Wampler v. Palmerton

• Citation: 250 Or. 65,439 P.2d 601
• Parties: William P. WAMPLER, Respondent, v. Loren PALMERTON and Richard Newman, Jr., Appellants.
• Decision Date: 10 April 1968
• Court: Oregon Supreme Court

Page 601

439 P.2d 601

250 Or. 65

William P. WAMPLER, Respondent, v. Loren PALMERTON and Richard Newman, Jr., Appellants.

Supreme Court of Oregon, Department 2.

Argued and Submitted June 9, 1967.

Decided April 10, 1968.

H. F. Smith, Klamath Falls, argued the cause for appellants. With him on the briefs was Paul E. Geddes, Roseburg.

James W. Walton, Corvallis, argued the cause for respondent. With him on the brief were Ringo, Walton & McClain, Corvallis.

Before PERRY, C.J., and SLOAN, O'CONNELL, GOODWIN and HOLMAN, JJ.

HOLMAN, Justice.

This is an action in tort for damages for humiliation, embarrassment, loss of reputation and credit rating, which is claimed to have resulted from interference by defendants with a contract between plaintiff and Diamond Lake Lumber Company (Diamond Lake). The defendants Newman and Palmerton appealed from a judgment of $72,500 in favor of plaintiff after a jury trial.

One of defendants' assignments of error is the court's denial of their motion for a directed verdict. They contend there is insufficient evidence to substantiate a cause of action against them. The facts stated in the manner most favorable to plaintiff are as follows.

Diamond Lake was a corporation engaged in the operation of sawmills. Defendant Newman was its President, its managing officer, a member of its board of directors and a stockholder. Defendant Palmerton, Newman's father-in-law, was employed by Diamond Lake as a business advisor. He was an unsecured creditor of the corporation in the amount of about $200,000 and a co-signer of its performance bond on a timber purchase contract subsequently described. He had the right under a contract with Diamond Lake and its stockholders to assume the management of the corporation for the benefit of its unsecured creditors. He did not exercise this right at any time material to this litigation.

Diamond Lake purchased a large block of government timber. It entered into a contract with plaintiff to log the timber for it in compliance with its contract with the government and to haul the logs to Diamond Lake's mills. The parties contemplated that the contract would take five years to complete. The government contract required, as part of the logging, that timber access roads be built to government specifications. The anticipated cost of the road construction was in the neighborhood of $300,000. Plaintiff assumed this obligation as part of the logging. The cost of road construction was one of the factors considered in fixing the price he was to receive for logs delivered at Diamond Lake's mills.

On April 20, 1959, when the written contract was made between plaintiff and Diamond Lake, Diamond Lake's assets were less than its liabilities, and plaintiff had a net worth of about $40,000. Defendants knew that plaintiff lacked the financial resources with which to make the large, preliminary expenditures necessary for roads. The defendant Newman, both before and after the execution of the contract with plaintiff, verbally assured plaintiff that Diamond Lake would assist by advancing money toward the cost of the roads. The defendant Palmerton, after the signing of the contract, told plaintiff he would personally help finance plaintiff's road building for up to four years. The exact amount of the financing promised by both Diamond Lake and Palmerton was never specified. The written contract contained no provision for financing plaintiff by Diamond Lake.

Subsequently both Diamond Lake and Palmerton either loaned their credit or advanced funds for the benefit of plaintiff. The corporation incurred an obligation of $54,000 to a third party for the building of roads which were plaintiff's obligation under his contract. Palmerton co-signed plaintiff's note for $30,000 to obtain money for road construction. The corporation advanced.$19,000 at the end of the 1959 logging season so plaintiff could pay his bills. It purchased culvert pipe for him in an unspecified amount at plaintiff's request. These were in addition to payments made pursuant to the contract for delivered logs. At the time of the breach in question, none of these advances had been substantially repaid by plaintiff. An oral agreement had been made at the end of 1959 that four dollars per thousand board feet of logs delivered would be withheld by Diamond Lake to reimburse it for money advanced for roads, but it appears that Diamond Lake had not availed itself of its right to do so prior to the time of the alleged breach.

