Summary
holding allegations of slander, sabotage, and intimidation were sufficient to state claim for civil conspiracy
Summary of this case from Waldrep Bros. Beauty Supply, Inc. v. Wynn Beauty Supply Co.Opinion
14961
November 6, 1939.
Before GRIMBALL, J., Union, December, 1938. Affirmed.
Action by J. Hoyle Charles against the Texas Company and others, sounding in tort for an alleged conspiracy. From judgment denying motion to make more definite and certain, and motion to strike certain allegations from the complaint, the defendants appeal.
Complaint and grounds to amend complaint follow:
COMPLAINTThe plaintiff above named, complaining of the defendants herein, alleges:
1. That the plaintiff is a resident and citizen of the County of Union, State of South Carolina.
2. That, as the plaintiff is informed and believes, the defendant Texas Company, hereinafter referred to as the defendant corporation, is a large and powerful corporation of vast resources and great wealth, created, organized and existing under and by virtue of the laws of the State of Delaware, and duly licensed and authorized to engage in and do business in the State of South Carolina, and was at all times pertinent hereto, and still is, engaged in handling, distributing and selling gasoline, kerosene, lubricating oils and other petroleum products, at wholesale and retail, in this State, and particularly in the County of Union, wherein it maintains a distributing plant and has a distributor or commission representative.
3. That, as the plaintiff is informed and believes, the defendant H.G. Ezelle is a resident of the County of Richland, State of South Carolina; and that the defendant G. B. Lynch is a resident of the County of Union, State aforesaid.
4. That on or about the 3d day of February, 1926, the plaintiff and the defendant G.B. Lynch entered into a partnership agreement for the purpose of selling and distributing petroleum products in the City and County of Union; that such partnership was continued in operation until on or about the 21st day of July, 1938, when the same was dissolved under the circumstances hereinafter more fully set forth; that on or about the 2d day of August, 1934, in order to carry out the purpose of said partnership, the defendant G.B. Lynch entered into a consignment agreement with the defendant corporation to handle, sell and distribute its petroleum products, as aforesaid, in the City and County of Union; that although said consignment agreement was executed by the said G.B. Lynch individually, it was understood and agreed by and between the plaintiff and the said G.B. Lynch that said consignment agreement should enure fully and completely to the benefit of said partnership; that such understanding and agreement was known to, and acquiesced in by, the defendant corporation; that the profits and emoluments earned under said consignment agreement were supposed to have been put into the earnings and profits of said partnership, and that from time to time the plaintiff received divers sums of money out of the funds of said partnership, which said sums were represented to him to be an amount equal to fifty per cent. of the profits earned under said consignment agreement.
5. That the business of said partnership was conducted and operated in a manner which appeared to the plaintiff to be harmonious until on or about July 13, 1938, up until which time the plaintiff had no reason to suspect or believe that his connection with said partnership was unsatisfactory either to the defendant G.B. Lynch or to the defendant corporation; and that the acts, statements and conduct of the defendants, as hereinafter more fully set forth, were done, made and committed without any excuse or provocation whatsoever, and came as an utter surprise and shock to the plaintiff.
6. That on or about the 13th day of July, 1938, the defendant H.G. Ezelle (who on that occasion and at all other times hereinafter mentioned was acting individually and as the agent and zone manager of the defendant corporation, within the actual scope and course of his authority as such agent, and with the consent, authorization, knowledge and approval of the defendant corporation) visited the place of business of said partnership, and engaged in a protracted private conversation with the defendant G.B. Lynch; that on the occasion of said private conversation, or at some time prior or subsequent thereto, as the plaintiff is informed and believes, the defendant G.B. Lynch and the defendant H.G. Ezelle, acting individually, and the defendant corporation, acting by and through its agent, the said H.G. Ezelle, did agree, combine, scheme, and conspire together to eliminate and oust the plaintiff from said partnership and to eliminate and oust him from the petroleum business entirely, in the manner hereinafter more fully set forth.
