15 S.E.2d 535 | Ga. Ct. App. | 1941
The court did not err in sustaining the general demurrer and in dismissing the action.
The suit was brought for actual damages for loss of income from the plaintiff's business and for punitive damages. To meet a special demurrer the plaintiff amended her petition by alleging that the title-retention contract held by the J. M. Kline Company contained, among others, the following provisions: "1. Title to said property shall remain in the said seller or its assigns until the entire purchase-price shall have been paid in full in cash and all the terms and conditions hereof fully complied with and performed by said purchaser. . . 4. Time is of the essence of the contract, and in the event the purchaser defaults on any payment, or fails to comply with any condition hereof, or a proceeding in bankruptcy, receivership, *149 or insolvency be instituted against the purchaser, or his property, or the seller deems the property in danger of misuse or confiscation, or if the property is removed or attempted to be removed from the county where the purchaser now resides, or to be otherwise disposed of, or if the purchaser shall sell or incumber or shall attempt to sell or incumber or hire out said property, the full amount unpaid hereunder shall become due and payable forthwith, and any payments hereunder thereafter shall be treated as payments on account of the full unpaid balance and not payment of any installment, and the acceptance thereof shall not waive the right to claim the whole, and the said seller or its assigns may take immediate possession of said property without demand or notice; and for this purpose seller may enter upon the premises where said property may be and remove same. At its option seller may make such disposition of said property as it may deem fit, and all payments hereunder shall be retained by seller or its assigns as liquidated damages for the use and possession of said property by purchaser, and not as a penalty. Or the seller may resell said property so taken, at public or private sale, without demand for performance and with or without any notice to the purchaser, with or without having the property at the place of sale, and upon such terms and in such manner as the seller may determine."
It was also alleged by the amendment that the defendants, Carroll, Landreth, and Mrs. Tuck, knew that the plaintiff was purchasing said equipment under title-retention contract and that they were familiar with the provisions thereof, and that they also knew that she was in arrears with her rent and they, with the defendant, Arthur H. Tuck, devised the scheme of procuring the aid and assistance of the defendants, McKinley, Schacter, and Mrs. Kline, to cooperate with them in accomplishing the ends of their conspiracy so devised, by having the landlord to demand possession of the space occupied by the "Marlene Beauty Shop" and then for the defendant, Mrs. Kline, to use this as an excuse for claiming that the property which she had sold under title-retention contract was in danger of confiscation and abuse and to retake possession thereof under the provisions of the contract hereinbefore set forth, and then themselves lease the space being occupied at that time by the "Marlene Beauty Shop," and procure the same equipment, so as to facilitate and accomplish the ends of their conspiracy and scheme. *150
To the petition as amended the defendants filed a general demurrer. The general demurrer was sustained and the action was dismissed. The exception here is to that judgment. 1. It appears from the allegations of the petition that the plaintiff was operating a beauty-shop at No. 522 Grand Theater Building, which she rented by the month from the Burdette Realty Company at $45 per month, and that the defendant, Lawrence McKinley, collected the rents on the Grand Theater Building for said realty company. She purchased the equipment used in her beauty shop from the J. M. Kline Company under a retention-of-title contract, and Mrs. Elizabeth Kline, the owner of this company, and Saul Schacter, the manager thereof, were named as two of the defendants. Beatrice Carroll, Alice Landreth, and Mrs. Arthur H. Tuck, employees of the plaintiff in her beauty shop, and Arthur H. Tuck, the husband of one of these employees, were the other defendants. The plaintiff's cause of action is based on an illegal conspiracy by the defendants to steal the plaintiff's business. The question for determination is whether or not the petition as amended set out a cause of action good against general demurrer.
A conspiracy, upon which a civil action may be based, is a combination between two or more persons, either to commit a tortious act, or to do some lawful act by methods constituting a tort. The conspiracy of itself does not constitute the cause of action, but the gist of the action, if one exists, is the tort committed against the plaintiff and the resulting damage. The petition fails to show that any of the employees of the plaintiff, or the husband of one of them, who are named as defendants, committed any unlawful or tortious act against the plaintiff. It is alleged by the plaintiff that these four defendants conspired and devised a scheme to steal her business and to obtain the same equipment and location in order that they might retain her customers, and that the defendants, McKinley, Kline, and Schacter, agreed to aid them in the commission of fraudulent and unlawful acts for the accomplishment of said conspiracy. The plaintiff was three months in arrears with her rent, and it was not unlawful for the defendant McKinley to refuse to accept her offer to pay part of the past-due rent and to *151 demand possession of the premises. In fact, she told him that if he wanted the space she was occupying, she would obtain another place and vacate as soon as possible. It is alleged that McKinley called Mrs. Kline and Saul Schacter and told them of his demands as to the possession of the beauty shop premises and advised them to get their equipment immediately. Did Mrs. Kline or her agent, Saul Schacter, commit a tort against the plaintiff in removing the equipment from the beauty shop and in reselling it? It is specifically provided in the retention-of-title contract, under which the plaintiff alleged she bought the equipment in her beauty shop, that time was the essence of the contract, and that in the event of default in payments or a failure to comply with any condition of the contract, or if the seller should deem the property in danger of misuse or confiscation, it should have the right to take immediate possession of the property without demand and without notice, and for that purpose was authorized to enter upon the premises and remove said property and thereafter to sell it at public or private sale without demand for performance and with or without notice to the purchaser, upon such terms and in such manner as the seller might determine. There is no allegation in the petition that the plaintiff was not in default with her payments under the retention-of-title contract, and it is argued by the defendants in error that it is inferable from the petition that she was in default in that respect. But even if she was not in default as to payments, the seller was authorized to repossess the property whenever it deemed the property in danger of misuse or confiscation. The plaintiff in her petition does not negative that the defendants were proceeding to repossess the property under the terms of the contract. The petition shows that she was in arrears with her rent, and that her landlord had notified the seller of the equipment of his demand for possession of the space occupied by the beauty shop. In these circumstances and under the terms of the retention-of-title contract, as alleged in the plaintiff's petition, the defendants, Mrs. Kline and Saul Schacter, committed no unlawful or tortious act against the plaintiff in repossessing the property and in selling it again.
The plaintiff in error contends that where an action is based on an alleged conspiracy, and it is alleged that the means employed to consummate the conspiracy were immoral and oppressive, it is not necessary to show any unlawful act, andBurrus Motor Co. v. *152 Patterson-Pope Motor Co.,
We think the present case is controlled adversely to the contentions of the plaintiff in error by the decision of this court in Vandhitch v. Alverson,
The allegations of the petition in respect to personal belongings of the plaintiff fail to set forth a cause of action. *153
2. The court did not err in sustaining the general demurrer and in dismissing the action.
Judgment affirmed. Stephens, P. J., and Felton, J., concur.