Ross v. Wright

• Decision Date: 24 May 1934
• Citation: 190 N.E. 514,286 Mass. 269
• Parties: ROSS v. WRIGHT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

286 Mass. 269

190 N.E. 514

ROSS

v.WRIGHT.

Supreme Judicial Court of Massachusetts, Plymouth.

May 24, 1934.

Appeal from Superior Court, Plymouth County; Weed, Judge.

Action of tort by Marjorie D. Ross against Louis F. Wright. From an order sustaining a demurrer to the declaration, and from the judgment entered thereon, the plaintiff appeals.

Order and judgment affirmed.

C. G. Willard, of Brockton, for appellant.

H. K. Stone and E. H. Fletcher, both of Brockton, for appellee.

FIELD, Justice.

The declaration in this action of tort is as follows: ‘The Plaintiff says that she is the granddaughter of one Ellery C. Wright, late of Brockton, Massachusetts, who deceased on August 1st, 1925; that said Ellery C. Wright for a long time prior to and at the time of his decease, was the owner of 1,767 shares of stock in the Woodard & Wright Last Company, a business trust having a usual place of business in Brockton, Massachusetts; that said Ellery C. Wright for many years next prior to his decease was the president of said Company; that said Defendant Louis F. Wright was at said time the clerk of said business trust and as such clerk it was his duty to have custody of the stock certificate book of said trust and to make out certificates for all transfers of the shares of said business turst; that on or about July 13, 1925, said Ellery C. Wright, then confined to his house with sickness from which he died within three weeks from said date, called said Louis F. Wright, his son, to his bedside and directed him to make out a certificate of 50 shares of his stock in said Woodard & Wright Last Company in the name of the Plaintiff and to deliver said certificate to the Plaintiff, or to him for the Plaintiff, duly tendering to said Louis F. Wright for the purpose of said transfer the shares which he held. Said Ellery C. Wright also directed said Louis F. Wright to make out certificates of 50 shares each and deliver the same to the Plaintiff's brother and two sisters, or to him for said brother and sisters. As clerk of said business trust it was said Louis F. Wright's duty to make all transfers of shares and at the time said Louis F. Wright visited his father as aforesaid, he had the stock transfer book with him and was able to make said transfers. Said Louis F. Wright, however, refused to make out and to deliver a new certificate of said shares to the Plaintiff, or to him for the Plaintiff, unless his father, said Ellery C. Wright, would execute and give to him and to each of his two sisters a certificate of 300 shares each of the stock of said Company. Said Ellery C. Wright refused to do this. Thereupon, Louis F. Wright refused to make out said certificates or make said transfer, and never did make them out, or make said transfer, and the same were never made out or transferred. Immediately thereafter said Ellery C. Wright became mortally sick and never in any manner completed the proposed gift to the Plaintiff, although he attempted so to do but was unable because of said sickness. Wherefore, the Plaintiff has been damaged by the Defendant's interference with and hindrance of said proposed gift.’

The defendant demurred, alleging ten grounds of demurrer. The demurrer was sustained on three grounds, as follows: ‘The plaintiff's declaration sets forth no cause of action against this defendant’; ‘There is no cause of action for the interference with a voluntary gift’; and ‘It does not appear by the plaintiff's declaration that the defendant has violated any duty towards this plaintiff.’ Thereafter, as the plaintiff made no motion for amendment to the declaration, judgment for the defendant was ordered. The plaintiff appealed from the order sustaining the demurrer and from the order for judgment.

The demurrer was sustained rightly on the ground that the declaration sets forth no cause of action.

The plaintiff seeks to bring herself within the principle underlying tort actions for so-called malicious interference generally: that an intentional invasion of a legally protected interest without legal justification creates liability. See Walker v. Cronin, 107 Mass. 555, 564;Moran v. Dunphy, 177 Mass. 485, 487, 59 N. E. 125,52 L. R. A. 115, 83 Am. St. Rep. 289;Berry v. Donovan, 188 Mass. 353, 355, 356, 74 N. E. 603,5 L. R. A. (N. S.) 899, 108 Am. St. Rep. 499,3 Ann. Cas. 738;Lewis v. Corbin, 195 Mass. 520, 81 N. E. 248,122 Am. St. Rep. 261;McGurk v. Cronenwett, 199 Mass. 457, 461, 462, 85 N. E. 576,19 L. R. A. (N. S.) 561;Lopes v. Connolly, 210 Mass. 487, 494, 97 N. E. 80,38 L. R. A. (N. S) 986;Anderson v. Moskovitz, 260 Mass. 523, 526, 157 N. E. 601. The declaration in the present case does not state a cause of action against the defendant unless it alleges facts showing that the plaintiff had an interest which was legally protected against the alleged interference of the defendant and that such interference was the legal cause of damage to the plaintiff. Lewis v. Corbin, 195 Mass. 520, 527, 81 N. E. 248,122 Am. St. Rep. 261. Since justification is an affirmative defence (see Hartnett v. Plumbers' Supply Association of New England, 169 Mass. 229, 235, 47 N. E. 1002,38 L. R. A. 194;Godin v. Niebuhr, 236 Mass. 350, 351, 128 N. E. 406), a cause of action can be stated without negativing justification. It ‘is enough to allege and prove the conduct and effect, leaving the defendant to justify if he can.’ American Well Works Co. v. Layne & Bowler Co., 241 U. S. 257, 259, 36 S. Ct. 585, 60 L. Ed. 987.