7. That shortly after said conversation between G.B. Lynch and H.G. Ezelle was had the defendant G.B. Lynch, pursuant to and in furtherance of the aforesaid combination, scheme and conspiracy, willfully, maliciously and falsely represented to the plaintiff that the aforesaid consignment agreement had been cancelled and revoked by the defendant corporation, that as a result thereof the dissolution of said partnership had become necessary, and that the plaintiff would have to get out and make other arrangements for himself; that the said G.B. Lynch knew at the time that such representations were false and untrue; that thereafter the plaintiff learned that said consignment agreement had not and would not be cancelled by the defendant corporation, and the plaintiff then declined to consent to a dissolution of said partnership, because he saw no valid reason or necessity therefor; whereupon the defendant G.B. Lynch threatened to place the assets of said partnership into receivership, tie up its business and affairs in that manner, and thereby deny to the plaintiff the use of the capital and assets of said partnership business, practically all of which had been furnished by the plaintiff, and which comprised the large part of his life savings; that, in the face of such threats and duress, the plaintiff was forced to agree to a dissolution of said partnership, and to sign a dissolution agreement drafted by attorneys employed by the said G.B. Lynch, which said dissolution agreement was most unfavorable to the plaintiff in that he was denied his proper share, in value, of the assets of said partnership and was thereby forced to assume the payment of practically all its outstanding obligations.
8. That the said dissolution agreement was executed by the plaintiff and the said G.B. Lynch on the 21st day of July, 1938, to become effective on the 31st day of July, 1938; that during the interval of time that elapsed between said dates, and while the original partnership agreement was still in full force and effect, the plaintiff was locked out of, and refused admittance to, the plant and premises occupied by said partnership and was denied access to its books, records and accounts.
9. That immediately upon the execution of said dissolution agreement the plaintiff, faced with the necessity of establishing himself in business alone, set about to secure the distributorship for another line of petroleum products and to engage in business as an independent petroleum products dealer; that thereupon the defendant G.B. Lynch, the defendant H.G. Ezelle, acting individually, and the defendant corporation, acting by and through its duly authorized agent and zone manager, the said H.G. Ezelle, finding that their combination, scheme and conspiracy, as above set forth, had not produced the desired results of driving the plaintiff out of the petroleum business, as aforesaid, and finding further that the plaintiff had started a business in competition with their own, and motivated by envy, ill will, spite and malice, did secretly and unlawfully further agree, combine, unite, scheme and conspire together for the purpose and with the design and intent of restraining, damaging, ruining, crushing and wrecking the plaintiff and driving him out of business and eliminating him as a competitor; and that pursuant to, and in furtherance and consummation of, said unlawful agreement, combination, scheme and conspiracy, the defendants herein, their co-conspirators, agents, servants, aiders and abetters, have acted, united and co-operated together and have committed, or caused to be committed, numerous illegal and vicious acts, to the plaintiff's great injury and damage, as hereinafter more fully set forth.
10. That in the division of the assets of said partnership, its lease on Whiteway Service Station in the City of Union was allocated to the plaintiff; that, on or about July 26, 1938, and before the plaintiff had begun to supply said station with petroleum products, the defendant G.B. Lynch, his agents and servants, acting pursuant to, and in furtherance of, said combination, scheme and conspiracy, as the plaintiff is informed and believes, sold to, and deposited in the underground tank of, said service station, a supply of gasoline that had been diluted or mixed with kerosene, or some other deleterious substance that rendered the same unfit or undesirable as motor fuel; that the said mixture did not and does not pass the specifications for gasoline prescribed by the laws of this State, although the same was sold and delivered to said service station as first grade, Texaco Fire Chief gasoline; that, as the plaintiff is further informed and believes, the said mixture was deposited at said service station, as aforesaid, with the intent and for the purpose of causing dissatisfaction and distrust among the customers thereof, so as to decrease the sale of gasoline at said station and injure the plaintiff's business thereat when he should begin supplying said station with petroleum products on August 1, 1938, pursuant to the terms of said dissolution agreement as the defendants well knew the plaintiff would do; and that, as a result of such conduct, much dissatisfaction and distrust was actually caused and created among the customers of said station, all to the great embarrassment, injury and damage of the plaintiff.
