Bohannon v. Wachovia Bank & Trust Co.
188 S.E. 390
N.C.
1936
Check Treatment
Clarkson, J.

(1) The plaintiff contends that the appeal from the order of examination is premature. We cannot .so hold under the facts and circumstances of this case.

In Ward v. Martin, 175 N. C., 287 (289-290), is the following: “A motion was made to dismiss this appeal on the ground that it is premature. There are decisions of this Court holding that a party cannot appeal from an order to appear before the clerk to be examined under oath concerning the matters set out in the pleadings. Pender v. Mallett, 122 N. C., 163; Holt v. Warehouse Co., 116 N. C., 480; Vann v. Lawrence, 111 N. C., 32. In the exercise of our discretion, as the point presented is of first importance here, we have concluded to deny the motion and to consider the appeal on its merits.” Chesson v. Bank, 190 N. C., 187. In certain cases the appeal is premature and will be dismissed. Johnson v. Mills Co., 196 N. C., 93; Brown v. Clement Co., 203 N. C., 508.

(2) The serious contention of defendants is that “The plaintiff’s application for order of examination not only fails to state a cause of action, but clearly shows that plaintiff cannot state a cause of action recognized by the law.” On this aspect we cannot hold with the defendants.

It is conceded by plaintiff that defendants are right if the application of plaintiff for the order of examination did not disclose a cause of action. The plaintiff contends that the following facts appear in the application: “(1) The plaintiff was a grandson of F. M. Bohannon. (2) F. M. Bohannon ‘had formed the fixed intention and settled purpose of providing for the plaintiff in the distribution of his estate.’ (3) Laura "Webb Bohannon and Maude Bohannon Trotman ‘conspired to deprive the plaintiff of a share of the estate of his grandfather, F. M. Bohannon.’ (4) The said defendants, ‘by false and fraudulent repre *684 sentations made to the said E. M. Bohannon, and by fraud practiced upon him and upon this plaintiff, prevailed upon the said E. M. Bohan-non to change a definite plan which he had made to leave to the plaintiff, either by will or a trust instrument, a large share in his estate.’ (5) The said E. M. Bohannon had formed the fixed intention and settled purpose of providing for the plaintiff and in the distribution of his estate, and would have carried out this intention and purpose but for the wrongful acts of Laura Webb Bohannon and Maude Bohannon Trotman.”

In Lewis v. Bloede, 202 Fed. Rep., 7 (15, 16, 17), (written for the Court by H. G. Connor, District Judge), is the following: “The recognition by the courts, both in England and in this country, of the right of action to the party injured by reason of the malicious and wrongful interference by third persons with contract rights is well settled. The principle is clearly stated by Justice Brewer in Angle v. Chicago, St. Paul, etc., Ry. Co., 151 U. S., 1; 13, 14 Sup. Ct., 240, 245 (38 L. Ed., 55), wherein he says: ‘It has been repeatedly held that, if one maliciously interfere in a contract between two parties, and induce one of them to break that contract, to the injury of the other, the party injured can maintain an action against the wrongdoer.’ This is but a recognition and application of the principle: ‘That whenever a man does an act which, in law and in fact, is a wrongful act, and such an act as may, as a natural and probable consequence of it, produce such an injury, an action on the case will lie.’ ... It having been settled that an action, as for a tort, would lie for a malicious — that is, wrongful— interference with the performance of an executory contract, the question naturally arose whether the principle extended to a case in which a third party, with like motive and without lawful excuse, by his interference prevented one from entering into, or making, a contract. . . . It is true that the right is more difficult to establish — requiring another link in the process of proof — than where the contract has been entered into. When the parties have entered into a contract, the terms' of which are fixed, the plaintiff is only required to show the malicious interference and the damage proximately resulting; whereas, if the ground of complaint is that he was about to make a contract, he is required to go further and show that he was not only ‘about to,’ but would, but for the malicious interference of defendants, have entered into the contract, etc.” Dulin v. Bailey, 172 N. C., 608.

