Schwenn v. Schwenn

166 N.W. 171, 166 Wis. 420, 2 A.L.R. 281, 1918 Wisc. LEXIS 29

• Court: Wisconsin Supreme Court
• Decided: January 5, 1918
• Status: Published

Opinions

NeewiN, J.

We have set forth the substance of the complaint in the statement of facts. It clearly states that the defendants combined and conspired to produce a breach of the contract obligations of Fritz Schwenn to the plaintiff and prevent her from receiving the benefits provided for her in the contract, and that they succeeded in producing a breach of the contract, to the injury of plaintiff in the sum of $500. The facts set forth in the complaint include all the elements which have been held in several decisions of this court to be essential in an action for damages for an executed conspiracy to injure. Martens v. Reilly, 109 Wis. 464, 84 N. W. 840; Patnode v. Westenhaver, 114 Wis. 460, 90 N. W. 467; Randall v. Lonstorf, 126 Wis. 147, 105 N. W. 663; White v. White, 132 Wis. 121, 111 N. W. 1116; McLennan v. Church, 163 Wis. 411, 158 N. W. 73; and other cases in this court.

In the instant case upon the allegations of the complaint there was a combination of two or more persons to do an unlawful act, to wit, to produce a breach of a contract obligation, accomplishment of that purpose, and resulting damage to the person designed to be injured.

In White v. White, supra, the rule applicable to such a situation is thus in effect stated: Any combination of two or more persons to do an unlawful act, such as to breach a contract, by any means which is carried out is an actionable conspiracy for which those participating must respond in damages to the person injured.

Counsel for appellants relies upon Field v. Siegel, 99 Wis. 605, 75 N. W. 397, where it is held that a general creditor cannot maintain an action against his debtor and others with whom he conspired to place all his property beyond the reach of his creditors, to recover damages. Much that is said in the opinion does not, seem to apply to that case and certainly does not apply to the instant case. In Field v. Siegel the conspiracy entered into was to defraud creditors generally, while in the case at bar the action is against the defendants who entered into a conspiracy for the express purpose of breaching the contract between Eritz Sehwenn and plaintiff and preventing her from recovering the fruits thereof, and which did in fact accomplish that purpose. In Field v. Siegel it is suggested that it is essential to the recovery of damages for a consummated conspiracy to injure that the damages “must be a clear and necessary consequence of the fraudulent act and of a character to be clearly defined and ascertained.” There can be no question but that such elements are clearly alleged in the case at bar. It. is also said in the Field-Siegel Case, “No action lies for simply conspiring to do an unlawful act. It is the doing the act itself, and the resulting actual damage to the plaintiff, which furnish the ground of the action.” This statement is good law, but the precise situation so stated to be essential to such an action as this is clearly alleged in the complaint in the instant case and seems to have been in the case with which the court was dealing.

Again the court said in Field v. Siegel, “An act which, if done by one alone, constitutes no ground of an action on the case, cannot be made the ground of such action by alleging it to have been done by and through a conspiracy of several.” That was expressly said not to be the law of this state in Slate ex rel. Durner v. Huegin, 110 Wis. 189, 85 N. W. 1046. It will be seen that the Field Case as treated by the court is quite different from the instant case, as appears from the reasoning of the court in that case.

The holding here is that where, as in the present case, there is charged a conspiracy to defeat or breach one specific contract, or certain specific contracts, by the fraudulent transfer of the debtor’s property, an action for damages lies against the conspirators. Whether such an action would lie where the conspiracy is to defraud, creditors generally, as in Field v. Siegel, supra, is not decided.

As regards the first ground of demurrer it is only necessary to say that it is wholly without merit. The action was not brought against Fritz Schwenn or his estate, but against the defendants who conspired with him and obtained his property. Further discussion seems unnecessary.

Our conclusion is that the complaint must be sustained, upon the authority of many cases decided by this court since Field v. Siegel, supra.

The order of the court below must therefore be affirmed, and anything said in Field v. Siegel, supra, in conflict with this opinion must be deemed overruled.

By the Court. — The order appealed from is affirmed.