11. That on or about August 1, 1938, after the plaintiff had acquired a lease on, but before he had begun to furnish petroleum products to, that certain service station operated by Lee Kendrick at Santuc, S.C. the defendant G.B. Lynch, who for the time being was supplying said service station with gasoline, his agents and servants, acting pursuant to, and in furtherance of said combination, scheme and conspiracy, as the plaintiff is informed and believes, sold to, and deposited in the underground tank of, said station, a supply of gasoline that had been diluted or mixed with kerosene or some other deleterious substance that rendered the same unfit or undesirable as motor fuel; that the said mixture did not and does not pass the specifications for gasoline prescribed by the laws of this State, although the same was sold and delivered to said service station as first grade, Texaco Fire Chief gasoline; that, as the plaintiff is further informed and believes, the said mixture was deposited at said service station with the intent and for the purpose of causing dissatisfaction and distrust among the customers thereof so as to decrease the sale of gasoline at said service station and injure the plaintiff's business thereat when he should begin supplying said station with petroleum products on August 3, 1938, as the defendants well knew the plaintiff would do; and that, as a result of such conduct, much dissatisfaction and distrust was actually caused and created among the customers of said station, all to the great embarrassment, injury and damage of the plaintiff.
12. That, as the plaintiff is informed and believes, on or about the 3d day of August, 1938, pursuant to, and in furtherance of, said combination, scheme and conspiracy, and in order more hastily to wreck and destroy the plaintiff's business, the defendant H.G. Ezelle, acting individually and as the agent of the defendant corporation, came to the City of Union and, in company with the said G.B. Lynch, spent several days in visiting all the service stations formerly supplied with petroleum products by said partnership, including those stations allocated to the plaintiff under the aforesaid dissolution agreement, and offered to sell to the operators of said stations kerosene and motor oils at prices substantially below the regular prices prevailing in this territory, and offered to give said operators divers sums of money, and used and made various other means, representations and misrepresentations concerning the plaintiff, in an effort to dissuade said service station operators from doing business, or from continuing to do business, with the plaintiff, and to entice them to handle the products of the defendant corporation.
13. That on divers occasions during the month of August, 1938, pursuant to, and in furtherance of, said combination, scheme and conspiracy, the defendant H.G. Ezelle, acting individually and as agent of the defendant corporation, accosted the plaintiff, and made certain statements and threats in an effort to intimidate and coerce the plaintiff and force him out of business under duress; that on one of said occasions the said H.G. Ezelle stated to the plaintiff that the defendants would see the plaintiff in hell before they would permit him to establish a business in competition with theirs in the City of Union and vicinity; and that on another of said occasions the said H.G. Ezelle expressed to the plaintiff the intention of the defendants to bring three high-pressured salesmen to Union and drag the plaintiff through the gutter.
14. That at the time of the dissolution of said partnership several service stations in Union County that had been trading with said partnership were allotted neither to the plaintiff nor to the said G.B. Lynch, but said stations were left free to trade with the plaintiff or the defendant G.B. Lynch, as the owners of said stations should desire; that the plaintiff was successful in negotiating leases and sales agreements with several of said stations to handle and sell his new line of petroleum products, which said leases and sales agreements were given and entered into freely and voluntarily by the owners and operators of said stations; that it is the custom among the major oil companies of the United States to sell to one another, at certain specified prices, their equipment at service stations when the operators of such stations change over from one line of petroleum products to another; that when the plaintiff negotiated his leases and sales agreements as aforesaid, the defendants, pursuant to, and in furtherance of, the aforesaid combination, scheme and conspiracy to wreck the plaintiff's business, as the plaintiff is informed and believes, failed and refused to sell or bill the equipment at some of said stations to the plaintiff or to the oil company from whom he was then purchasing his supply of gasoline; and that, while the defendants offered to sell or bill the equipment at some of said stations, they offered said equipment to the plaintiff and the company from whom he was purchasing his supply of gasoline at the rate of $90.00 per unit for the identical equipment that had been billed and sold to the defendant corporation about four years prior thereto at the rate of approximately $10.00 per unit.
