Martens v. Reilly

• Decision Date: 08 January 1901
• Citation: 84 N.W. 840,109 Wis. 464
• Parties: MARTENS ET AL. v. REILLY ET AL.
• Court: Wisconsin Supreme Court

109 Wis. 464

84 N.W. 840

MARTENS ET AL.

v.REILLY ET AL.

Supreme Court of Wisconsin.

Jan. 8, 1901.

Syllabus by the Judge.

1. In a civil action for damages instituted against members of a conspiracy, the gist of the action is the damage; while in a criminal prosecution for the offense of conspiring, the gist of the action is the conspiracy.

2. A conspiracy is defined to be a combination of two or more persons to do a criminal or unlawful act, or to do a lawful act by criminal or unlawful means.

3. If the object to be attained by a conspiracy be criminal or unlawful, the combination offends against the criminal law by common-law rules without any overt act, and by statute when there is such overt act. Rev. St. 1898, § 4568. But see sections 4466a and 4466b, pertaining to the statutory conspiracies.) And if the means to be used are criminal or unlawful, the ultimate end to be attained need not be essentially wrong. In either case if damage is produced to the person against whom the conspiracy is directed, an action to recover the same will accrue to him against all the guilty parties.

4. The gist of the civil action against conspirators being the damage, the general rule is that it will not lie against many acting in concert if it will not lie against one of them for the same act. Such rule does not apply to criminal actions.

5. The violation of a contract is an unlawful act. Therefore, if one or more persons conspire with another to commit, or two or more persons combine together to effect, such violation, and the object of the combination be consummated to the damage of a third person, such third person has his action to recover the damages against him who breached the contract and every person who, by reason of the combination, is connected with the wrong.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by John A. Martens and others against Bernard O. Reilly and others. Judgment for defendants, and plaintiffs appeal. Reversed.

Action for damages. The facts stated in the complaint are substantially as follows: John A. Martens and William Bechstein, in the fall of 1896, relying on representations made by defendant Mary J. O'Connor and corroborated by her attorney, as to her legal rights, leased of her certain lands in the city of Milwaukee, describing the same, for the term of five years at the yearly rental of $200 and the taxes, paying $100 down upon the lease. The lease was made in writing and in addition to the essential stipulations it contained the following provisions:

(1) The lessee shall have the first privilege to purchase the premises during the term of the lease, for such price and on such terms as the parties to the lease shall mutually agree to.

(2) In case of a sale of the premises by the lessor she shall have the privilege of canceling the lease on giving written notice of such sale and cancellation, and thereupon the term of the lease shall terminate at the close of the second summer season from the date of such notice, no rent, however, to be paid for the last six months.

(3) The lease shall not be assigned, nor the premises underleased, without written consent of the lessor first obtained.

(4) The leased premises shall be used for the maintenance of a first-class swimming and bathing institution, with the right of furnishing refreshments to its patrons.

(5) The lessees may grade the river bank in preparing the premises for the bathing houses and buildings, but at the end of the term they shall restore the premises to the condition existing at the time of making the lease.

