181 A. 583 | Pa. | 1935
Plaintiff sued1 for damages resulting from alleged conspiracy. He contended that defendants conspired and executed their conspiracy unlawfully to injure him by reducing his income and impairing his credit and capacity to do business. The verdict and judgment were against two of the defendants, H. David Rosenblum and Samuel W. Epstein, now the appellants.
Conspiracy may be proved by direct or by circumstantial evidence. As there was no direct evidence of the agreement, the circumstances were relied on. In *105 such case, before circumstantial evidence may be submitted to the jury, the court must be satisfied that it is sufficient to prove the agreement and the damage, for without damage the conspiracy is not actionable. The testimony covered transactions and business relations extending over a period of ten or twelve years, during more than half of which the relations of the parties were amicable.
The learned trial judge very frankly states that he was in doubt whether the evidence was sufficient to be submitted to the jury, and that, later, he "had difficulty in reaching a conclusion" that defendants' motion for judgment n. o. v. should be refused. He instructed the jury: "It is therefore for you to determine whether or not there is sufficient evidence to sustain the action of conspiracy against [the three defendants] or against any of them." The instruction was wrong. On this record it was not the duty of the jury to determine whether the evidence was sufficient.
In Ballentine v. Cummings,
It is unnecessary to extend this opinion by describing the various overt acts relied on by the plaintiff scattered throughout the long record. Beginning soon after 1920 plaintiff and defendants, as tenants in common, from time to time bought real estate, the defendants supplying plaintiff with the necessary funds to pay his share, the fractional ownership depending on the number of persons joining in the respective purchases. Some properties so acquired were sold at a profit; occasionally there was loss; some were let to tenants. The defendants (except Epstein who was employed by the firm) were grocers, trading as Nathan Rosenblum Company; as they held the larger undivided interests in the real estate purchased, and perhaps also because they had the clerical force and equipment necessary, they kept the accounts, paid the taxes, and, in large measure, managed the properties, at least dividing that work with the plaintiff. About 1925, differences arose between the parties resulting from defendants' reluctance to continue joining in the renewal of plaintiff's notes. Later they notified him that they would no longer continue to endorse or guarantee his notes as they had been doing. They proposed an arrangement for the installment reduction of his indebtedness to them over a specified period. He declined to comply with their request, and contended that he and they were partners in these transactions and that they had agreed to carry him as will be more fully stated hereafter. Defendants denied both claims. Apparently the differences increased, for in 1930 they obtained judgments against him on his notes; and further to determine their tenancy in common, one of the defendants brought suits in partition against his co-tenants, of whom the present plaintiff-appellee was one. He then filed petitions to open the judgments against him, and to stay the executions (cf. Long v. *107
Lebanon Nat. Bank,
In the trial of this conspiracy action he was, however, permitted to offer testimony of the same alleged agreement, and that judgments were entered on the notes and executions issued; this evidence was put in to afford a basis for a finding by the jury that defendants had agreed to injure plaintiff, apparently by obtaining judgments against him and issuing executions, and had successfully carried out their plan. The evidence was objected to on the ground that it had been judicially determined in the litigation referred to that the contract alleged did not exist, that the evidence was irrelevant, and that the judgments were valid and the right to issue execution established. The plaintiff contended that those matters had not been adjudicated. We think it was determined in the former action2 that the alleged contract did not exist (Hochman v. Mortgage Finance Corp.,
If, instead of several joint judgment creditors, there had been but one judgment creditor who had issued execution, the judgment debtor could not have successfully complained against him for enforcing the judgment, however much it interfered with his income, credit or capacity to do business. The mere fact that the suits were brought and executions issued by joint plaintiffs instead of but one, makes no difference in that respect.3 See Miller v. Post Publishing Co.,
In his brief he deals with other evidence offered to support his contention, but we can find no evidence of unlawful conduct. A few matters, illustrative of the general character, may be referred to. He complained of the expense in putting a new front on one of the business properties and questioned the amount expended for the purpose as well as the propriety of the expenditure. The record shows a basis of possible differences of business *110
judgment on the subject but there is no evidence of unlawful conduct. This is true, too, of the complaints that in some cases the rent was reduced, and that his recommendations were at times disregarded. If his income was diminished by the expenditure, or the reduction of rent, that of his four co-tenants suffered in the same way. If the majority of the co-tenants thought the expenditure necessary to retain the tenant for another term, appellee, so far as appears in this record, cannot complain. He always had his rights as tenant in common, and could at any time have exercised them. A witness also testified that after the new front had been put into the building one of the defendants said to the witness: "That's a nice front you got in the Union Store." "We will have new fronts in all of those store fronts, and we will soon own that building." These statements, it is contended, indicated an agreement and action pursuant to it. They seem to have been made in the Fall of 1930, but whether before or after the judgments were entered and the partition suits begun is not clear. But, in any view, they cannot be regarded as "full, clear and satisfactory" evidence that anything unlawful was in contemplation. All the evidence of this character may be laid aside under the rule thus stated in Benford v. Sanner,
The judgment is reversed and is here entered for the defendants.