56 Ga. App. 342 | Ga. Ct. App. | 1937
Lead Opinion
Following is the opinion of the majority of the court, from which I dissent: In the first count of the petition recovery is sought for the wrongful act of the defendant in causing a breach of contract, and in the second count for wrongful interference with the making of a contract. It is clear that no contract is shown to have been consummated; and we think equally clear that there was no actionable interference as claimed in the second' count. The telegrams set out in the petition fail to show that the negotiations had proceeded to such a stage that it could be said that there was reasonable assurance that Mrs. Adamson would enter into the contract desired by the plaintiff as to the loan extension. Mrs. Adamson made it known that she would require some amortization to offset depreciation of the property, in addition to the terms proposed by the plaintiff, and the answer of the plaintiff did not constitute an acceptance, but plainly amounted to a counteroffer with no reference whatever to amortization. Upon receiving the final message from the plaintiff, Mrs. Adamson unmistakably indicated to the plaintiff that she was not yet ready to grant an extension of the loan on the terms proposed by the plaintiff; and
It is alleged in the petition that the amortization referred to by Mrs. Adamson “meant an amount of principal reduction equal to the depreciation of the propertjr, which is five per cent, annually of the amount of the loan, to wit, $387.50.” This, however, is a mere conclusion without any allegation of supporting facts, and is not admitted by the demurrer. It can not be said from the telegrams of Mrs. Adamson that she would not herself have required an amortization which would have been wholly unacceptable to the plaintiff. Nor can it be presumed that she would have been content with what the plaintiff concludes that Mrs. Adamson meant the amortization to be. It is inescapable that any agreement as to full terms was to come through the defendant, her duly constituted agent. The defendant did not make the desired extension, but instead caused a sale of the property under the foreclosure. Mrs. Adamson could have declined to make the proposed extension; and as the defendant was her authorized agent to act for her in this matter, it likewise had the right to decline to make such agreement, and especially is this true when it acted in a legitimate manner and within its rights as agent for Mrs. Adamson in so declining. "There is a clear distinction between inducing A to break his contract with X and inducing A not to enter into a contract with X. A man who induces another to bréale his contract induces him to do what is actionable, but no liability attaches to the refusal to make a contract. Consequently, where A is induced not to contract with X, the inducement, to be actionable, must be of an unlawful kind, as for example, acts of coercion and intimidation.” Anson on Contracts
Judgment affirmed».
Dissenting Opinion
dissenting. It appears from the allegations in the petition, whether or not there was a subsisting enforceable contract between the plaintiff and Mrs. Adamson for the extension of the loan, that Mrs. Adamson had offered to extend the loan on the conditions named, and without the exaction of any commission from the plaintiff to be paid for such extension; that Mrs. Adamson referred the plaintiff to the defendant as her agent to consummate the extension agreement on the terms indicated by Mrs. Adamson, which were accepted by the plaintiff, that the defendant refused to consummate the extension agreement on the terms indicated, and permitted the property to be sold under foreclosure; that the defendant did this because of the failure and refusal of the plaintiff to pay the defendant a commission, and for the defendant’s “own profit by way of commissions to be obtained in foreclosing and reselling the property;” that, but for these acts of the defendant, Mrs. Adamson would have entered into an extension agreement on the terms indicated, without any commission being paid by the plaintiff; that therefore the defendant wrongfully and to the plaintiff’s damage prevented Mrs. Adamson from carrying out her promise to renew the loan, which Mrs. Adamson, but for the defendant’s conduct, would have done.
