50 Ga. App. 801 | Ga. Ct. App. | 1935
Patterson-Pope Motor Company brought an action for damages against Ford Motor Company, Burrus Motor Company, Perry Burrus, and J. II. Wood Jr. By amendment the plaintiff dismissed its action against Perry Burrus and J. H. Wood Jr., and the case proceeded against the other two defendants. The jury returned a verdict against Ford Motor Company alone, thus' finding in favor of Burrus Motor Company. Patterson-Pope Motor Company filed its motion for a new trial, the motion was sustained, and Burrus Motor Company excepted. Error is assigned upon the ground that the evidence demanded a verdict in favor of Burrus Motor Company. The exception is sought to be justified, first, because the evidence fails to connect Burrus Motor Company with the alleged conspiracy; and second, for the reason that even though the evidence does connect the Burrus Motor Company with said conspiracy, no legal wrong was committed by the defendants, or either of them, for which an action would lie. For the purposes of this decision, the following is a sufficient statement of the case made in the plaintiff’s petition:
J. H. Wood Jr. was manager of the Atlanta Branch of the Ford Motor Company, “and his duties . . required him to . . make contracts appointing authorized Ford dealers, and to recommend the termination of contracts with dealers. Burrus Motor Company was the authorized dealer of Ford products throughout Muscogee County, Georgia, with its principal office . . in Columbus, Georgia.” Perry Burrus was the “vice-president of said Burrus Motor Company, and was actually engaged in the management and conduct of its affairs.” From September 1, 1928, to September 1, 1930, “petitioner was an active competitor of Burrus Motor Company, . . maintaining its office in Columbus, Muscogee
Pursuant to said conspiracy, it was further agreed between defendants that, “as an ostensible excuse for cancelling said contract,
“Petitioner in good faith conformed to all the common requirements of . . Ford Company, but, pursuant to said conspiracy . . to destroy petitioner’s business, defendant J. H. Wood Jr., some time in 1931, . . falsely and maliciously informed the home office of Ford Motor Company that petitioner was . . practically insolvent and altogether undesirable as a dealer of Ford products. Pursuant to said conspiracy . . Burrus Motor Company, in 1931, . . frequently stated and caused to be circulated through the said Perry Burrus the false, malicious, untrue, and defamatory statement -that . . Ford Motor Company was dissatisfied with petitioner as an authorized dealer, and that petitioner was in financial difficulty and defendant Ford Company would soon cancel its dealer’s contract with petitioner.” Learning of said rumors and reports on or about August 6, 1931, petitioner, through its representatives Patterson and Pope, asked J. H. Wood Jr. if there was an impending concellation of its said contract, stating that petitioner had an opportunity to acquire a Chevrolet agency in Columbus, and said Wood “falsely informed petitioner’s representatives aforesaid that he knew .of no reason for or the probability of a cancellation of said contract.” Said statement of said Wood was false, because he had already recommended the cancellation of said contract for the reasons aforesaid, and “accordingly, on August 8, 1931, petitioner was informed by a representative of defendant Ford Company, one DeForrester, that petitioner’s contract as a dealer with Ford Motor Company had been cancelled on August 8, 1931, upon the recommendation of defendant Wood Jr., and for the purported reason that petitioner was financially weak and practically insolvent. Plaintiff requested a reinstatement of said contract with . . Ford Company, and the latter’s representative, W. 0. Cowling, assured petitioner . . that said contract would be reinstated if, after an investigation by . . Ford Company, the purported reason for a cancellation thereof did not in fact exist. Pursuant thereto . . Ford Company sent its investigator, one Eagan, to Columbus, Georgia, on or about August 22, 1931, and the said Eagan made an investigation into petitioner’s financial condition, and . . made his report to . . Ford Company. The purported reason for the cancellation of said contract was un
For the purposes of this decision, we deem it only necessary to refer to two provisions of the “sales agreement” entered into between Patterson-Pope Motor Company and Ford Motor Company on September 3, 1930. Paragraph 9(e) reads: “This agreement may be terminated at any time at the will of either party by written notice to the other party given either by registered mail or personal delivery, and such termination shall also operate to cancel all orders therefor received by company and not delivered at date of receipt of said notice.” Section 9(f) provides that “this agreement is not assignable by dealer without written assent of company, and no
In the summer of 1931 the plaintiff heard a rumor in Columbus that its contract was to be canceled, and took up.the matter with branch-manager Wood in August. Wood denied having any knowledge that the contract would be canceled. Almost immediately after this conference with Wood, plaintiff was notified that its Ford agency had been canceled in accordance with instructions from the home office of Ford Motor Company. When plaintiff’s representatives went to Dearborn to contact the sales department of Ford Motor Company, the latter’s representative, DeForrest, said that the cancelation was made “purely at the request of Mr. Wood,” and that Wood had reported to the home office that plaintiff was in financial trouble. Plaintiff’s executives then saw Mr. Cowling, Ford Motor Company’s sales executive, and Cowling gave them to understand that an investigation would be made as to the cancelation, and if the facts on which it was based were not true, the cancelation would be rescinded. In the meantime the letter of cancelation, dated August 3, prior to the interview with Wood, reached plaintiff at Columbus. Ford Motor Company instituted an investigation of plaintiff. In the meantime plaintiff’s representative told Ford Motor Company’s representative that plaintiff had been offered a Chevrolet agency, and was advised that plaintiff would be reinstated, and not to accept the Chevrolet agency. Thereupon plaintiff declined the proffered agency. On October 8 a final order of cancelation was sent to plaintiff, and the agency unqualifiedly revoked.
