Plaintiffs Carl and • J. ■ P, Stephenson-sued George W.- Barber, White ■ Dairy-Company-, a corporation, Barber Milk Company, a corporation, and Leland O. Wood for damages alleged to -have resulted from a' fraudulent and unlawful conspiracy of defendants to. acquire plaintiffs’, milk and dairy business’, including -customers and good-, will; without- any intention of -páyirig■for it. - Barber” was - president- and the 'alter ego of the’two corporate defendants,owning most of-the-stock, with members of his" family'’owning""tire"rest, and rWopd was plant; superintendent of ’White Dairy-before ”..the ’ events averred... ' Plaintiffs’’ business was located in Bessemer’ and was known’as Hollywood Dairies and the Barber businesses., .were , in, Birmingham.
From a -judgment on verdict all defendants' ‘have "appealed.' The rulings ’ of - thbtrial, court challenged separately’’as ’ error-are’:’ (1)Overruling ’ demurrers ’to”, the complaint; (2) refusal of the affirmative-charge • and. .other special charges requested by the defendants-.; and (3) overruling-■the’lmotión for a--new trial. ’We will! discuss these propositions in order.
’.’ The case went'!to''t’hé. jury on Count’2 p.f the’complaint as last amended; the material' ’.allegations o,f which will be. reported, with .the case. The, demurrers .pertinent ’.to consider .took, the .point, that.-the .complaint .failed .to state- a cause of action, r. Stripped .of its- prolixity,, its- essential- allegations charged-the-defendants with fraudulently .conspiring to obtain-.the plaintiffs’ business and the good 'will .-of its customers 'without 'paying for it’ and !with ho. inténtion to pay for! it. and: the execution .to full ■ arid final -. accomplishment" of -■ that ’’unlawful scheme’. ’ Such ■ conduct was ’ • actionable and-' if- proven would warrant ’a’ verdict for’ the' plaintiffs.'- ’
A civil'conspiracy is a-combina-tion between two or more- persons to-accomplish by epiicert -an unlawful purpose or to accomplish a purpose not in itself unlawr. ful by unlawful means. Bankers Fire & Marine Ins. Co. v. Sloss,
Following also is an-approved -definition;A corispifacy is defined as the combina-' tion of ’ tWo ■ or nibre • persons--to do • (a)" something that is' unlawful, - oppressive, or immoral; or (b) something that is not unlawful, oppressive, or immoral, by unlawful,'oppressive, or immoral means; -or (c)’ ■something that is unlawful; • oppressive, or' immoral; -by unlawful, oppressive, or immoral -means; 1 Eddy on- Combinations, § 171; Horton v. Johnson,
It is clear the complaint • was brought within the terms of these definitions and therefore was not subject to the -asserted ■demurrers.
Appellants argue that the/fraud ■counted on related hot to any false' rep-' resentation of a past or existing fact, but to future; occurrences and therefore came within the. general .rule. that such ’ rcp’re•sentations are regarded as merely promis.so.ry and' are not actionable. 37 C.J.S., Fraud, § 11, p. 231; Hawkins v. People’s Trust & Sav. Bank,
Of like import is the statement of the pertinent rule by our late Chief Justice Gardner on the kindred doctrine of rescission in Snell National Bank v. Janney,
-... “It is-well established in this juris- - diction, that while a failure to fulfil a mere promise or undertaking — sbmething to be done in the future — alone.’ ,. will not .authorize a rescission on the ground of fraud, yet if -the promise is made with no intention at the time to ■ .perform, it, that-constitutes fraud jus- , tifyingi: a-resciss'iom” ..
Many other Alabama cases have' approved the-principle. ..Following are;some: Shepherd v. Kendrick,
True,, as argued for. appellants, it is generally held that an action for conspiring with another to induce the latter to.break his contract cannot be maintained, the remedy being to sue on it. Erswell
v.
Ford,
But that is not this case. The allegations o.f the-.compiaint set forth a fraudulent conspiracy between all the defendants, to acquire .plaintiffs’ business without paying. .for. it. and having no intention to pay for it and.-by false representations of Woo.d .and other .conduct pf all- defendants conducing.- to- attain -that, result. Such conduct ,.was -actionable. -. The count goes to show, the conspirators .¡were-not in-the exercise of their just rights, but were guilty pf a wrongful .act with injury proximately resulting therefrom. The law- is that ‘,‘wherp there is a conspiracy to act to such wrongful .end,
.an element of illegality
essential to such scheme to combine, and injure renders the enterprise as executed, or sought to be executed, illegal; that the test of what is lawful for an individual to do is not.always the true test of what is lawful for a combination of individuals conspiring to a. designated- end; that there are
things and results lawful for an individual to do'or accomplish, which are not lawful for a combination of individuals conspiring and acting to a common end. * * * ” Bankers’ Fire & Marine Ins. Co. v. Sloss,
We entertain the view, therefore, the count stated a cause of action for civil conspiracy against defendants.