In Mitchell v. Langley, 143 Ga., 827, 85 S. E., 1050, Lumpkin, J., at p. 1053, says: “Is it possible that where a will has been made, leaving a devise, a third person can fraudulent and maliciously cause the testator to revoke the devise, and thus cause a loss to the devisee, without any redress on the part of the latter? Or, if a father should make a *685 deed of gift to bis son, but before delivery another should falsely and maliciously represent that the son was a fugitive from justice, or was in penal servitude, or had died Avithout issue, and so cause the father to destroy the deed without delivery, could it be contended that the son would have no redress for the loss occasioned to him, because the deed had not been delivered and the title had not actually vested in him? And, likewise, if a member of a benefit society has caused one of his family to be named in a certificate as the beneficiary thereof, can it be successfully contended that a third party can, by malicious and fraudulent representations, cause the member to change the certificate, and thus cut off and divert to himself a benefit Avhich would have arisen to the beneficiary, with no redress to the latter, merely because the member had the power to change the beneficiary? Would not a man have the right to receive gifts or insurance, or the like, if they were in process of being perfected, and would have come to him but for malicious and fraudulent interference? A bare possibility may not be Avithin the reason for this position. But Avhere an intending donor, or testator, or member of a benefit society, has actually taken steps toward perfecting the gift, or devise, or benefit, so that if let alone the right of the donee, devisee, or beneficiary will cease to be inchoate and become perfect, we are of the opinion that there is such a status that an action will lie, if it is maliciously and fraudulently destroyed, and the benefit diverted to the person so acting, thus occasioning loss to the person who would have received it.” The above cases cite numerous authorities which are unnecessary to repeat.

If the plaintiff can recover against the defendant for the malicious and wrongful interference with the making of a contract, we see no good reason why he cannot recover for the malicious and wrongful interference with the making of a will. It is true that such a cause of action may be difficult to prove — but that does not touch the existence of the cause of action, but only its establishment.

(3) The ruling of the court as to .venue, we think correct. In the order of the court below is the following: “It is thereupon ordered that the order of the clerk in reference to change of venue be and it hereby is affirmed, and the motion for change of venue is denied, with leave, however, to the defendants to renew said motion after the complaint is filed.”

N. C. Code, 1935 (Michie), section 470, is as follows: “If the county designated for that purpose in the summons and complaint is not the proper one, the action may, however, be tried therein, unless the defendant, before the time of answering expires, demands in writing that the trial be conducted in the proper county, and the place of trial is thereupon changed by consent of parties, or by order of the court. The court may change the place of trial in the following cases: (1) When the *686 county designated for that purpose is not the proper one. (2) When the convenience of witnesses and the ends of justice would be promoted by the change. (3) "When the judge has, at any time, been interested as party or counsel.”

The procedure under C. S., secs. 900 and 901, is a substitute for the old bill of discovery. By proper averment in affidavits, as in the present case, it can be resorted to before the complaint is filed. Pender v. Mallett, 123 N. C., 57; Bailey v. Matthews, 156 N. C., 78; Ward v. Martin, 175 N. C., 287. The venue statute, supra, applies after the complaint is filed. The rights of defendants are preserved in the order of the court below.

C. S., sec. 465, is as follows: "All action upon official bonds or against executors and administrators in their official capacity must be instituted in the county where the bonds were given, if the principal or any surety on the bond is in the county; if not, then in the plaintiff’s county.” Montford v. Simmons, 193 N. C., 323.

The question of venue is not now before us. There is an old maxim of the law, "No wrong without a remedy.” The plaintiff,, under bis affidavits, has a right to “fish” in defendants’ pond — whether be catches anything is yet to be seen.

For the reasons given, the judgment of the court below is

Affirmed.

Stacy, C. J., and CONNOR, J., dissent.