Holden v. J. Stevens Arms Co.

230 Mass. 266

• Court: Massachusetts Supreme Judicial Court
• Decided: May 24, 1918
• Status: Published

Opinion

Braley, J.

The plaintiffs having performed their contract with the defendant the J. Stevens Arms Company, as set forth in the declaration and admitted by the demurrants, had earned their commission which could be recovered in an action of contract, but not in tort, which is the form of the present action. It is however further alleged, that, when the plaintiffs’ success in procuring the order for the manufacture of rifles from the Imperial Russian Government seemed to be reasonably certain of consummation, the company entered into an arrangement with the defendant the Westinghouse Electric and Manufacturing Company, which was •engaged in a similar business, whereby a scheme in which the individual defendants actively joined was set on foot to organize the defendant corporation the New England Westinghouse Company to acquire the contract procured by the plaintiffs for the Stevens Company. ■■■

The New England Company, whose stock was to be subscribed for by persons having no financial interest in its welfare, having' accordingly been incorporated and the capital stock of the Stevens Company having been sold to the Westinghouse Company, the Russian contract was transferred to the New England Company by whom it has been performed. It does not appear that the Stevens Company has been dissolved. Nor has the Westinghouse or the New England Company taken over its assets in furtherance of a plan without any justification to induce or coerce the Stevens-Company to commit a breach the consequences of which would effectually deprive the plaintiffs of the benefit of their contract. Garst v. Charles, 187 Mass. 144. And, notwithstanding the allegations that the capital stock of the New England Company is owned by the Stevens and Westinghouse companies, and the Stevens Cqmpany “has refused to recognize the plaintiffs in their claims-for commission on orders for rifles to be filled,” the plaintiffs fail to allege any tortious acts impairing their legal rights or preventing their enforcement by proper proceedings against the Stevens Company either at law or in equity. Beekman v. Marsters, 195 Mass. 205.

The general allegation that “ all of the defendants herein named knowingly and intentionally participated in said unlawful scheme and conspiracy” does not create a cause of action. It is only matter of characterization. The plaintiffs must rely on an actionable wrong in which all those who participated are principals, and therefore are liable either jointly or severally. Gurney v. Tenney, 197 Mass. 457. Feneff v. Boston & Maine Railroad, 196 Mass. 575. We know of no legal alchemy by which the allegations of the declaration can be transmuted into a cause of action.

The demurrers were sustained rightly, and the judgment for the defendants must be affirmed.

So ordered.