Murray v. McGarigle

34 N.W. 522, 69 Wis. 483, 1887 Wisc. LEXIS 222

• Court: Wisconsin Supreme Court
• Decided: October 11, 1887
• Status: Published

Opinion

Orton, J.

The complaint in this action is very long, and yet perhaps no longer than necessary in such a case, and the defendants are numerous, and each defendant appears by his own separate counsel, to demur, or strike out, or for some other purpose. The great skill and ability of the numerous counsel employed in making each his own assault upon the complaint have made a voluminous record upon this appeal, and one (as might have been expected) very much involved and confused, and very intricate and difficult to consider and dispose of in an opinion of reasonable length. To copy, or even abstract, the complaint, or state formally the various objections to it by the . demurrers or motions, would serve no useful purpose, and we shall therefore dispose of these objections as briefly as may be, and give sufficient reasons for the rulings. It is apparent that very many of the objections have arisen from a misapprehension of the theory and purpose of the complaint. It is a case of conspiracy, and the various allegations of the complaint must be tested by what is required in such a case. The county court seems to have sustained all the objections in a manner appropriate to the demurrers and motions, and the plaintiff has appealed from the various orders together.

The complaint seeks to set out, by way of inducement, the circumstances under which the injury complained of was committed,— the conspiring together and common purpose of the defendants, and the means used to accomplish their common purpose, the object to be attained, the overt acts of one or more of the defendants in pursuance of such common purpose, and, lastly, the resulting injury and damage to the plaintiff. The complaint in form would seem to be sufficient, and answer the requirements of an action for conspiracy.

1. The objection that there is a defect of parties ought to have pointed out the defect. Sec. 2651, R. S.; Baker v. Hawkins, 29 Wis. 576. This objection does not reach a case of excess of parties defendant, and if it did, this is an action of tort, and such excess would be no objection. Ludwig v. Cramer, 53 Wis. 193.

2. That the court has no jurisdiction of the subject of the action is frivolous.

3. That the plaintiff has no legal, capacity to sue. This implies legal disability, and does not go to the cause of action (People ex rel. Lord v. Crooks, 53 N. Y. 648), and is untenable.

4. That the defendant McGarigle is a necessary party plaintiff. It may be true that this defendant and the plaintiff were partners in matters affected by the conspiracy, but he is charged as one of the conspirators, which makes his blame greater, and less excusable, and he is not interested in the damages. In such cases partners may and should sever. Pars. Partn. (2d ed.), 338; Ludwig v. Cramer, supra; Noonan v. Orton, 32 Wis. 106; Slutts v. Chafee, 48 Wis. 617. “ If a third person colludes with one partner in a firm to injure the other partner or partners the latter can sustain an action.” 1 Colly. Partn. 623-1027; Pars. Partn. 339.

5. That several causes of action are. improperly united. The libel charged against Buell and McGarigle is one of the overt acts in carrying out the common design of the conspiracy, and not a distinct and separate cause of action.

6. That the complaint does not state a cause of action. This objection is clearly untenable. The complaint states every fact necessary to constitute a cause of action against all of the defendants, and they are all charged as being in the conspiracy, and all connected by overt acts, singly or together, to carry it out. The damage is the gist of the action, and they are combined to produce the injury. The conspiracy and injury concur by proper averments, connecting all the defendants therewith.

7. That the complaint is indefinite and uncertain — First, in that the words in a certain part of the complaint “ from them” are not connected with any certain persons by proper reference. It is not perceived wherein there is the least obscurity as to who are meant by the word “them.” Second, in that the names of the members of Bobert Chivas Post to whom the plaintiff could have sold coal are not stated. It would be impossible for the plaintiff to state who those persons all are with whom the plaintiff had contracts for the sale of coal, or might have, without swelling the complaint in suGh cases beyond all bounds. This could be supplied by the testimony much easier. All the evidence to sustain an action for conspiracy need not be stated in the complaint. It is said in Rex v. De Berenger, 3 Maule & S. 67: “ It seems to me not to be necessary to specify the persons who became purchasers of stock, as the persons to be affected by the conspiracy,” etc. See, also, Tappan v. Powers, 2 Hall, 277.

8. That certain parts of the complaint should be stricken out as surplusage, redundant, or irrelevant. Those parts of the complaint so pointed out appear to contain most material and- proper averments to connect the defendant McGarigle with the conspiracy together with the defendant Buell.

We do not think that the complaint is liable to any of these objections, and we are satisfied that all of said orders appealed from are erroneous, and ought to be reversed. It is no discredit to this opinion that it embraces so much of the brief of the learned counsel of the appellant, who has had large experience as a lawyer in actions for conspiracy.

By the Court.— The orders of the county court appealed from are reversed, all and singular, and the case is remanded with direction to overrule said demurrers and motions, and for further proceedings according to law.