15. That the defendants, finding that their agreement, combination, scheme and conspiracy, to wreck the plaintiff's business as aforesaid, was not producing the intended results as promptly and effectively as was desired by them, further united, combined, conspired and agreed together upon a plan and scheme of slandering the plaintiff and his business and of intimidating, coercing and unlawfully enticing his customers to discontinue doing business with him; and that such scheme of slander, intimidation, coercion, and unlawful enticement was made evident and was consummated in the following particulars, among others, to wit:
(a) That on or about the 15th day of August, 1938, the defendant G.B. Lynch threatened and boasted to the plaintiff, in the presence of G.K. Knox, one of the plaintiff's customers, that the defendant had arranged to have the plaintiff's supply of gasoline cut off and to break up his connection with the oil company from whom the plaintiff was then purchasing his supply of gasoline.
(b) That on or about the 7th day of September, 1938, as the plaintiff is informed and believes, the defendant G.B. Lynch, his agents and representatives, falsely represented to Mr. and Mrs. G.K. Knox, who operated a service station that was then being supplied by the plaintiff, that the plaintiff was charging them an excessive price for gasoline, and the said G.B. Lynch offered to supply them with third grade gasoline, manufactured and sold by the defendant corporation, at a price of $15.45 per one hundred gallons, which was 55¢ per one hundred gallons less than the standard price therefor prevailing in this community; and that the plaintiff is informed and believes that the defendants are now supplying the said Mr. and Mrs. G.K. Knox with third grade gasoline or white gasoline at the price of $15.45 per one hundred gallons.
(c) That on or about the 19th day of September, 1938, the defendant G.B. Lynch, as the plaintiff is informed and believes, purchased two quarts of gasoline from the service station operated by Lee Kendrick at Santuc, South Carolina, whereat the mixture of gasoline and kerosene or some other deleterious substance had been delivered by the said G.B. Lynch on or about August 1, 1938, as hereinbefore alleged, and carried said two quarts of gasoline to said service station operated by Mr. and Mrs. G.K. Knox, exhibited said gasoline to Mr. and Mrs. Knox, and stated to them, in substance, that the said two quarts of gasoline was a mixture of gasoline and kerosene that he, the said G.B. Lynch, had just purchased at a service station supplied by the plaintiff; thereby falsely charging the plaintiff with, and creating the false impression that he was guilty of, cheating and defrauding his customers and the public; all of which the defendant well knew would, and did, injure and damage the plaintiff's business and reputation and cause his customers to become dissatisfied and afraid to do business with him.
(d) That the defendants in a further effort to persuade and encourage the said Mr. and Mrs. G.K. Knox to discontinue the use and sale of the plaintiff's products, as the plaintiff is informed and believes, offered to pay, and did pay them the sum of $100.00 in cash and agreed to install, and did install, in their place of business a new electric gasoline pump, valued at $240.00, and an air compressor, valued at $75.00, and in addition thereto offered to give, and did give, them a discount of 1.1¢ per gallon on kerosene in addition to the regular commissions thereon.
(e) That, as a result of the false representations and malicious conduct and of the unethical, unlawful and unfair practices on the part of the defendants as referred to in Paragraphs 15(a), (b), (c), and (d) hereof, the said Mr. and Mrs. G.K. Knox discontinued handling and selling the plaintiff's products and changed over to the products manufactured, sold and distributed by the defendants herein, all to the plaintiff's great injury and damage.
(f) That during the latter part of the month of August, 1938, as the plaintiff is informed and believes, the defendant G.B. Lynch, his agents and representatives, stated to one William McLurklin, who operated a filling station in Union County that was then being supplied with petroleum products by the plaintiff, that if he, the said William McLurklin, continued to trade with the plaintiff he would get himself in serious trouble; and that although the said William McLurklin had expressed his desire to continue trading with the plaintiff, the said G.B. Lynch, his agents and employees, broke the lock on the underground tank at the place of business of the said William McLurklin, put fifty gallons of gasoline in said tank, and by threats, duress and acts of intimidation, forced the said William McLurklin, who is an old colored man, to accept said gasoline and pay for the same against his expressed wishes and desire.
(g) That on or about the 4th day of August, 1938, as the plaintiff is informed and believes, the defendant G.B. Lynch, his agents and employees, called at said service station at Santuc, South Carolina, operated by Lee Kendrick, who had just entered into an agreement to purchase petroleum products from the plaintiff, and stated to the said Lee Kendrick that if he did not continue to handle the products manufactured and sold by the defendant corporation, the defendants would have his supply of gasoline cut off entirely and make it impossible for him to obtain gasoline elsewhere.