It is well established that it is an actionable wrong for one, maliciously and without just cause, to induce one person to break a contract with another. Employing Printers Club v. Dr. Blosser Co., 122 Ga. 509 (50 S. E. 353, 69 L. R. A. 90, 106 Am. St. R. 137, 2 Ann. Cas. 694); Luke v. DuPree, 158 Ga. 590 (124 S. E. 13); Carpenter v. Williams, 41 Ga. App. 685 (2) (154 S. E. 298). Maliciously inducing a person to refrain from entering into a contract with another which he otherwise would have entered into, is generally held to be an actionable wrong. In 62 C. J. 1137, it is stated: “Even though no wrongful or unlawful means are employed to accomplish the result, inducing third persons to refrain from the formation of contracts, when done for solely malicious motives, has been commonly held to constitute a tort, the result being obtained in some jurisdictions, at least-as to particular kinds of prospective contracts, by virtue of statutory provisions. Malice, in this connection, is not to be understood in its popular sense of ill will against a person, but in its legal sense, as characterizing an unlawful act done intentionally with
It is not essential to the plaintiff’s right of action against the defendant in causing Mrs. Adamson to refrain from making the contract with the plaintiff, that, but for the defendant’s conduct, the contract would actually have been consummated. It is only necessary to show “a reasonable assurance, in view of all the circumstances,” that the plaintiff and Mrs. Adamson would have entered into the contract. 62 C. J. 1140. The plaintiff alleges her willingness to meet the terms imposed by Mrs. Adamson as a condition to the extension of the contract of loan, and the plaintiff’s acceptance of these terms. It may be assumed that there was no meeting of minds between the parties as to what amount should be paid as amortization, and therefore that no contract arose between the parties. It appears however, as alleged in the petition, that Mrs. Adamson, in her proposal to the plaintiff stating the terms on which Mrs. Adamson would renew the contract and extend the time of payment, had in mind or intended that the amortization should be an annual reduction of $387.50, and that the plaintiff accepted this proposal of Mrs. Adamson. As all the other terms of renewal were certain and had been agreed on by both parties, it seems reasonably certain that the parties would have entered into a contract under which the amount fixed as amortization would have been in the sum indicated. It therefore appears with reasonable assurance, that, but for the defendant’s alleged interference, the contract of extension between the plaintiff and Mrs. Adamson would have been entered into. It is immaterial that the defendant, in causing Mrs. Adamson to refrain from making the contemplated beneficial contract with the plaintiff by refusing to carry out Mrs. - Adamson’s agreement with the plaintiff, was acting as the authorized agent of Mrs. Adamson. While the defendant as Mrs. Adamson’s agent in the negotiations may have stood in a confidential relationship with Mrs. Adamson, and may have had the right to deal frankly with her, and even to advise her in her own interests not to enter into the contemplated contract with the plaintiff, the defendant can not shield itself behind such confidential relationship, and, on the ground of its right to deal frankly with Mrs. Adamson, the defendant’s principal, and to advise her not to make the contera
The tortious wrong complained of being the wrongful and malicious interference by the defendant in preventing Mrs. Adam-son from entering into the contract with the plaintiff, which Mrs. Adamson would have done but for the defendant’s conduct, in order to establish a right of action it is only necessary for the plaintiff to show that under the circumstances alleged the defendant’s conduct prevented the formation of the contract. The plaintiff’s damage is in being prevented from obtaining the contract of renewal. “The damage for which the recovery is had is not the loss of the value of the actual contracts by reason of their nonfulfilment, but the loss of advantages, either of property or of personal benefit, which, but for s.ueh interference, the plaintiff would have been able to attain or enjoy.” Walker v. Cronin, 107 Mass. 555, 565. The allegation in the petition, that “L. E. Mock was the officer or agent of defendant corporation who acted for it with its authority in all matters in which said corporation dealt with plaintiff respecting said loan and communications in reference thereto,” is, as against general demurrer, sufficient as an allegation that the alleged acts of the defendant complained of by the plaintiff were acts of the defendant by and through its agent, L. E. Mock. The following cases relied on by the defendant are clearly distinguishable: Southeastern Fair Asso. v. Jung, 24 Ga. App. 707 (102 S. E. 32); Atlanta Baseball Co. v. Lawrence, 38 Ga. App. 497 (144 S. E. 351); Murphey v. New South Brewery Co., 145 Ga. 561 (89 S. E. 704); Wikle v. L. & N. R. Co., 116 Ga. 309 (42 S. E. 525); Daniel v. Excelsior Auto Co., 31 Ga. App. 621 (121 S. E. 692). I am of the opinion that the petition as amended sets out a cause of action, and that the court erred in sustaining the demurrer.