Murray v. McGarigle

• Decision Date: 11 October 1887
• Citation: 69 Wis. 483,34 N.W. 522
• Parties: MURRAY v. MCGARIGLE AND OTHERS.
• Court: Wisconsin Supreme Court

69 Wis. 483

34 N.W. 522

MURRAY

v.MCGARIGLE AND OTHERS.

Supreme Court of Wisconsin.

October 11, 1887.

Appeal from Milwaukee county court.

Action for conspiracy.

The complaint alleged that “defendants Frederick R. Buell, Henry M. Benjamin, and Charles H. Swan were, at and during all of the times hereinafter mentioned, and still are, dealers in and sellers of coal and other fuel at the city of Milwaukee, in the county aforesaid, and during all of said times had, and still have, at said city of Milwaukee, severally, in their possession and for sale, large quanties of coal and other fuel; and that prior to the third day of June, 1886, said defendants Buell, Swan, and Benjamin, together with all other dealers in coal in said city of Milwaukee, united, joined, and associated themselves together into a confederation and association, called the ‘Coal Association,’ for the purpose and with the intent of controlling and monopolizing the entire business of the sale and delivery of coal in the said city of Milwaukee, and in the immediate vicinity thereof, and of fixing and determining the price and the future prices at which all coal should from time to time be sold in said city and vicinity, and of enhancing the price thereof for their own profit and gain, without regard to the cost, supply, or demand, and of preventing any competition in the sale thereof between and among themselves, or by any other person, and of preventing all other persons, not members of said Coal Association, from engaging in the sale of coal in said city of Milwaukee or vicinity, except upon such terms and conditions as the members of said Coal Association should fix and agree upon; and that said association and confederation has ever since and still does exist for the purposes and with the intent aforesaid.

“That on or about the third day of June, 1886, the defendant Buell, under the name of F. R. Buell & Co., entered into a contract and agreement with the defendant McGarigle and the plaintiff, wherein and whereby the said Buell contracted and agreed to furnish to the said McGarigle and the plaintiff all the hard or anthracite coal which the said McGarigle and the plaintiff might or could sell at the said city of Milwaukee from the time of making said contract until the first day of May, 1887, at and for the following prices: At $4.50 per net ton for egg coal loaded on wagons at the yards of said Buell in said city of Milwaukee, and at $4.75 for stove and nut coal loaded as aforesaid,--which said coal the defendant McGarigle and the plaintiff agreed to receive and to pay said prices therefor on or before the fifteenth day of each month succeeding the month of the delivery of said coal to them; and that at the time of the making of said contract it was understood and agreed by and between the said Buell and the said McGarigle and the plaintiff that the plaintiff was to be jointly interested with the said McGarigle in the said contract, and was to have and receive one-half of the net profits arising or accruing under and by virtue of said contract with said Buell, and that said business of selling and delivering coal under said contract with said Buell should be carried on in the name of George A. McGarigle. And the said McGarigle and the plaintiff at the same time entered into an agreement between themselves, wherein and whereby it was mutually agreed that they would jointly carry on the business of selling and delivering coal and other fuel at said city of Milwaukee from said date untill May 1, A. D. 1887, and that the plaintiff was to have and retain one-half of the net profits of said business.

That the plaintiff, before the third day of June, 1886, had large experience in the selling of coal in said city of Milwaukee and vicinity, and had an extensive acquaintance with the inhabitants of said city who were consumers of coal, and was well and favorably known as a seller of coal to them, and enjoyed their confidence, and had theretofore commanded, and then could command, their custom and trade in the supplying of them with coal.

That immediately after the making of said contract with the said Buell, and the agreement between said McGarigle and the plaintiff, the plaintiff entered upon and prosecuted the business of selling and taking orders for and making contracts of sale of hard and anthracite coal, to be obtained under and by virtue of said contract with said Buell, and sold and contracted to sell large quantities of hard and anthracite coal to large numbers of the inhabitants of the said city of Milwaukee and vicinity; some of said coal to be delivered at once, and some thereof to be thereafter delivered before the first day of May, A. D. 1887.