(h) That on or about the 29th day of August, 1938, as the plaintiff is informed and believes, the defendant H.G. Ezelle, acting individually and as agent of the defendant corporation, visited the service station operated by the said Lee Kendrick, and stated to Mr. Kendrick that the plaintiff would be out of business within twelve months' time and that the service stations supplied by the plaintiff would then be unable to obtain supplies of gasoline elsewhere.
(i) That on numerous and repeated occasions, as the plaintiff is informed and believes, the defendant G.B. Lynch, his agents and representatives, approached one Gordon B. Godshall, who operated a service station that was then being supplied by the plaintiff, and falsely represented to the said Gordon B. Godshall that he was being charged higher prices for gasoline than were the plaintiff's other customers, and, as a means of enticing the said Gordon B. Godshall to discontinue doing business with the plaintiff, the said G.B. Lynch, his agents and representatives, offered to supply the said Gordon B. Godshall with third grade gasoline, manufactured and sold by the defendant corporation, at the price of $15.45 per one hundred gallons, which was 55¢ per one hundred gallons less than the standard price therefor prevailing in this community; and that as a result of such continued annoyance and false representations, the said Gordon B. Godshall gave up said service station and withdrew from the gasoline business altogether.
(j) That, on divers occasions during the month of September, 1938, in an effort to dissuade W.M. Denton, a service station operator at Lockhart, South Carolina, from doing business with the plaintiff, as the plaintiff is informed and believes, the defendant G.B. Lynch offered to give the said W.M. Denton a rebate of 1¢ per gallon, in addition to regular commissions, on all kerosene purchased from the defendants by Mr. Denton if he would discontinue handling the plaintiff's products and handle the petroleum products manufactured and sold by the defendant corporation.
(k) That on or about the 19th day of September, 1938, the defendants cut the price of kerosene from the regular rate prevailing in the community of 11.1¢ per gallon to 10¢ per gallon, and still continued to pay to their customers the regular cash rental that said customers had been receiving prior to such cut in the price of kerosene; and that the defendants approached practically all of the plaintiff's customers with their proposition as aforesaid, in an effort to persuade said customers to break their leases and agreements with the plaintiff and discontinue handling his line of products, although, as the plaintiff is informed and believes, the defendants well knew that they could not make a profit on kerosene sold on the terms proposed by them, but the defendants knew further that they could well afford to make a temporary sacrifice, and draw upon their vast financial reserve, wealth and resources to wreck the plaintiff's business by cutting prices and causing dissatisfaction among his customers, and thereafter raise the price of kerosene back to the regular rate.
16. That all of the acts, deeds, statements, representations and misrepresentations by the defendants, as hereinbefore alleged, were done, made and committed by the defendants, pursuant to, and in furtherance and consummation of, the aforesaid agreement, combination, scheme and conspiracy and were motivated by envy, ill will, spite and malice, and with the purpose, design and intent of wrecking the plaintiff's business and ruining and defaming his reputation, and of squeezing the plaintiff out of the petroleum business and eliminating him as a competitor of the defendants; that said acts, deeds, statements, representations and misrepresentations were illegal and contrary to the standards of fair trade and competition and contrary to the laws of the State of South Carolina; and that as a direct and proximate result thereof, the plaintiff has been subjected to great public scorn, humiliation, inconvenience, trouble and expense, and has suffered great loss, injury and damage to his business and reputation to the extent of two hundred and fifty thousand dollars damages, both actual and punitive.
Wherefore, the plaintiff demands judgment against the defendants for the sum of $250,000.00 damages, actual and punitive; for the costs and disbursements of this action; and for such other and further relief as to the Court may seem just and equitable in the premises.
GROUNDS OF MOTION TO AMEND COMPLAINT1. By striking from Paragraph 7 the words, "and to sign a dissolution agreement drafted by attorneys employed by the said G.B. Lynch," and continuing to the end of said paragraph, on the ground that the same are irrelevant and redundant, and do not constitute any grounds for liability against these defendants.
