Appellant, Tom N. Terry, appeals from an order sustaining a summary judgment in favor of H. B. Zachry, defendant below. Terry claimed that Zachry tortiously interfered with a contract between Terry and H. B. Zachry Company, a private corporation. The controlling point in the case is whether there was an interference by a corporate officer, such as is prohibited by law.
Terry and the corporation entered into a written employment contract in 1946, by the terms of which Terry agreed to manage the Rancho Blanco farm which belonged to the corporation. The corporation agreed to pay Terry a monthly salary, and also fifty per cent of any profits or losses on all crops after June 1, 1946. The contract detailed the equipment and property that were assigned to Terry for his farm operations, stated his duties, and had *158 certain provisions withreference to the accounting methods which would be used.
The parties performed under this contract for three years, and in January of 1949 Terry, as permitted by his contract, terminated the contract. The farm operations grossed almost half a million dollars. Á controversy developed between Terry and the corporation with reference to the amount owing Terry, as a result of which Terry sued the corporation in the Federal Court for. $70,000. The Federal District Court awarded Terry $52,864.49, together with $5,304.05, interest at 6% from July 19, 1949. Art. 5070, Vernon’s Ann.Civ. Stats. The Circuit Court of Appeals, H. B. Zachry Co. v. Terry, 5 Cir.,
In the meantime Terry filed this suit against H. B. Zachry, individually, in the District Court of Bexar County. He asserted that Zachry was the chairman of the board for the corporation when the contract was executed, that the corporate acts were performed at the specific direction .and under the personal supervision and control of Zachry, that from time to time errors in accounting were made but were corrected; but that after he terminated his employment Zachry, actuated by bad faith and malice, commenced a course of action toward him. Terry stated that all records were kept by the corporation, that Zachry personally prepared an accounting for the •corporation which showed only $16,537.01 was due Terry. Terry stated that certain unfounded charges against his account had been made, that he was unable to gain access to the corporation records for an audit of his own, and that he obtained a correct accounting only after he was put to the expense of his successful lawsuit in Federal Court. He alleged that Zachry told him in the summer of 1948, before Terry terminated his contract, that he, Terry, was at Zachry’s mercy and the contract would mean just what he said it meant, and that it would be useless for Terry to cross him since he, Zachry, was so powerful and influential. Following these transactions, Terry then filed his suit in Federal Court, obtained an audit, held his trial, obtained his judgment, and enforced full collection. For the tortious interference with the contract, Terry seeks to recover profits he claims he would have earned from tomato and onion crops, had he received his money and planted the crops, damages for worry and anguish, refund of the attorney’s fees and costs of the former suit, and punitive damages.
Zachry moved for a summary judgment and attached most of the documents of the Federal Court case, including the pleadings, the trial court’s memorandum decision, stipulations of the parties, the trial court’s finding the judgment,, and the opinion of the Fifth Circuit Court, H. B. Zachry Co. v. Terry, reported in
An action will lie against a third party who . tortiously interferes with another’s contract. 30 Am.Jur., Interference, § 19. Texas is in accord with that view. Raymond v. Yarrington,
An action will not lie, however,- under the statement of the rule, for every interference.
1
An important element to the assertion of such a right is that the thing done must be done, without- right or justification. Lytle v. Galveston H. & S. A. R. Co., supra; .Tidal Western Oil Corporation v. Shackleford, Tex.Civ.App.,
Plaintiff’s showing, giving it full effect, was that Zachry maliciously induced the corporation to litigate for the determination of the true amount owing on an uncertain and unliquidated claim. The contract was fully performed except for payment of an undetermined amount that was owing Terry. There is the additional fact that the-corporation delayed in furnishing its books and accounts to the plaintiff for examination by his own private accountant. An arbitrary refusal to pay an un-liquidated and disputed claim is not the basis for a suit for malicious defense of a suit. Especially is this' true when the debtor is solvent. Norcross v. Otis Bros. & Co.,
Until the Federal Court ruled, no one in the world knew the amount that the corporation owed Terry. The correct amount had never been suggested by Terry or the corporation' at any time during the initial negotiations between Terry and the corporation, between Terry and Zachry individually, nor at any time either before or after both sides had finally gained complete access to the books and prepared their own ideas. of the accounting. Plaintiff’s cause of action asserts that Zachry interfered with the corporation in that he prevented it from paying a debt, the correct amount of which nobody knew. Were the rule otherwise, an: officer of a corporation would induce a corporate officer to resist a claim at the risk of invoking a personal action unless the corporation was absolutely correct. A wilful refusal to pay an un-liquidated claim is -not the basis for. a separate and independent suit against the- *160 corporate officers who induced such action. 62 C.J., Torts, § 57, 86 C.J.S., Torts § 45; 30 Am.Jur., Interference, § 28, states the rule even more broadly: “It has been held, •for example, that notice by a third person to a debtor not to pay his creditor by reason of which the latter is compelled to sue to recover the sum due him does not constitute sufficient ground to support an action for damages even though such notice is given maliciously. The interest on the debt is held to be compensation for the delay in payment.”
Hornstein v. Podwitz,
“ ‘But the servant who causes a breach of his master’s contract with a ■ third person seems to stand in a wholly different position. He is not a stranger. He is the alter ego of his master. His acts are in law the acts of his employer. In such a case it is the master himself, by his agent, breaking the contract he has made, and in my view an action against the agent under the Lumley v. Gye principle must therefore fail, just as it would fail if brought against the master himself for wrongfully procuring a breach of his own contract. * * ”
The Greyhound case then states, that the doctrine of Said v. Butt was later approved in Scammell & Nephew, Ltd. v. Hurley, 1 K.B. 419, and then adds: “While relating to directors and officers of a corporation, similar expression of opinion is found in this jurisdiction. Lukach v. Blair,
The judgment awarding the defendant a summary judgment is affirmed.
Notes
. For a discussion of interferences which ' are justified or privileged, see, Carpenter, Interfering with Contract Relations (1928), 41 Harvard Law Review 764, 745-763, and Blinkoff, Interference with Contractual Relations, 17 Corn.L.Q. 509, 517-522.