Soon after the lease was made, the lessees caused the plaintiff Bechstein-Martens Company to be incorporated and then assigned the lease to such company. Consent to the assignment was not obtained of the lessor before making it, but she knew of the contemplated assignment and verbally consented to the same. Prior to February 26, 1897, the leased property was taken possession of by the lessees and improvements were commenced thereon which were under way on that date. Prior to that day, and with knowledge of all the conditions of the lease, one Bernard O. Reilly at the instigation of defendants Ernst A. Conrad and Edward A. Benson, prevailed upon the lessor and her children to ignore the provisions of the lease giving to the lessees the first chance to purchase the premises, and to give to said Reilly or his assigns an option to purchase the same for $8,000. Such option was obtained for the purpose of preventing the establishment of the swimming school, or ending the maintenance of it on the premises as soon as practicable. All of the O'Connors, Reilly and Benson co-operated in that scheme. The option, as soon as obtained, and as was previously contemplated by Reilly, was assigned to Conrad and Benson. About the time the option to purchase was made, plaintiffs Martens and Bechstein discovered that Mrs. O'Connor had only a dower interest in the property, and that the legal title was in her six children as heirs of her deceased husband, and thereupon they applied to her and her children to obtain a ratification of the lease, and for a written consent to the assignment. By reason of the interference of Reilly and his efforts and those of Benson and Conrad to prevent the use of the property for a swimming school, plaintiffs Martens and Bechstein experienced considerable difficulty in obtaining a ratification of the lease and a written consent to its assignment, but such ratification and consent were finally obtained. In furtherance of the conspiracy to prevent the establishment and maintenance of the swimming school, after the option to purchase was obtained, the holders of such option caused the O'Connors to sign a written cancellation of the lease, which was served upon the plaintiffs, and they were also notified to desist from further improving the property. Their contractors were also notified by the conspirators to stop working upon the property, and to influence them to do so they were told that plaintiffs would not be ready to pay them. When the option to purchase was obtained, Conrad and Benson did not intend to purchase the property but intended to use the option to deter plaintiffs from establishing the swimming school. The O'Connors were induced by them to violate the terms of the lease and to refuse to protect the lessees in the enjoyment of the benefit of the privilege secured to them by such terms. The result of the conduct of the conspirators was that plaintiffs were obliged to abandon their purpose of constructing and maintaining a swimming school on the leased premises, suffering great loss in doing so.

Defendant Lawrence O'Connor answered separately and apart from the other defendants. Defendants Patrick F. and Phillip O'Connor joined in an answer, as likewise did Ernst A. Conrad and Edward A. Benson. The answers were to the effect that the option to purchase was obtained in good faith and not with any intent to injure plaintiffs or either of them; that no conspiracy was entered into or carried out to commit such injury; and that the property was purchased of the O'Connors subject to the lease.

The evidence produced upon the trial proved or tended to prove the following facts: The lease was obtained originally of Mrs. O'Connor, was thereafter ratified by the holders of one-half the legal title, was assigned to the plaintiff corporation, and permission to make such assignment was given in writing as alleged. The assignment was made and the ratification as well, before consent was obtained in writing for the making of the assignment, but Mrs. O'Connor knew of the purpose to make the assignment and verbally consented thereto. The original lessees learned of the state of the title about the time notice to quit was served upon them, and they thereafter obtained the ratification of the lease of the O'Connor heirs and their consent to the assignment. The option was obtained by Reilly for Conrad and Benson with full knowledge of the terms and conditionsof the lease. Reilly worked upon the sympathy of Mrs. O'Connor, bringing to her attention the objections of himself and others to the use of the property for a swimming school, and his friendship for her deceased husband. In that way and others calculated to stimulate the sympathy of Mrs. O'Connor, he prevailed upon her to give him an option to purchase the property and break her agreement with Martens and Bechstein and their assignee, the Bechstein-Martens Company, to give to the holders of the lease the first right to purchase the property. Conrad and Benson desired to become the owners of the property for the sole purpose of destroying the swimming school enterprise as soon as possible. After plaintiffs knew of the option to purchase, they offered to take the property of the O'Connors on the same terms given to Reilly, but the O'Connors were made to believe, by the holders of the option to purchase, that it prevented them from recognizing the rights of the lessees to take the property by purchase, and were induced to co-operate with the efforts to exclude plaintiffs from any interest in the property. The lessees tendered the sum of $400 to the O'Connors and to the holders of the option, which sum was the down payment made by the holders thereof, and demanded the benefit secured to them by their lease as regards the purchase of the property; but the demand was refused. The holders of the option caused a notice to be made and served terminating the lease, and after they became part owners of the property--which they did by a deed to Nunnemacher, who took the title direct from the O'Connors by the direction of Conrad and Benson, and a deed of Nunnemacher to Conrad and Benson and one Wild whom they associated with them--they notified plaintiffs in writing of the state of the title. Plaintiffs' contractors, who were making the improvements upon the property, after the option was obtained, were made to believe by Conrad and...