11 N.Y.S. 131 | N.Y. Sup. Ct. | 1890
The question here is whether the plaintiffs’ right of action was single and entire, or whether they had a separate and distinct cause of action for each bill of goods sold. The action is what would formerly have been called an “action on the case in the nature of conspiracy, ” and it is well settled that the damage to the plaintiffs, and not the conspiracy, is the gist of such an action. Tappan v. Powers, 2 Hall, 277; Jones v. Baker, 7 Cow. 445; Hutchins v. Hutchins, 7 Hill, 104; Lubricating Co. v. Everest, 30 Hun, 588; Verplanck v. Van Buren, 76 N. Y. 259. “An allegation of conspiracy,” as was said in Lubricating Co. v. Everest, “between the defendants to commit the act complained of is of no importance, so far as it respects the cause and ground of action. * * * If there be a failure to prove the combination, then the plaintiff is entitled to a verdict against either defendant upon whom an unlawful act is proved to the damage of the plaintiff.” In Verplanck v. Van Buren, supra, Folger, J., said that “in such action the evidence of a technical conspiracy is not essential. The damage is the cause of action, and the conspiracy mere matter of aggravation;” citing Skinner v. Gunton. 1
We think, too, that it was the intention of the parties to limit the settlement set up in the answer to the particular claim embraced in the then pending action. It will be observed that that action was against but one of the present defendants, and was simply for the conversion of certain specified goods, valued at upwards of $12,000. There was no formal charge of conspiracy, but the defendant was sought to be held because of his alleged connivance with the purchasers. The suit was settled for $4,000, in the defendant’s notes, which were received (according to the tenor of the instrument then signed by the plaintiffs) “in full settlement and discharge of all claims embraced in ” that action, and “of the cost thereof. ” It was held, in O'Beirne