With reference to the nature of the plaintiff's alleged interest, it is to be observed that the facts alleged in the declaration do not show that she had any right against the defendant or in the stock in question apart from the transaction between the decedent and the defendant; that any contract was entered into between the plaintiff and the decedent, any completed gift of the stock made by the decedent to the plaintiff, or any trust of such stock created by the decedent for her benefit; that the plaintiff in any manner acquired any property right in such stock, or that any right of action by the decedent against the defendant or the business trust for failure to transfer the stock was assigned to the plaintiff; that any relation existed between the decedent and the plaintiff except that of grandfather and granddaughter; that the decedent was under any legal or moral obligation to give the plaintiff the stock; that he ever promised her that he would give it to her; that she knew of his intention to give it to her, or that she changed her position in reliance upon any such promise or knowledge.

With reference to the nature of the defendant's alleged interference it is to be observed that the facts alleged in the declaration do not show that in refusing to transfer the stock the defendant acted with spite or illwill toward the plaintiff or anybody else, or in combination with any other person or persons in pursuance of a conspiracy.

The plaintiff's case rests solely upon the ground that the defendant, as a single individual, by refusing to make a transfer of the stock in question, intentionally, but not malevolently, interfered with the completion of an attempted gift of such stock by the decedent to the plaintiff, that is, with the plaintiff's expectancy of receiving such stock as a gift.

Protection is accorded against interference by a third person with an existing contract even when such contract is terminable at the will of the parties thereto. Moran v. Dunphy, 177 Mass. 485, 59 N. E. 125,52 L. R. A. 115, 83 Am. St. Rep. 289;Berry v. Donovan, 188 Mass. 353, 360, 74 N. E. 603,5 L. R. A. (N. S.) 899, 108 Am. St. Rep. 499,3 Ann. Cas. 738. But in Minasian v. Osborne, 210 Mass. 250, 255, 96 N. E. 1036, 1038, 37 L. R. A. (N. S.) 179, Ann. Cas. 1912C, 1299, where the court was dealing with the ‘plaintiffs' contractual rights to labor * * * terminable at will,’ it was said that while those rights ‘were entitled to protection against wanton interference * * * they were not so assured or valuable in nature as valid contracts for continued service for a definite period. It may well be that a stronger reason might be needed to justify interference with such contracts than with those here in question.’ Protection, however, is not accorded against indirect interference which is remote from the damage. See Anthony v. Slaid, 11 Metc. 290;Chelsea Moving & Trucking Co., Inc., v. Ross Towboat Co., 280 Mass. 282, 287, 182 N. E. 477. Protection is accorded also to the ‘right to carry on business, that is, to make contracts without interference,’ though this is ‘an altogether different right from that of being protected from interference with * * * rights under a contract already made,’ and interference therewith may be more readily justified. Beekman v. Marsters, 195 Mass. 205, 211, 212, 80 N. E. 817, 819,11 L. R. A. (N. S.) 201, 122 Am. St. Rep. 232,11 Ann. Cas. 332. In neither case, however, is it always essential that the means of intentional interference employed be unlawful per se if such interference is not for a justifiable purpose (Walker v. Cronin, 107 Mass. 555, 563, 564,Hartnett v. Plumbers' Supply Association of New England, 169 Mass. 229, 235, 236, 47 N. E. 1002,38 L. R. A. 194,Wheeler-Stenzel Co. v. American Window Glass Co., 202 Mass. 471, 473, 89 N. E. 28, L. R. A. 1915F, 1076,Anderson v. Moskovitz, 260 Mass. 523, 526, 157 N. E. 601), but even some contracts already made are of such a character that rights thereunder are not protected against intentional interference by means not in themselves unlawful. See Conway v. O'Brien, 269 Mass. 425, 169 N. E. 491, 73 A. L. R. 1448. Moreover, in Hebbits v. Constitution Indemnity Co. of Philadelphia, 279 Mass. 539, 542, 181 N. E. 723, protection of possible, but not assured, benefits under an existing contract not terminable at will against interference, intentional though not malevolent, by means not unlawful per se was refused without consideration...