The first logs were delivered under the contract in June of 1959. By the summer of 1960 Wampler had expended about $144,000 for roads, somewhat in excess of the financing provided by Palmerton and Diamond Lake. Wampler's financial situation was precarious. On July 25 he did not receive the entire amount due him for delivered logs. He received the approximate balance on the 27th. Payments in the past had been irregular. He thereafter discontinued most of his operations and requested a meeting with Diamond Lake. At the meeting, held on July 30, 1960, plaintiff said that he needed additional road advances to pay creditors. He also said that in the future the payments for logs must be on time. Plaintiff testified that the defendant Newman then told him that 'under the circumstances' he didn't see how Diamond Lake could pay plaintiff any more money. No explanation was offered as to what was meant by Newman or was understood by plaintiff by 'under the circumstances.' Plaintiff then told his employes that things looked 'shaky' and he probably would not get any more money from Diamond Lake. He had outstanding wage claims of about $24,000. He advised his employes to protect themselves by filing liens for their work on the logs. Some did. The contract required plaintiff promptly to satisfy liens filed by his workmen. After their meeting with plaintiff, both defendants met with Diamond Lake's attorney and participated in a decision that Diamond Lake should not make any payment to Wampler on August 10. A payment of about $38,000 ¹ for logs delivered was not made at that time. In view of the jury verdict this must be treated as an unexcused breach of the contract by Diamond Lake. Approximately one month later, plaintiff filed a petition for voluntary bankruptcy.

Diamond Lake had the funds to make the August 10 payment. Since Diamond Lake's liabilities exceeded its assets at the close of 1959 and 1960, and since the company incurred a net loss in 1960 of $160,069.84 and had an accumulated deficit of $232,048.37 in December 1960, it is likely that Diamond Lake's financial position was weak on August 10, 1960.

The relevant allegations of plaintiff's complaint are as follows:

'II

'That at all times herein mentioned that Diamond Lake Lumber Company was and is an Oregon corporation. The principal officers, stockholders and persons who were in the actual control of said corporation were Loren Palmerton, * * * Richard Newman. * * *. That said Diamond Lake Lumber Company, * * *, was organized, created, controlled and managed to further the personal purposes, uses, aims and to benefit the within named defendants.

'III

'* * * That said defendants did induce the plaintiff to enter into the said contract with Diamond Lake Lumber Company for the purpose of securing the use and benefit of the plaintiff's assets, credit and reputation, to further the purpose and business of said corporation and to thereby enrich the defendants. That said defendants, while being in control of said Diamond Lake Lumber Company, did thereafter willfully, and without just cause for said corporation failed to pay to the plaintiff monies due him, the defendant well knowing that said failure to pay monies due would proximately cause the plaintiff to be unable to meet his current obligations and thereby become bankrupt, thereby depriving the plaintiff of his assets, thereby enriching the Diamond Lake Lumber Company and the defendants and giving to said defendants the benefit of the labor rendered, roads built, services and acts done by the plaintiff. * * *'

Before it can be determined whether plaintiff's proof was sufficient, it is first necessary to establish the nature and elements of a cause of action in tort for interference with a contract, which is the cause of action plaintiff insists he has. The modern action results from the process by which the reach of several ancient remedies was extended. An ancestor of the cause of action is thought to have been the principle of Roman law which permitted the head of a family to sue for harm done by physical violence to a member of his family or his slave. ² The principle was carried over into early English common law. According to Bracton, an action against the person who injured an attendant or serf was given to a lord to protect his interest in not being deprived of the servant's services. ³ Further protection of this sort of interest was deemed necessary when the bubonic plague in the Fourteenth Century created a scarcity of workers. The Ordinance of Laborers ⁴ was enacted, upon which a cause of action was based for the enticing away of another's servants or workmen regardless whether violence was employed. Gradually, any distinction between the common law action and the statutory action disappeared. ⁵ The remedy was limited to recovery for enticement of a dependent member of another's household until 1853 when the case of Lumley v. Gye ⁶ decided that the defendant who persuaded an opera singer to break her contract with an opera company was liable. In 1893, in Temperton v. Russell, ⁷ the cause of action was extended to cover contracts other than those of employment. The defendant in Temperton induced by threats the breach of a contract to furnish building materials. ⁸

The interest protected by the interference with contract action is the interest of the individual in the security and integrity of the contractual relations into which he has entered. Economic relations are controlled...