The next question to be considered is whether defendants were entitled to the affirmative charge. Defendant Wood, aside from the issue of the conspiracy, claims ,to have been entitled to the affirmative charge on another theory which we will discuss.'later. It is contended for all the defendants that there was no proof that they had entered into any sort of conspiracy prior to October 3, 1947, the onset date of the alleged combination. Concededly there was no positive evidence to that effect, but a conspiracy need not alone be established by that character of evidence. Indeed, seldom is such the case. It is only by looking to the conduct of the alleged conspirators during the progress of the conspiracy and the end result achieved that usually such a fact is established. And to that end it is proper to consider evidence extending over a' considerable period, both before and after the date of the alleged combination and even after its termination, just so the proof has a tendency to establish the ultimate fact. Scheele v. Union Loan & Finance Co.,
In this jurisdiction, unlike in some others, there heed be only a scintilla of
It would serve no useful purpose to laden the opinion with a detailed recital of the evidence, which is recorded here in some three hundred transcript pages. It is enough to say that from the relationship of the defendants; the fact that Barber wanted to enlarge his business in the Bessemer -area; that it was common knowledge Hollywood Dairies was for sale; the negotiation for the sale by Wood, a longtime .trusted employee of Barber, who had advanced himself from a day laborer’s position when he entered the employ as a boy of seventeen years to- the position of plant superintendent, his age at that latter date being thirty-three years; that Wood represented to the plaintiffs that he was not purchasing for Barber or for anyone else, but for himself alone; that when he took over the business it was grossing about $12,000 per month and when he abandoned it it had increased to about $17,000 per month; but meanwhile he had permitted the defendant companies to take over his business, customers, and the customers’ good will; all this without notifying the persons most interested, the plaintiffs, and finally abandoning the whole thing and returning to work for Barber. This and other items of evidence in our view would, under the scintilla rule, justify refusal of the affirmative charge on the issue vel non of a civil combination between the defendants to take. over for Barber and companies the plaintiffs’ business without paying for it.
The following cases bear analogy and are somewhat sustentive: Falstaff Brewing Corp. v. Iowa Fruit & Produce Co., 8 Cir.,
The foregoing conclusion also disposes of the contention of defendant Wood that he was entitled to the affirmative charge on his special defense of his release in bankruptcy. The fact of a conspiracy having been a question for the jury to decide on the conflicting evidence made it proper to refuse the affirmative charge on this theory. A discharge in bankruptcy does not release a debtor from liability for fraud such as for obtaining money or property by false pretense or false representation and, of course, the rule would obtain whether or not the fraud was personal to the defendant or was committed by him in concert with others. Gerald v. M. C. Kiser Co.,
There was likewise no error in refusal of charges 3 and N. Other reasons aside, they were fully covered in the court’s oral charge.
But the conclusion that the case was properly submitted to the jury on the conflicting evidence by no means leads to the result that the ruling denying the motion for a new trial should be sustained, for this court, after indulging all reasonable intendments in favor of the ruling below, concludes the verdict was unjust. Koonce v. Craft,
We think the overwhelming weight of the evidence was against the verdict. The reasonable probabilities are against the idea of a conspiracy. At most there was but a scintilla, “a mere gleam,” to sustain
“We are not unmindful of the rtiles by which this court is governed in the determination of questions of this char- ' acter. The trial judge, who-hears the • witnesses,- and- sees their demeanor on the stand, has á better opportunity than . we can have to judge 'of- the weight'1 '' and credibility of oral testimony, and : 'on'.appeal great respect is paid to his : judgment. But this court has not renounced its duty nor neglected its power to revise the verdicts, of juries and . the conclusions of trial judges on ques- i ..tions of fact, where; in-our opinion,', .¡.after' making all -proper ■ allowances ; - and indulging all reasonable intend- ,- ;ments in favor of the court below, we . ■ .reach a clear conclusion that the find- ... ing and judgment are wrong., *. * , ” . We ¡ are clear .to .that conclusion in. i .this case,.and the.'judgment will be re"’"Versed, in order that there may be a ” new’ trial,’ if the", parties,so desire.’1, ‘ '.
'
Reversed and remanded.