Rich v. Daily Creamery Co., 61.

• Citation: 296 Mich. 270,296 N.W. 253
• Decision Date: 07 February 1941
• Docket Number: No. 61.,61.
• Parties: RICH v. DAILY CREAMERY CO. et al.
• Court: Supreme Court of Michigan

296 Mich. 270

296 N.W. 253

RICH

v.DAILY CREAMERY CO. et al.

No. 61.

Supreme Court of Michigan.

Feb. 7, 1941.

Trespass on the case by Peter Rich against Daily Creamery Company and others for damages resulting from conspiracy to deprive plaintiff of his business. From a judgment for plaintiff for $8,500, the defendants Daily Creamery Company, Frank Ledwon, Anthony Cwiek and Frank Wisniewski appeal.

Judgment reversed and cause remanded for assessment of plaintiff's damages in accordance with opinion.Appeal from Circuit Court, Wayne County; Vincent M. Brennan, judge.

Argued before the Entire Bench, except BUSHNELL, J.

Sempliner, Dewey, Stanton & Honigman, of Detroit, for appellants Daily Creamery Co., Frank Ledwon and Anthony Cwiek.

Louis Starfield Cohane and Regene Freund Cohane, both of Detroit, for appellants Daily Creamery Co. and Frank Wisniewski.

Max Kahn, of Detroit, for appellee.

CHANDLER, Justice.

Prior to 1936, plaintiff and appellee had been engaged in the business of making ice cream, his experience having covered a period of several years. In April of that year, he was taking a scientific course in ice cream manufacture at Michigan State College.

Defendant Daily Creamery Company's business consisted of the purchase, pasteurization and marketing of milk and cream, and of the purchase and distribution of dairy products at retail. It is and was a domestic corporation with its principal place of business in the City of Hamtramck. The individual defendants were at the time of the acts complained of by plaintiff in this suit directors of said corporation.

Following some negotiations, plaintiff and defendant Daily Creamery Company entered into the following written contract:

‘This agreement, made and entered into this 24th day of April, A.D. 1936, by and between the Daily Creamery Company, a Michigan corporation, of 3301 Holbrook Avenue, Hamtramck, Michigan, party of the first part, and Peter Rich of Detroit, Michigan, parties of the second part, in the manner following:

‘Parties of the second part agree to purchase and install in the premises of the Daily Creamery Company, in a space set aside and privided for that purpose, one (1) ten ton ice machine, one (1) 20 horsepower motor, foundation and all other pipes, valves, coils and equipment needed in the hardening room, so-called, and agree further to construct a hardening room 19 feet 6 inches long by 8 feet wide and 88 inches high. Parties of the second part also agree to furnish all the ingredients used in the manufacture of ice cream such as cream, sugar, flavoring, etc.

‘In consideration of the above, party of the first part agrees to pasteurize, cool and place in ice box the ice cream mix for five cents (5c) per gallon.

‘Party of the first part agrees to have Peter Rich serve all customers for ice cream given them by the party of the first part during the existence of this contract.

‘Party of the first part also agrees to furnish at its own expense power, light, water and steam necessary for the manufacture of this product. Also all ice cream containers, cans, trucks, etc., shall bear the name of Daily Creamery Company.

‘Party of the first part likewise agrees to purchase from second parties all ice cream needed for its trade at such prices as are available elsewhere.

‘It is further agreed between the parties hereto that this agreement shall remain in full force and effect for a period of three (3) years from and after this date, and that during the existence of this agreement no rent shall be paid by second parties to first party.

‘It is further agreed that at the termination of this contract parties of the second part agree to sell and party of the first part agrees to purchase this entire ice cream equipment at a price fixed by two (2) qualified machinery experts, less depreciation.

‘It is further agreed that the entire equipment and machinery installed by second parties in the premises of first party shall be and remain the sole and separate property of parties of the second part until the right of purchase hereunder is exercised by first party and shall not in any way be liable for the debts and obligations of party of the first part.

‘In witness whereof, the parties have hereunto set their hands and seals the day and year first above written.

‘Daily Creamery Company,

‘by Frank Wisniewski, Pres.,

‘Anthony Cwick, Mgr.

‘Peter Rich.’

‘In presence of:

‘Irene Rossa.’

