Hawarden v. Youghiogheny & Lehigh Coal Co.
87 N.W. 472
Wis.
1901
Check Treatment
WiNSlow, J.

The first count of the complaint is claimed to state a cause of action at law to recover damages resulting from ■ an unlawful conspiracy, and the second count а cause of action in equity on behalf of a class to restrain the further execution of the conspiracy, and both counts are challenged by demurrer for insufficiency of facts.

1. The gist of the first count is that the plaintiff was a retail coal dealer in the city of Superior; that the defendants, “ the wholesalers,” own practically all the coal docks at Superior and Duluth, and that a retailer cannot carry on his business at Superior unless he can buy of the wholesalers freely and without discrimination; that the wholesalers entered intо a combination with the defendant retailers by which it was agreed that the wholesalers should sell coal to the defendant retailers, and to none others, for the purpose, аmong others, of forcing out of the retail trade all retailers not in the combination, and among others the plaintiff; that such agreement or conspiracy has been successful,'and as a result thereof the plaintiff’s business has been destroyed, to his damage. Do these facts constitute a cause of action at common law ? Wé think they do. It is undoubtedly true that, in the absence of any statute to the contrary, several persons' may combine for the purpose of increasing their *550business and making greater gains by any legitimate means, and if, аs the incidental result of that combination, others are driven out of business, there is no actionable wrong. It is also true that one person, or a number of persons, by agreement mаy refuse to sell goods to another, if the purpose of such refusal be simply to promote his or their own welfare. From ‍​‌​​‌‌​​‌‌​‌‌​‌​​‌‌‌‌‌​‌‌​​‌​‌‌‌​​‌​​‌​‌​‌‌‌‌‌​​‍these propositions it is argued that no actionable wrong is shown in the present case; that the main purpose of the agreement charged was the lawful purpose to increase their own gains by legitimate means, and hencе that the plaintiff is remediless, notwithstanding it is also charged that one purpose of the agreement was to drive the plaintiff out of business.

It may at once be admitted that this line of reаsoning has been adopted by some of the courts which have been called upon to deal with the subject. It has not, however, been adopted by this court; in fact in the very recent case of State ex rel. Durner v. Huegin, 110 Wis. 189, it was, in effect, repudiated. It is true that case was a criminal case, but it necessarily involved the question of civil conspiracies at common law, as wеll as criminal conspiracies, and to the very full discussion there given by Mr. Justice Mabshaul it seems that very little can profitably be added. It was there stated, in substance and effect, that persons have a right to combine together for the purpose of promoting their individual welfare in any legitimate way, but where the purpose of the organization is to inflict injury on another, and injury results, a'wrong is committed upon such other; and this is so notwithstanding such purpose, if formed and executed by an individual, would not be actionable. One person may, through maliciоus motives, attract to himself another’s customers, and thus ruin the business of such other without redress; but when a number of persons, acting wholly or in part from such malicious motives, combine togethеr, the injury to such other is actionable. “ Where the act is lawful *551for an individual, it can be tbe subject of conspiracy, when done in concert, ‍​‌​​‌‌​​‌‌​‌‌​‌​​‌‌‌‌‌​‌‌​​‌​‌‌‌​​‌​​‌​‌​‌‌‌‌‌​​‍only where there is a direct intention thаt injury shall result from it.”

These principles are decisive as to the first count in this complaint. The allegation is distinct and clear that one of the purposes and objects of this agrеement was to drive the plaintiff out of business. This was an ulterior and unlawful purpose, and constitutes malice in contemplation of law. Therefore, under the allegations of the сomplaint, it is clear that the combination here formed was formed for the malicious purpose of doing an injury to another, and that such injury has resulted, and hence that a cause of action at law for damages is stated.

The conclusion reached renders it unnecessary to consider the effect of sec. 1747<?, Stats. 1898, with regard to combinations ‍​‌​​‌‌​​‌‌​‌‌​‌​​‌‌‌‌‌​‌‌​​‌​‌‌‌​​‌​​‌​‌​‌‌‌‌‌​​‍in restrаint of trade or commerce.

