92 Mich. 304 | Mich. | 1892
Defendants are manufacturers of machinery at Grand Eapids, as copartners under the name ■and style of Perkins & Co. December 10, 1888, defendants entered into a written contract with plaintiff, relating to the sale of a mitre-cutting machine and a dado head and other novelties, by the terms whereof Perkins &" Co. agree to originate and perfect the machines. It provides that the patents shall be taken out in the name of Willis J. Perkins, and the title thereto shall vest in him; that the privilege of manufacture shall vest in defendants, but that no royalty shall be paid by plaintiff, except as therein provided; that plaintiff agrees not to divulge or take advantage of any mechanical secrets that he may come in possession of while in communication with defendants of their employes or on the premises of defendants; that defendants will manufacture, or cause to be manufactured, a sufficient number of such machines,
The business was entered upon and conducted under this contract until November 17, 1890.
Plaintiff declares in an action on the case. The declaration sets out the contract; that, in accordance with its terms, plaintiff had entered upon it, and had built up a large and lucrative business under it, and had expended certain moneys in building it up; that he had performed its terms and conditions properly; that it was the duty of defendants to perform its terms and conditions; yet that defendants, disregarding their duties and obligations, under said contract, on November 17, 1890, contriving and maliciously intending to harm, injure, and prejudice the said plaintiff in his good name and credit, and to-harm, injure, and destroy his said business of selling said machines, and to take away and destroy his revenues and profits arising and accruing to said plaintiff from his said business, so as aforesaid carried on and continued under the name and style of Grand Eapids Machinery Company, and to take away and destroy the revenue and
To this declaration defendants pleaded the general issue.
A few observations as to the contract itself will make it unnecessary to discuss some of the allegations of error. The instrument cannot be construed as creating partnership relations. The machines were to be manufactured by defendants, and the price fixed by them. They were to sell them to plaintiff at a discount from those prices of 40 per cent. Plaintiff was to pay all expenses of sale
Several of the assignments of error relate to the declaration. Defendants make a classification of the several acts complained of into (a) acts constituting a breach of contract; (l) acts amounting to a trespass; and (c) acts which were slanderous; and insist that there is a misjoinder of actions. The acts complained of in
This is not a question as to whether a count in assumpsit, one in trespass, and one in case for slander may be joined in one declaration, but the question is-whether a series of wrongful acts, all aimed at a single-result and contributing to the injury complained of, te wit, the destruction of one’s business, his credit, and his
Nor is the question here whether a mere breach of contract can be sued in toft. This was more than a mere breach. The ordinary breach of contract is by an act of omission. It is true that the wrongful acts of defendants operated as a breach, but that was not so much by a refusal to perform some condition of the contract, but rather by taking it out of the power of
The present case is clearly within the rule of Rich v. Railroad Co., 87 N. Y. 382, cited by Mr. Cooley. After discussing that class of cases where there is a duty growing out of established relations, the court in that case say:
“ It may be granted that an omission to perform a contract obligation is never a tort, unless that omission is also an omission of a legal duty. But such legal duty may arise, not merely out of certain relations of trust and confidence, inherent in the nature of the contract itself, but may spring -from extraneous circumstances, not constituting elements of the contract as such, although connected with and dependent upon it, and born of that wider range of legal duty, which is due from every man to his fellow, to respect his rights of property and person, and refrain from invading them by force or fraud. It has been well said that the liability to make reparation for an injury rests not upon the consideration of any reciprocal obligation, but upon an original moral duty enjoined upon every person so to conduct himself or exercise his own rights as‘ not to injure another. Whatever its origin, such legal duty is uniformly reeognized, and has been constantly applied as the foundation of actions for Avrongs; and it rests upon and grows out of the relations which meuv bear to each other in the framework of organized society. It is, then, doubtless true that a mere contract obligation may establish no relation out of which a separate and specific legal duty arises, and yet extraneous circumstances and conditions in connection Avith it may establish such a relation as to make its performance a legal duty, and its omission a wrong to be redressed. The duty and the tort grow out of the entire range of facts of which the breach of the contract was but one.”
Respecting the allegations as to the sending out of circulars and other acts affecting plaintiff’s credit and business reputation, these acts were admissible as tending to show the intent and purpose of defendants, and as contributing to the destruction of plaintiff’s business. Injury to his credit and business reputation would naturally
Again, it was not necessary to allege that damages followed from each act of the series, or that each act was successful in effecting the particular purpose sought. A single act could not be excluded because it failed to establish the entire ease, but if it either contributed to the result, •or, though but an attempt, served to show the animus of the defendants, it was proper to allege it and to make proof of it. It is not the rule that in actions for slander to business special damages must be either alleged or proved. Words spoken or written, injurious to a person in his business, and false and malicious, are actionable per se, and special damages need not be proved. Haney Manfg. Co. v. Perkins, 78 Mich. 1; Weiss v. Whittemore, 28 Id. 366.
It is contended, too, that there was no evidence tending to show that Harford J. Perkins committed any one of the acts complained of. Many of the acts done were -committed in the firm name. The circulars and correspondence were all sent out in the firm name. The orders were canceled and the new orders substituted, and such substituted orders were filled by the firm. The business appropriated was afterwards carried on in the 'firm name and for the firm’s benefit. The point is fully covered by Haney Manfg. Co. v. Perkins, supra.
The court instructed the jury that in estimating plaintiff’s damages they should consider, in the first place, those damages that may be estimated by a money standard; for instance, the future profits to the plaintiff fox the business for such time as would elapse before the
“Where the party is to perform labor from which a profit is to spring as the direct result of work done at a contract price, and he is prevented from earning this profit by the wrongful act of the other party, the loss of this profit is a direct and natural result, which the law will presume to follow the breach of the contract.”
In Allis v. McLean, 48 Mich. 428, it is said that—
“In some cases profits are the best possible measure of damage, for the very reason that the loss is indisputable,*321 and the amount can be estimated with almost absolute certainty. The case of a contract for the delivery of grain, *or any other article which at all times finds a ready sale at a current market price, is an instance."
The present case comes clearly within these principles, and there was no error in the instruction.
Testimony was admitted showing that in consequence of defendants’ acts the postmaster refused to deliver to plaintiff his mail, and the railroad companies refused to deliver freight consigned to him. This testimony was objected to, for the reason that the declaration did not allege that plaintiff had suffered damage thereby. The declaration does allege that, by reason of the conduct of defendants, plaintiff’s business was interrupted, and he was prevented from prosecuting it.
As to whether plaintiff was himself in default, the court instructed the jury that, if plaintiff was in default, and had violated the contract, he could not recover, unless they found that such violation had been waived by defendants. That question is disposed of by the verdict.
It is unnecessary to discuss the other questions raised. Some points are made relative to the admission of certain testimony, which are not • without force, but plaintiff’s case, as set out in his declaration, was clearly made out by competent testimony. Defendants were given broad latitude in their proofs.
As to the absence of malicious intent, the court submitted that question to the jury in the most favorable light for defendants, and the verdict clearly indicates that the jury confined themselves to actual damages for a limited period.
We fail to discover any prejudicial error, and the judgment is affirmed.