van Horn v. van Horn

• Decision Date: 26 February 1893
• Citation: 56 N.J.L. 318,28 A. 669
• Parties: VAN HORN v. VAN HORN et al.
• Court: New Jersey Supreme Court

28 A. 669

56 N.J.L. 318

VAN HORN

v. VAN HORN et al.

Court of Errors and Appeals of New Jersey.

Feb. 26, 1893.

Torts—Slander of Plaintiff's Business— Pleadings—Judgment.

1. In an action on the case against several for a tort, though a conspiracy be charged, one of the defendants may be found guilty and the other not guilty, the foundation of the action being the damage, and not the conspiracy.

2. Where the action is against two or more, alleging a conspiracy to destroy the plaintiff's business by false and malicious statements concerning his character, and no conspiracy is proven, a recovery may be had against one of the defendants, only, for injuries produced by false representations made by him with malice and ill will.

3. In such action it is not necessary to set out in the declaration the slanderous words which caused the injury. It is not regarded in the law as an action for slander, and the two years' limitation does not apply to it.

4. A creditor may lawfully inquire into the circumstances of his debtor, and the person inquired of may answer freely, and unless his communication be of facts which he does not honestly believe, or the communication be such as was made, not for the honest purpose of giving the desired information, but to gratify a malicious purpose, no action will lie.

(Syllabus by the Court.)

Error to circuit court, Essex county; Depue, Judge.

Action in tort for a conspiracy by Emma Van Horn and James Van Horn against Amos H. Van Horn and Casper Soer. There was judgment for plaintiffs against defendant Van Horn, and he brings error. Affirmed.

For reports of the supreme court, see 20 Atl. 485, 21 Atl. 1069.

Samuel Kalish, for plaintiff in error.

Robert H. McCarter, for defendants in error.

VAN SYCKEL, J. This suit was instituted by Emma Van Horn and her husband against Amos H. Van Horn and Casper Soer. The action is in tort, and the declaration, among other things, charges that the defendants conspired to injure Emma in her business of selling fancy goods, which she carried on in her own name, and that, by false and malicious statements concerning the personal and business character of Emma, they induced and persuaded one Snyder to remove the stock of goods he had supplied her with, and to refuse to deliver what he had expected to let her have, leaving her without any stock to sell or customers to sell to. To this declaration both defendants filed a general demurrer, which was certified to the supreme court for its advisory opinion. The opinion of the supreme court, found in 52 N. J. Law, 284, 20 Atl. 485, advised the circuit court to overrule the demurrer, and held: (1) That an action will lie for a combination or conspiracy by fraudulent and malicious acts to drive a trader out of business, resulting in damages. (2) The gravamen in a civil action, is not the conspiracy, but the malice; the former is matter of aggravation or inducement, only, in the pleading and evidence, under which one or all of the defendants may be found guilty. The defendants then filed a plea of the statute of limitations—that the cause of action did not accrue within two years next before the commencement of the suit. This plea is applicable exclusively to an action for slander. The declaration does not set forth the words spoken, and is not in form an action for words spoken, but a special action on the case to recover damages occasioned by the malicious conduct of the defendants. The supreme court decided that this is not an action for slander, and that the two years' limitation does not apply to it. 53 N. J. Law, 514, 21 Atl. 1069. The cause then went down for trial before the Essex circuit court, and no evidence being there produced to establish a conspiracy, or to justify a verdict against Soer, a verdict was directed in favor of the defendant Soer. The defendant Amos H. Van Horn then by his counsel insisted (1) that the facts set forth in the declaration would not sustain the action against the defendant Van Horn alone; (2) that the communication made by said Amos H. Van Horn to Snyder was privileged; (3) that the action was barred by the two years' limitation.

The evidence shows that Emma Van Horn's husband was engaged in the furniture business. The defendant was engaged in a similar business on the same street near by. The former was compelled to close his business by financial embarrassment, by reason of which he was ejected from the premises he occupied. Emma, his wife, then set up the millinery business in part of the premises which her husband had occupied. She commenced this business with an old stock of millinery goods, valued at bout $200, and entered into an arrangement with one Snyder to receive from him goods to be sold on commission, amounting to about $1,500, of which about $400 worth was delivered to her under this arrangement. Evidence was offered to show that Snyder withdrew from this agreement to furnish goods to Emma, influenced by representations made by Amos H. Van Horn to him, which were alleged to be false and malicious, in consequence of which her business was broken up. The jury was instructed that, if the acts done by the defendant were prompted by malice and ill will, with the purpose of injuring and obstructing the business of the plaintiff Emma, and such acts produced the injury complained of, the plaintiffs were entitled to recover. There was evidence upon which the jury had a right to find in favor of the plaintiffs on this issue. That evidence was properly submitted to the jury. In Parker v. Huntington, 2 Gray, 124, the action was against two for maliciously conspiring to have the plaintiff indicted. Mr. Justice Bigelow said that, by the ancient form of pleading, all actions for malicious prosecution, where two or more) were made defendants, were laid with a charge of conspiracy, which practice is supposed to have its origin in the phraseology of 21 Edw. I., but that the charge of conspiracy was never deemed essential; it is mere surplusage, and need not be proved, and there may be a recovery against one or both. In Pollard v. Evans, 2 Show. 51, a recovery against one in an action on the case for conspiracy was maintained. This conclusion rests upon the rule as stated in Wellington v. Small, 3 Cush. 145, that, in an action on the case for conspiracy, the gist of the action is not the conspiracy, but the damage done to the plaintiff. This is in accordance with the declaration of Lord Holt in Savile v. Roberts, 1 Ld. Raym. 374, that conspiracy is not the groundwork of the action, but the damages done the party. Austin v. Barrows, 41 Conn. 287, charged conspiracy, but the court held that the allegation of conspiracy brought no strength to the declaration, for it shows no additional cause of action; an act which, if done by one alone, is no cause of action, is not rendered actionable by being done in pursuance of a conspiracy. In Steamship Co. v. McGregor, 15 Q. B. Div. 476, which alleged a conspiracy to injure plaintiff's trade, Lord Chief Justice Coleridge said that an action would lie for damages done to business by a conspiracy. When this case came again before the Lord Chief Justice, as reported in 21 Q. B. Div. 544, he said that in a civil action it is the damage which results from the...