We come now to some of the testimony which bears more directly upon the question of the alleged conspiracy. B. A. Ansley swore that during the time he was selling automobiles for Burrus Motor Company in the years 1929 and 1930, he accompanied Perry Burrus to Atlanta to see Mr. Wood, the manager of the Atlanta
The brief of evidence proceeds: “Q. What conclusion did Mr. Burrus come to? A. Mr. Burrus agreed to it. . . Mr. Burrus says: 'Well, if you are sure you can do that, you can carry it through that way, you can do it. . .’ I heard him tell his father what took place. He told his father the conversation with Mr. Wood, and Mr. Wood and them agreed to make Patterson and Pope Ford dealers, and then they could break them. . . Mr. Burrus got up at that meeting and told the salesmen as to Mr. Wood’s conversation the day before, what we intended to do; we could use that as a sales argument, they were going to make Patter - son-Pope authorized dealers. He told us they were going to be made authorized dealers, and they had been giving us trouble, and they would probably give us more for a short time, but they were going to make them dealers and control them, it would be a short time before they would be broke, they were going to break them. Now, after that, I heard Perry Burrus in talking about selling a car, and about how long they were going to be in business, and how short a time Patterson-Pope was going to be in business. . . I heard him tell Captain Littell . . that their finances would not stand it in the first place, and they would not be in business over six or eight months. He said Ford would probably have to keep them a short time, and then he would be the only dealer here. I don’t remember when that conversation was, but it was in 1930 sometime.” On1 cross-examination Ansley swore: “I testified a few
C. B. Gullatt Jr. testified, that in 1930 and 1931 he was general manager of the Gullatt Motor Company, an authorized Ford dealer in Phenix City, Alabama, across the river from Columbus; that he too objected to plaintiff’s selling Ford cars; and that on a certain occasion when he and Perry Burrus went to see Mr. Wood, Wood told them that “it didn’t look like they could stop them, but they might make them authorized dealers and let them buy a large stock of parts and equipment, and pay out a big bunch of money, and then stop them—that was the only way to handle it.”
The foregoing statement is by no means a complete resumé of the evidence in the case. It is merely designed to indicate the case made by the plaintiff in the court below. Much of the testimony adduced in behalf of the plaintiff, especially that relating to the alleged conspiracy, is contradicted by witnesses testifying for the defendants. However, we are of the opinion that there was evidence in the case from which a jury might conclude that there was a conspiracy as charged by the plaintiff. True, according to the evidence adduced in behalf of-the plaintiff, Ford Motor Company originated and proposed the scheme of making plaintiff an authorized Ford dealer and breaking it, but it is also true that it might be concluded from said evidence that the insistence of Burrus Motor Company that something be done to stop plaintiff from selling Ford cars caused Ford Motor Company to propose said scheme, and that Burrus Motor Company promptly acceded to said scheme and approved of it, and that it was carried out to the injury and damage of plaintiff. “To show conspiracy it is not necessary to prove that the parties met together or entered into any specific or formal agreement, or that by words or writing they formulated their unlawful objects. Proof that two or more persons, either positively or tacitly, come to an understanding that they will accomplish an unlawful design, or a lawful design unlawfully, is sufficient.” Woodruff v. Hughes, 2 Ga. App. 361 (3) (58 S. E. 551). “All persons who aid or advise in the commission of a fraudulent act by another, or who approve of it after it is done, for their benefit, are liable in the same manner as they would be
But it is strenuously insisted, that, even though the conspiracy existed, no actionable wrong was committed—that “since Eord had the right by its express terms to cancel the contract, the motive of the cancellation, however wicked or malicious, can afford no basis of relief to Patterson & Pope.” One of the principal decisions cited to sustain this contention is Camp v. Ætna Insurance Co., 170 Ga. 46 (152 S. E. 41, 68 A. L. R. 1166). In that case the Supreme Court held that an insurance companj'' might cancel a policy of fire-insurance regardless of the motive for such cancelation. In the Camp case the contract was entered into in good faith, and the cancelation resulted from causes that arose subsequently to its execution; while, according to some of the evidence in the instant case, the very beginning of the final wrong was the alleged conspiracy, the carrying out.of which resulted in the ultimate, intended damage and injury to the'plaintiff, and the contract with the cancelation clause therein was merely a convenient and effective means of accomplishing the results designed by the conspiracy. The Gamp case, and other similar cases relied on by plaintiff in error, are distinguishable upon their facts from the case at bar, and are not, in our opinion, controlling here. We see no force in the contention that, having entered into a contract terminable at will, the' plaintiff suffered no more damage than it would have incurred in the absence of the alleged conspiracy, and therefore that there was no actionable wrong. This theory appears to
In discussing this case we fully realize that we have considered the evidence most favorably to the plaintiff, and that much of that evidence was directly contradicted. • We have not intended to express any opinion as to which evidence is most credible, or as to what conclusion the jury should have reached as to any feature of the ease. What has been said about evidence was solely with the view of supporting our conclusion that the verdict in favor of Burrus Motor Company was not demanded by the evidence, and consequently that the first grant of a new trial was not error.
Judgment affirmed.