2. In the second count the plaintiff attempts on behalf of a class of persons, namely, the retailers who were excluded from the combinаtion, to obtain equitable relief by way of a perpetual injunction restraining the continuance of the operations of the conspiracy. That courts of equity have jurisdiction to restrain such conspiracies when irreparable injury will result and legal remedies will prove inadequate or a multiplicity of suits be necessary, seems to be well settled. Beck v. Railway T. P. Union, 118 Mich. 497. That the conspiracy may be directed against a considerable number of persons as well as against one, cannot be doubted. We have, therefore, before us an unlаwful conspiracy directed against a large number of persons, which has. already resulted in driving out of business a considerable number of such persons, and which the defendants threaten to continue indefinitely against the whole class.

Plaintiff claims that this situation brings the case within that provision ‍​‌​​‌‌​​‌‌​‌‌​‌​​‌‌‌‌‌​‌‌​​‌​‌‌‌​​‌​​‌​‌​‌‌‌‌‌​​‍of the statute contained in sec. 2604, Stats. 1898, which declares, “ when the question is one of common *552or general interеst of many persons, . . . one or more may sue for the benefit of the whole.” The question as to the legality of this conspiracy is certainly one of common, and general interеst to all persons against whom it was directed and is being enforced. The complaint alleges that there are many of such persons, and we are unable to perceivе any fault in the plaintiff’s contention. It is to be noted that there are two cases named in the statutes referred to in which one may sue for all, viz.: (1) When the question is one of common or general interest of many persons, and (2) when the parties are very numerous, and it is impracticable to bring them all before the court. The latter cláss was under consideration in the cases of George v. Benjamin, 100 Wis. 622, and Hodges v. Nalty, 104 Wis. 464; hence what is said in those cases as to the number of persons which will be deemed “ very numerous ” is inapplicable here, because this case comes undеr the first subdivision, which only requires the presence of a question of common or general interest of many persons. These conditions are satisfied here, and we conclude that the second count states a good cause of action in equity by the plaintiff on behalf of himself and a class composed of all other retail coal dealers in Superior similarly situated.

Thus there are two good causes of action stated in the complaint, one at law and one in equity, both arising out of the same transaction. But here arisеs for consideration the general demurrer to the whole complaint on the ground that two causes of action have ‍​‌​​‌‌​​‌‌​‌‌​‌​​‌‌‌‌‌​‌‌​​‌​‌‌‌​​‌​​‌​‌​‌‌‌‌‌​​‍been improperly united. Though this demurrer was not specifically referred to in the order appealed from for the reason that the court held that but one good cause of action was stated, still it was, in effect, overruled, аs a necessary result of that order.

The statute provides that causes of action, in order to be united in one complaint, “ must affect all the parties to the action.” Stats. 1898, sec. 2647. It is clear that this limita*553tion would be violated if the two causes of action in this complaint are allowed to be united in one complaint. The first cause of action is а straight action at law for damages to the plaintiff alone. No one else has any interest in the judgment in that action, whatever it be. But the second cause of action is a сause of action in favor of a large number of persons, constituting a class represented by the plaintiff. Potentially all of the class are parties. They are invited to bеcome formal parties plaintiff, and presumably will accept the invitation. Thus the first cause of action affects but one party plaintiff, whereas the second causе of action affects numerous parties plaintiff. The doctrine is frequently stated that the several causes of action for or against a person must affect him in the same сapacity in order to make them capable of being joined. Pomeroy, Code Remedies (3d ed.), § 502.

These considerations are conclusive to the effect that the general demurrer to the whole complaint on the ground of improper joinder should have been sustained.

By the Court. — That part of the order overruling the demurrer to the first count of the complaint is affirmed, and that part sustaining the demurrer to the second count is reversed, and the action is remanded with directions to overrule the demurrer to the second count and sustain the separate demurrer to the entire complaint, and for further proceedings according to law.