2. By alleging in Paragraph 10 of the complaint the names of the customers of the Whiteway Service Station who became dissatisfied with the station as a result of the alleged acts of defendants.
3. By alleging in Paragraph 11 the names of the customers of Lee Kendrick who became dissatisfied with the station as a result of the alleged acts of the defendants.
4. By alleging in Paragraph 12 the names of the operators of service stations whom the defendants Ezelle and Lynch visited on the dates alleged.
5. By striking out of Paragraph 12 the words "and offered to sell to the operators of said stations, kerosene and motor oils at prices substantially below the regular prices prevailing" and on through to the end of said paragraph, on the ground that the said words are irrelevant and redundant and do not form the basis for any liability on the part of these defendants to the plaintiff.
6. Failing in the motion to have the words in the above-mentioned paragraph stricken out, by making the same more definite and certain by alleging the price at which the defendants offered to sell to the said operators, and the prices which were at that time prevailing in the community, and the price at which the plaintiff had offered to sell gasoline to the said operators at the same time, and by alleging what other representations and misrepresentations were made by these defendants concerning the plaintiff.
7. By striking out all of Paragraph 13, on the ground that the same is irrelevant and redundant, and constitutes no ground of legal liability on the part of these defendants.
8. By alleging in Paragraph 14 the names of the stations with whom the plaintiff entered into contracts of lease and sales agreements, and by striking out of said paragraph the words beginning, "That it is the custom among the major oil companies of the United States," and on through to the end of the paragraph, on the ground that the same are irrelevant and redundant, and do not form the basis of any legal liability on the part of these defendants.
9. By striking from Paragraph 15 all of Subsections (b), (d), and (e) and by striking out of Subsection (i) the words beginning "and, as a means of enticing the said Gordon B. Godshall to discontinue doing business with the plaintiff," on to the end of said subsection, on the ground that the same are irrelevant and redundant and constitute no ground of legal liability on the part of these defendants.
10. By striking out of Paragraph 15 all of subsections (j) and (k), and failing therein, by alleging in said subsections the price at which the plaintiff was selling or offering to sell gasoline and kerosene to the same customers, and by alleging in Paragraph (k) the names of plaintiff's customers whom defendants approached.
Messrs. Tompkins Tompkins and Barron, Barron Walker, for appellant, cite: Duress: 13 C.J., 399, 401; 193 S.E., 412; 67 S.E., 913; 144 S.E., 545; 62 A.L.R., 1474; 182 S.C. 527; 189 S.E., 890. Pleadings: 79 S.C. 310; 60 S.E., 696; 167 S.C. 41; 165 S.E., 124. As to right to meet competition: 41 C.J., 139; 276 F., 686; 261 U.S. 463. Conspiracy: 12 C.J., 631; 163 S.C. 13; 161 S.E., 195; 17 R.C.L., 193; 184 S.C. 266; 192 S.E., 261.
Messrs. Bryan Mozingo and Hughes White, for respondent, cite: Pleadings: 12 C.J., 630, 613; 11 A.J., 579; 21 R.C.L., 144; 74 S.C. 21; 52 S.E., 786; 93 S.C. 556; 78 S.E., 679; 163 S.C. 13; 161 S.E., 195; 81 S.C. 354; 62 S.E., 404; 185 S.C. 449; 194 S.E., 332; 74 S.C. 430; 54 S.E., 610; 65 S.C. 222; 43 S.E., 665.
November 6, 1939. The opinion of the Court was delivered by
J. Hoyle Charles brought his action sounding in tort for an alleged conspiracy against the Texas Company, a corporation, H.G. Ezelle, one of its agents, and G.B. Lynch, the alleged partner or former partner of the plaintiff, Charles. The complaint is voluminous and alleges numbers of incidents which are claimed to be related to the conspiracy or of probative value in the proving of the conspiracy.
After the service of the summons and complaint the attorneys for the defendants gave notice of a motion to make more definite and certain and also a motion to strike certain allegations from the complaint on various grounds. This motion was heard before the presiding Judge who refused to require the plaintiff to make his complaint more definite and certain and also refused to strike from the complaint the allegations complained of. From this order of the presiding Judge timely appeal was taken. There are six exceptions which will be taken up in order.