That on the fifteenth day of June, A. D. 1886, the school board of the city of Milwaukee advertised for sealed proposals, to be delivered at the office of the secretary of said board on or before July 2, 1886, at 7:30 o'clock P. M., for the furnishing of three thousand (3,000) tons of Lackawanna coal, with the option of the school board to five hundred (500) tons additional, and required that all proposals should state the price for furnishing at least two thousand (2,000) tons of said coal previous to the first day of September, 1886, and the price for furnishing one thousand (1,000) tons additional, with the option of the board to five hundred (500) tons in addition to the above, after the first day of September, 1886, and before the first day of June, 1887, and required that all proposals should be accompanied by a bond of two thousand dollars.

That thereafter, and prior to said second day of July, A. D. 1886, the said McGarigle and the plaintiff made out in writing in due form, in the name of the said McGarigle, but which was for the joint benefit of the said McGarigle and the plaintiff, a proposal or bid to furnish the coal mentioned in said advertisement, and in conformity to the conditions thereof, as follows: To furnish and deliver two thousand (2,000) tons of said coal previous to the first day of September, 1886, at the price of five and 39-100 dollars ($5.39) per net ton for egg-size coal, and five and 49-100 dollars ($5.49) per net ton for nut-size coal, and to furnish and deliver one thousand (1,000) tons of said coal, with the option of said school board of five hundred (500) tons in addition to the above, after the first day of September, 1886, and before the first day of June, 1887, at the same prices per ton, to-wit, $5.39 and $5.49 per net ton. That said proposal or bid was accompanied by the bond required in said advertisement, and was in all respects in due form, and in strict compliance with said advertisement, and was delivered to the secretary of said school board at his office, duly sealed, prior to said second day of July, 1886. That other proposals or bids for furnishing and delivering said coal, so advertised for by said school board, were made and handed in to the secretary of said board by said Benjamin, and by said Swan, and by nine other individuals and firms, all associates and members of the Coal Association aforesaid, at prices per net ton running from $5.83 to $6.13, according to the kind of coal and the time of delivery thereof. And that said Buell on said second day of July, 1886, and ever since, had, and now has, sufficient coal to supply the coal so advertised for, and could have furnished the same to said McGarigle and the plaintiff, according to their said proposal or bid, at a large profit, at the price of $4.50 per net ton for egg size, and $4.75 per net ton for nut size, with thirty-five cents per ton added in case of his delivering the same away from his yards; which sum of thirty-five cents per ton then was, and now is, the cost and price of delivering coal to any part of said city of Milwaukee.

That on the second day of July, 1886, at the said city of Milwaukee, the above-named defendants, together with others, members and associates of the said confederation and association, the Coal Association aforesaid, did maliciously, unlawfully, and wickedly conspire, combine, confederate, and agree together, between and among themselves, by threatening the plaintiff to shut him up in his said business of selling and contracting for the sale of coal, and that said Buell would furnish no more coal under his said contract with said McGarigle and the plaintiff, unless the plaintiff would withdraw the said proposal or bid of said McGarigle and the plaintiff to said school board; and by promising the said plaintiff that, in case he would withdraw the said proposal or bid, the defendants Swan and Benjamin would pay to the said McGarigle and the plaintiff the sum of seven hundred dollars ($700) for the members of said Coal Association, and on their behalf, to be divided equally between the said McGarigle and the plaintiff; and by the defendants and others, members of said Coal Association, combining and agreeing among themselves to make no bids or contracts for the furnishing of coal to the public corporations or public institutions in the county of Milwaukee, without the knowledge of each other, and at no price or prices except those previously agreed upon among themselves, which were, and were to be, exorbitant and extortionate, and to prevent all others from underbidding or underselling them; and by said Buell refusing to furnish coal to carry out contracts made and entered into by the plaintiff, and to be entered into by him, for the sale and delivery of coal to be obtained from said Buell under his said contract with said McGarigle and the plaintiff; and by the said Buell threatening that, if the plaintiff sold or contracted to sell any coal to any member of an organization known as the ‘Knights of Labor,’ he (the said Buell,) would furnish no coal upon said sales or contracts, and that he would stop the plaintiff from making any further sales or contracts for the sale of coal; and by fraudulently and maliciously causing and procuring a...