Rundell v. Kalbfus

125 Pa. 123 | Pa. | 1889

Opinion,

Mr. Chief Justice Paxson:

The first assignment alleges that the court below erred in instructing the jury that they might find a verdict against one of the defendants and in favor of the others. If this instruction was erroneous it lias not been made to appear. The action below was for a tort in the nature of a conspiracy. The declaration is not printed in the paper books; hence we can gather no information from it. In a prosecution for a conspiracy the combination is of the gist of the offence, and if that is not proved there can be no conviction. The offence is complete wdien the conspiracy is formed. In a civil suit for damages the rule is different. In the latter case, the mere combination injures no one, and, unless there is something done in pursuance thereof, I apprehend no action would lie. The rule is thus laid down in our latest case upon this subject, Collins v. Cronin, 117 Pa. 35: “ In an action against two or more, in case in the nature of a conspiracy, if the tort be actionable whether committed by one or more, recovery may be had against but one; but if the tort be actionable only when committed under an unlawful conspiracy of two or more, recovery may not be had unless the unlawful conspiracy be established.” If the declaration had been printed we could have formed an intelligent opinion as to whether the tort in this case was of such a nature that all the defendants must have participated therein. It is becoming a too frequent practice to omit the pleadings from the paper book of the plaintiff in error. In all such eases we must assume that they sustain the verdict.

The second assignment alleges that the court erred in entering judgment against the defendant below upon the special verdict. The jury found a general verdict against the defendant for |552. They also, at the request of the court, found certain facts specifically. The court entered judgment in favor of plaintiffs upon the verdict. In this we see no error. This was an action brought by the plaintiffs against the defendant to recover damages for a breach of his duty to them as agent. If the defendant, while acting as the agent of plaintiffs to buy hay for them, turned over the hay when bought for them and with their money, to the firm of Billings & Fell, after a rise in the market price of the hay, for the purpose of getting larger commissions, or for any reason, he was acting in bad faith and would be liable to his employers for any loss they sustained thereby. The plea of a former recovery was of no importance and might well have been demurred to. It related to a suit to which the defendant was not a party. We see nothing in the record of that suit, so far as it was presented, to prevent a recovery by the plaintiffs in this suit against their agent for a fraud committed by him. The third assignment was to the admission of evidence. It is not in accordance with our rules and will not be considered. The remaining assignments are not important.

Judgment affirmed.