Master Builders' Ass'n v. Domascio

• Decision Date: 14 January 1901
• Parties: MASTER BUILDERS' ASS'N et al. v. DOMASCIO.
• Court: Colorado Court of Appeals

63 P. 782

16 Colo.App. 25

MASTER BUILDERS' ASS'N et al. v. DOMASCIO.

Court of Appeals of Colorado

January 14, 1901

Appeal from district court, Arapahoe county.

Action by Frank Domascio against the Master Builders' Association and others for damages and for an injunction. From a judgment for plaintiff, defendants appeal. Reversed.

Benedict & Phelps, for appellants.

O'Bryan & O'Bryan, for appellee.

WILSON J.

The plaintiff and the individual defendants are all builders and contractors in the city of Denver. The great length of the complaint precludes its insertion in full. Its material averments are that in the said city, and in the state of Colorado, the architects, and also the owners of ground who contemplate erecting buildings, are the patrons and customers of the contractors; that a general and universal custom has been adopted, whereby architects solicit contractors and builders to examine plans and specifications prepared by them for proposed buildings, and deliver their bids to the said architects, who afterwards, in the presence of the contractors, open the several bids so solicited and award the contract; that at the time set forth in the complaint the individual defendants were united and combined together for the purpose of regulating bids of contractors for the construction of such buildings as might be erected within their said city and state, by pledging themselves not to bid less than certain amounts previously agreed upon by them for the whole or parts of such projected buildings, and more particularly were they combined and united and confederated together to prevent, by inducement, threats, or intimidation not only all other contractors and builders who were not members of the defendant association (a corporation of which it was alleged the individual defendants were all members) from bidding or entering into any contract to build any structures to be erected within said city or state, but also for the express purpose of inducing others--the patrons and customers of such contractors--to cease patronizing, trading, or doing business with any contractor or builder not a member of such organization; and that the express purpose of such combination and confederation was to injure those who were not members of such association, and to benefit each and all of said defendant persons, at the expense of other contractors who were not members of the association; and that all of the said unlawful purposes and objects were acquiesced in, ratified, and acted upon, not only by the said members of the association, but also by the said defendant association itself. As specific acts of injury to the plaintiff, in furtherance of this alleged conspiracy and confederation, the complaint charged that certain architects in Denver,--the firm of Marean & Norton,--being about to construct a building for one McCartney, requested plaintiff to make a bid therefor; that, when he presented his bid, said architects informed him that they would not receive it for consideration, because they had received a written notice, signed by each of the individual defendants herein and in words as follows: "Denver, May 10th, 1897. Messrs. Marean & Norton--Gentlemen: We, the undersigned members of the Master Builders' Association, decline to bid on the McCartney building if Mr. Domascio's bid is received in competition. Respectfully yours." The complaint further charges that afterwards the individual defendants, through one of them, William Simpson, notified verbally, William Cowe, another architect, that, should he accept or receive any offer or bid from plaintiff for the construction and erection of a building contemplated to be erected by him, each of said defendants would refuse to bid upon the said work, or allow any one else so to do, and thereby financially ruin and destroy the business of said architect by inducing others to desist from patronizing or employing him; that said Simpson stated to said Cowe that it was the intention of defendants to protest against the plaintiff doing any work or labor for any of the architects within the city of Denver; that all of said threats, words, inducements, and acts were done with the express purpose to injure plaintiff and destroy his business, and benefit the said defendants, and each of them, at the expense of plaintiff, and were made and done without legal excuse, and in willful disregard of plaintiff's rights, and were a wanton and malicious interference; that by reason thereof they did induce the said Cowe to notify plaintiff that he could not accept plaintiff's bid for the building proposed; that the defendants had adopted the above set forth systematic course of threats, inducements, and intimidations, which, if persisted in, would destroy the plaintiff's business, and had expressly stated to divers and various other persons, more particularly to the above-mentioned architects, that they proposed to so continue their systematic course of injury to the plaintiff, and to destroy his business, by inducing customers to refrain from doing business with him. The individual defendants filed a verified answer, specifically denying all of the material allegations of the complaint, except the execution and delivery of the notice to Marean & Norton. They denied that the Master Builders' Association was composed of the individual defendants, but, on the contrary, averred that at least four of the defendant individuals and firms were not members of said association. They further averred that said association included in its membership only about 15 contractors and builders, whereas outside of the association, and not members thereof, there were about 50 builders and contractors in the city of Denver, and also that none of the architects in said city were members of the association. They denied that they, or any of them, through the defendant Simpson, who was not a member of the association, ever notified any patron or customer of plaintiff that, should he accept or receive any offer or bid from plaintiff for the construction of a building, they would refuse to bid thereon; denied that they, or any of them, ever stated to said Cowe that they would induce others to desist from patronizing or employing him if he received any bid from plaintiff, or that they ever stated that it was their purpose to protest against the plaintiff doing any work or labor for any architect in the city of Denver, or that it was their purpose to enter similar protests whenever any of plaintiff's patrons should open bids for the construction of buildings, and denied that the defendant Simpson was in any manner authorized or empowered to speak or act for the association or for the individual defendants. The Master Builders' Association filed a separate answer, in which, after admitting its incorporation, it denied all the specific allegations of the complaint with reference to it; denied that it had anything whatever to do, or that any purpose of its organization had anything to do, with the regulating of bids of contractors and builders for the construction of any building in any manner or form whatsoever, or anything in any way relating to the prevention of any person or persons whomsoever from bidding upon or entering into building contracts; denied that it had in any manner either acquiesced in or ratified, or in any manner acted upon, any of the purposes or objects alleged in the plaintiff's complaint. No reply was filed.

The case being called for trial, the defendants objected to the introduction of any testimony, on the ground that the complaint stated no facts to constitute a cause of action. This objection was overruled. Thereupon the case was submitted upon an agreed statement of...