years, thereby seeking to circumvent said agreement and the spirit and terms thereof, and the said J. Mahoney and his wife, Emma E. Mahoney, furnished to the said Frank Collins teams, tools, implements, bondsmen and money with which to carry out the unlawful and fraudulent enterprise; that the said Collins is a son of the said Mrs. Mahoney, and a stepson of the said J. Mahoney, and they all live together, and have their office together in the city of Argenta, Arkansas, and collect the money from the work done in said business, and share the same in common as partners. That the said J. Mahoney is skilled in the concrete and cement business, and is well known as such in Argenta, and is wilfully and unlawfully soliciting and doing business in Argenta, Arkansas, in gross and utter violation of his said contract with plaintiff, by the aid, connivance and assistance of his said co-defendants, Mrs. Emma E. Mahoney and F. D. M. Collins, to the great damage of the plaintiff, towit, in the sum of five thousand dollars."

The defendants demurred to the complaint on the following grounds:

"1. The complaint does not state facts sufficient to constitute a cause of action.

"2. For misjoinder of parties.

"3. For misjoinder of causes of action."

The defendant, Mrs. Mahoney, moved the court to strike her name from the complaint for the following reasons:

"1. That there is a misjoinder of parties.

"2. Because there is a misjoinder of causes of action."

The defendant Collins, asked to have his name stricken from the complaint for the same reasons.

The court overruled the demurrer and the motions to strike.

The defendants separately answered the complaint. J. Mahoney admitted the former partnership with plaintiff, and that he entered into a contract with the plaintiff that he would not again enter into the cement and concrete business in Argenta in competition with plaintiff; and he and the other defendants denied all the material allegations in the complaint; and Mrs. Mahoney pleaded her coverture in bar of the action against her.

"The plaintiff filed an amendment to his complaint, alleging that, in a certain case in the Pulaski Chancery Court wherein Mord Roberts was plaintiff and James Mahoney, Emma E. Mahoney and F. D. M. Collins were defendants, it was alleged by the said plaintiff that after the execution of the agreement between the said Roberts and the said James Mahoney, Emma E. Mahoney and F. D. M. Collins, being, respectively, wife and stepson of the defendant, J. Mahoney, unlawfully conspired with the said J. Mahoney and caused the said J. Mahoney to unlawfully do business under the name of the said Collins, thereby seeking to circumvent both the spirit and terms of said agreement, and the said Emma E. Mahoney furnished the said Collins teams, apparatus and money with which to carry on the said cement business in the city of Argenta, contrary to the terms and agreement of said instrument. That, upon issues joined by the defendants, the Pulaski Chancery Court decreed, and the court, being well and sufficiently advised in the premises and after hearing the argument of the solicitors herein, doth find that the business conducted in the city of Argenta under the name of Frank Collins, or F. D. M. Collins, is in fact the business of J. Mahoney, and is in violation of the agreement entered into by the plaintiff, and J. Mahoney, on the 26th day of January, 1906. And that said agreement is lawful. The plaintiff alleges that the parties to the said suit in the Pulaski Chancery Court are the same as in this court, that the issues as to whether the business carried on by said Frank Collins was the business of J. Mahoney and a violation of the said agreement and that [whether] said agreement was lawful, were questions determined by the Pulaski Chancery Court, and plaintiff now attaches a complete transcript of the complaint, the amended complaint, the answers of the said defendants and the decree in the said cause as 'Exhibit A' to this amendment to the complaint."

The defendants answered the amendment and denied that the record in the Pulaski Chancery Court is res judicata, and stated the facts to be that the decree "itself shows that F. D. M. Collins and Mrs. Emma Mahoney were not mentioned in...