141 Wis. 332 | Wis. | 1910
Lead Opinion
Plaintiff assures us in advance that his attempt is to state a cause of action in tort. Examining the complaint
But the complaint alleges that these' acts, lawful in themselves, were done maliciously — that is, with the express purpose of causing plaintiff damage — and therefore liability results. Very little aid is given by either counsel on this essential question whether a lawful act becomes a tort by reason of malice or intent to injure. Upon this question there is a sharp conflict of authority throughout the courts of the country. The principle is asserted by perhaps the majority of those authorities “that malicious motives make a bad case worse, but they cannot make that wrong which in its own essence is lawful.” Dawson v. Kemper, 32 Weekly Law Bull. 15; Jenkins v. Fowler, 24 Pa. St. 308. A copious collection of authorities on both sides will be found in the note to Letts v. Kessler, 40 L. R. A. 117. However, that subject was pre-■sentedto this court in Metzger v. Hochrein, 107 Wis. 107, 83 N. W. 308, under the aspect of a “spite fence” impairing plaintiff’s enjoyment of his residence property. The conflictr ing authorities were carefully considered, and from that conflict this court allied itself with those-holding that mere malice or motive to injure could not impose'liability for a lawful act.
2. The conclusion reached in response to plaintiff’s own-construction of his complaint is, however, not conclusive. A demurrer challenges the sufficiency of the complaint to state-any cause of action, and must not be sustained in face of one-which does by liberal construction state facts from which any liability results, although not for some or all of the damages sought to be recovered. Bieri v. Fonger, 139 Wis. 150, 120 N. W. 862. From the present .complaint it clearly appears that defendant was under a contractual duty to the plaintiff none the less because such duty had been declared and defined by the judgment of a court. That contract required defendant to convey to the plaintiff certain land upon payment of certain money within a defined time. It imposed upon the plaintiff a duty to the defendant to make such payment or at least tender to him personally, for the conveyance was to be cotemporaneous, and such eotemporaneousness was doubtless necessary to the raising of the money to be paid. From a contract imposing such duty on the plaintiff there resulted by necessary implication the agreement on defendant’s part to do no act which would render such payment or tender impossible. This upon the general principle that he who by mutual contract confers on another a right or imposes a duty impliedly agrees not to defeat that right or make impossible the performance of that duty by any affirmative acts of his own. Manning v. Galland-Henning P. M. D. Mfg. Co., ante, p. 199, 124 N. W. 291; Eliot Nat. Bank v. Beal, 141 Mass. 566, 569, 6 N. E. 742. By this complaint it is alleged that the acts of
It is contended by respondent that even wilful evasion by defendant of payment or tender could not make the damages alleged unavoidable, for the reasonThat plaintiff might have tendered directly to the attorney of record in the suit adjudging these contract duties. It does not expressly appear that there was such an attorney accessible to plaintiff; but, apart from that consideration, it might well develop' by proof to be offered in support of this complaint that the inability of the attorney to respond to such tender by the delivery of a conveyance rendered that method practically inefficient to protect plaintiff’s rights by reason of the necessity of a conveyance of the property cotemporaneously with the payment to enable security for money needing to be borrowed in order to make legal tender. We do not in this connection decide, however, that the general authority of an attorney of record, which is held in some cases to extend to the collection of a debt, and by statute extends to the release of a mere money judgment (sec. 2908, Stats. 1898; Flanders v. Sherman, 18 Wis. 575), also extends .to the acceptance or refusal of a tender or payment under such a judgment as this. Again, it is suggested, though not argued, that plaintiff might'have paid the money into court and fixed his rights. No statute or authority is cited to
It is also suggested that plaintiff, instead of suffering the loss of his bargain and alleged consequent damage of some $9,000, might have applied to the court to prescribe some means of payment and tender irrespective of defendant’s conduct. We have no doubt that when defendant -breached his contract a court might, upon a showing of such fact, either on the foot of the existing judgment or in a new suit in equity, have protected plaintiff against the forfeiture, and prescribed some equivalent method for making payment of the purchase price; but the facts upon which to base such an application could not, under the circumstances- of this complaint, affirmatively appear until the period for payment expired, and although the complaint alleges that plaintiff had & period of some six or seven days within which the full performance of the judgment on both sides might have saved him from the alleged loss of his bargain, it is a question of fact whether it was then possible to seek and obtain relief from a court so as to avert that loss. In any event, however, the breach of the contract, when completed, gave rise to a right of action for at least nominal damages, and it is apparent that, even if plaintiff might have avoided the larger damages by some court procedure, he could not take that court procedure without expense ; so that he must suffer some actual damages in the effort to avoid still more. Of course we do not decide as a matter of law that the lost profits of plaintiff’s alleged resale of the land were themselves proper measure of the damages recover
By the Gourt. — Order sustaining the demurrer is reversed, •and cause remanded for further proceedings according to law.
Dissenting Opinion
(dissenting). The complaint shows that on February 23, 1906, in a suit for strict foreclosure, a decree ■nisi was given and rendered whereby if the plaintiff herein, ■defendant in the foreclosure suit, paid to the defendant herein ■and to defendant’s wife, plaintiffs in the foreclosure suit, within six months from notice of entry of said decree, $2,000, the plaintiffs in the foreclosure suit should be required to deed a tract of land therein described to this plaintiff, but in case this plaintiff failed to pay said sum within said time he should convey said tract to the defendant herein. This decree with reference to another piece of property “provided further that if the defendant Dr. Oscar Loehr pays to the plaintiffs the sum of $56,664.42 in addition to the $2,000 aforesaid within ■six months from the notice of entry of judgment, together with the costs and disbursements of this action, with interest on ■above amounts at the rate of five per cent, per annum to the time of payment, then and in that case all the conditions of said land contract shall he deemed fulfilled, but in default of such payments within said time this judgment shall be abso>-lute.” This foreclosure decree also contained a provision divesting Dr. Loehr of all right, title, and interest in and to the property affected by the above-quoted paragraphs except as re
The pleader intended to state a cause of action in tort, and he has stoutly contended before this could that the complaint states such cause of action. But the majority of this court holds that the complaint shows a contract obligation resting upon Dickson and a breach thereof by the latter. I concur in the view that the complaint states no cause of action in tort, for it shows no breach by Dickson of any duty imposed upon him by law. I think the original contract stipulations which were the subject of the foreclosure suit are merged in the decree there given. No doubt a judgment is for certain purposes considered a contract. But this is a legal fiction referable to certain remedies thereon or necessary to meet the requirements of statutes or constitutions which might otherwise include the contract until judgment was entered thereon and fail to cover it thereafter. Bishop, Contracts, §§ 141, 566; 1 Black, Judgments, §§ 7-11; 17 Am. & Eng. Ency. of Law (2d ed.) 763, 764, and cases cited.
If this decree creates, expressly or by implication, a contract obligation of the kind suggested resting upon Dickson, then every decree for specific performance or similar relief creates such contract obligation and may be the basis of an action at law. On the other hand, if we consider the original
Concurrence Opinion
I concur in the foregoing dissenting opinion ■of Mr. Justice Timlin.