Exception I complains of error in refusing to strike from the complaint in Paragraph 7 thereof certain words alleging that the plaintiff signed a dissolution agreement drafted by the attorneys for his alleged co-partner, Lynch. This allegation follows a prior allegation in Paragraph 7 that Lynch made certain false representations to the plaintiff, made certain threats against the plaintiff and that as a result of these things the plaintiff was forced to surrender his rights in the partnership and sign the dissolution agreement. The defendants take the position that as the act done was a legal act that the method and manner of accomplishing it is immaterial and that, therefore, the act alleged could not be considered as a part of the alleged conspiracy. There is no question that when one has a right to do a certain thing that a threat to do this legal act cannot constitute duress, but in this case the allegations of the complaint are that various factors enter into the dissolution of the partnership, which was a part of the conspiracy to injure and damage the plaintiff and plaintiff has a right to prove all of the relevant matters in connection with the cause of action alleged.
The second exception complains of error in the refusal of the presiding Judge to require the plaintiff to set out the names of the customers: (1) of the Whiteway Service Station who became dissatisfied with the station as a result of the acts of the defendants; (2) by setting forth the names of the customers of Lee Kendrick, who became dissatisfied by reason of the alleged acts of the defendants; (3) by setting forth the names of the operators of the service stations upon whom the defendants, Ezelle and Lynch, called on certain dates. It will be seen that this exception embraces three distinct matters which should properly be set out in separate exceptions for it might be that the Court would require the names in the one instance to be furnished and in the other instance not to be furnished. As to the questions covered by Subsections 1 and 2 hereof, it would be impossible for the plaintiff, in all probability, to give the names of all of the customers who were dissatisfied if the dissatisfaction was as general as alleged. This would be evidentiary matter and it would not be proper to require the plaintiff to set forth these names in detail. As to Subsection 3, the names of the persons who were visited by Ezelle and Lynch are as well known to them, the defendants, as to the plaintiff and, therefore, there could be no reason for requiring the plaintiff to name these people under the circumstances.
Exception III complains of error in the failure of the Circuit Judge to require the plaintiff to strike out of his complaint the allegation that Ezelle and Lynch approached all of the service stations formerly supplied with products by the partnership and offered to sell kerosene and motor oils at prices substantially below the regular prices prevailing. The defendants may have had a right to sell to anyone their products at such prices as they saw fit, but if this was done in furtherance of a conspiracy to injure and damage the plaintiff the allegation would be pertinent and relevant on that issue.
Exception IV alleges error on the failure to strike out the allegations of Paragraph 13 which allege that the defendant Ezelle, one of the conspirators, made threats in an effort to intimidate and coerce the plaintiff and force him out of business. This allegation is certainly relevant if proven on the question of the alleged attempt of the defendants to conspire to injure and damage the plaintiff in his business.
Exception V alleges error on the failure of the Circuit Judge to require the plaintiff to make his complaint more definite and certain by alleging with whom the plaintiff had entered into contracts of lease and sale on the ground that said information was necessary for a proper defense of the action. The plaintiff cannot be required to give in detail all of his evidentiary matter in the pleadings and it was proper for the Circuit Judge to refuse to compel him to give these names.
Exception VI complains of error in that the presiding Judge refused to strike from the complaint the allegations of Paragraphs 14 and 15. These allegations constitute the heart of the complaint and if they are stricken the plaintiff is left with a mere shell of his cause of action. Even an act that is lawful can be done in an unlawful fashion and a definition of conspiracy has been given as the conspiring together to do an unlawful act to the detriment of another or the doing of a lawful act in an unlawful way to the detriment of another. These allegations, if proven, may be relevant and pertinent to the cause of action alleged in the complaint.
All of the matters referred to in the motion to strike and the motion to make more definite and certain will come under the purview of the Judge trying the case and he at that time can determine the competency and the relevancy of the evidence and whether the legal and probative effect of the same is sufficient to submit the cause to the jury, but those matters can be better disposed of at the trial of the case.
It is ordered that all exceptions be overruled and the judgment of the lower Court be affirmed.
NOTE: Let the complaint and the original grounds of motion be reported.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BONHAM, BAKER and FISHBURNE concur.