Immediately following the execution of the contract, plaintiff ordered all of the machinery and equipment required for the installation of an ice cream manufacturing plant in and on the premises of the corporation, and the necessary supplies and equipment for the conduct of the business, including metal ice cream cans, cartons and a delivery truck bearing the imprint of the creamery company's name. During May, the machinery, pipes and coils were installed, and an ice cream hardening room, having a storing and freezing capacity of 2000 gallons of ice cream, was constructed on the corporation's premises at a location designated by defendant Cwiek. This was done at a cost to plaintiff of $7,882.11, of which amount he paid $3,746.21, and became obligated for a balance of $4,125.11.

Plaintiff commenced the manufacture of ice cream in the fore part of June, 1936, and continued until the 27th of the following August.

About August 1st, defendant Cwiek told plaintiff that the company couldn't cover the expense for power and water used. On August 7th, defendant Wisniewski told plaintiff that the company would have to have either rent from him or more money for pasteurizing his mix. Plaintiff replied that he expected them to live up to their contract. About August 15th, defendant Cwiek asked plaintiff to attend a directors' meeting, and said that the company was not making a profit. Plaintiff refused to attend the meeting.

On August 21, 1936, defendant Ledwon served upon plaintiff the following notice:

‘Daily Creamery Company (Incorporated)

Hamtramck, Michigan

Frank Ledwon, President

A. Karczmayzyk, Secretary

Frank Wisniewski, Treasurer.

Gust Spiewak, Vice-Pres.

Edw. Gornick, Fin. Sec.

Hamtramck, Michigan, August 21, 1936.

Mr. Peter Rich:

You are hereby notified that the board of directors of the Daily Creamery Company, Inc., expects you either to pay $115 per month rent from the August 18th, 1936, on or else pay 12c per gallon mix used. If you won't agree to these conditions within the 48 hours from 11 p. m. of August 21, 1936, the power used by you will be cut off and the Daily Creamery Company, Inc., will not take any responsibility for any material that might spoil because of the above-mentioned act.

Frank Ledwon, President.

Edward Gornick, Fin. Secretary.

Frank Wisniewski, Treasurer.'

According to defendant Wisniewski, this action was authorized by the board of directors. He testified: ‘We sent this paper to Mr. Rich because the directors voted that three men, myself, Mr. Ledwon and Mr. Cwiek I think was the third one be a committee to give the note to Mr. Rich and Mr. Ledwon handed it to him.’

The switch which disconnected the power from plaintiff's plant was pulled by defendant Cwiek on the afternoon of August 27th. Plaintiff was not permitted to operate after this date, although he and his employees returned to the plant every day for a week for the purpose of operating if he could obtain the power to enable him to do so. He left all of his equipment in defendant's plant, much of it being attached to the building, some being built into the walls of the hardening room at the time of its construction by plaintiff.

Subsequently, he instituted this action against the defendants herein. The declaration contained a count in trespass on the case and a count in assumpsit. On motion by defendants to dismiss, the count in trespass was sustained and the assumpsit count was dismissed as to the individual defendants. Before submission of the case to the jury, the assumpsit count was withdrawn by plaintiff, and the case went to the jury on the trespass count alone against all of the defendants.

The jury returned a verdict against all of the defendants, except defendant Gornick, for the sum of $15,162.50.

Defendants made a motion for a new trial, which was denied on condition that plaintiff file a remittitur of $6,602.50 of said judgment. He filed such remittitur and a judgment for $8,500 was accordingly entered.

From this judgment defendants Daily Creamery Company, Frank Ledwon, Anthony Cwiek and Frank Wisniewski appeal.

Appellants state in their brief:

‘There are really only two questions involved:

‘1. Did appellee's evidence within the declaration make a tort case for the jury?

‘2. When appellants demand a jury trial can the court deprive them of this right by making an erroneous and misleading charge as to the law (notwithstanding the court's duty to charge the jury as to the law under § 14309, C.L.1929); and can the trial court claim to have corrected that error by remittitur by attempting to guess whether the jury would have found for appellee; and which of the numerous items of appellee's claim the jury did or did not or should or should not have allowed, or would and should have allowed if a proper charge had been given and in what amount; or is the court's duty under the statute Sec. 14309, C.L.1929, so clear to correctly charge the jury as to the law that if it fails to do so and an erroneous verdict results, appellant is entitled to a new trial and a jury trial under a proper charge.’

(1) Briefly stated, the declaration alleged that the individual defendants and the corporation entered into a conspiracy to deprive plaintiff of his business property and good will; that such conspiracy consisted of the actions of said corporation, by its directors, and said defendants individually, in wrongfully and unlawfully evicting plaintiff from his place of business by causing the power to be disconnected, thus preventing him from operating; that this resulted in a loss to him of several...