Plaintiffs Carl and J. P. Stephenson sued George W. Barber, White Dairy Company, a corporation, Barber Milk Company, a corporation, and Leland O. Wood for damages alleged to have resulted from a fraudulent and unlawful conspiracy of defendants to acquire plaintiffs' milk and dairy business, including customers and good will, without any intention of paying for it. Barber was president and the alter ego of the two corporate defendants, owning most of the stock, with members of his family owning the rest, and Wood was plant superintendent of White Dairy before the events averred. Plaintiffs' business was located in Bessemer and was known as Hollywood Dairies and the Barber businesses were in Birmingham.
From a judgment on verdict all defendants have appealed. The rulings of the trial court challenged separately as error are: (1) overruling demurrers to the complaint; (2) refusal of the affirmative charge and other special charges requested by the defendants; and (3) overruling the motion for a new trial. We will discuss these propositions in order.
The case went to the jury on Count 2 of the complaint as last amended, the material allegations of which will be reported with the case. The demurrers pertinent to consider took the point that the complaint failed to state a cause of action. Stripped of its prolixity, its essential allegations charged the defendants with fraudulently conspiring to obtain the plaintiffs' business and the good will of its customers without paying for it and with no intention to pay for it and the execution to full and final accomplishment of that unlawful scheme. Such conduct was actionable and if proven would warrant a verdict for the plaintiffs.
A civil conspiracy is a combination between two or more persons to accomplish by concert an unlawful purpose or to accomplish a purpose not in itself unlawful by unlawful means. Bankers Fire & Marine Ins. Co. v. Sloss, 229 Ala. 26, 155 So. 371, and cases cited; National Park Bank v. Louisville & N. R., 199 Ala. 192, 74 So. 69.
Following also is an approved definition: A conspiracy is defined as the combination of two or more persons to do (a) something that is unlawful, oppressive, or immoral; or (b) something that is not unlawful, oppressive, or immoral, by unlawful, oppressive, or immoral means; or (c) something that is unlawful, oppressive, or immoral, by unlawful, oppressive, or immoral means. 1 Eddy on Combinations, § 171; Horton v. Johnson, 192 Ga. 338, 346, 15 S.E.2d 605; Peoples Loan Co. v. Allen, 199 Ga. 537, 34 S.E.2d 811.
It is clear the complaint was brought within the terms of these definitions and therefore was not subject to the asserted demurrers.
Appellants argue that the fraud counted on related not to any false representation of a past or existing fact, but to future occurrences and therefore came within the general rule that such representations are regarded as merely promissory and are not actionable. 37 C.J.S., Fraud, § 11, p. 231; Hawkins v. People's Trust & Sav. Bank, 215 Ala. 598, 111 So. 641; Zuckerman v. Cochran, 229 Ala. 484, 158 So. 324. The general rule is conceded but there are exceptions. One of the exceptions is noted at 51 A.L.R. 63 as follows: "The weight of authority holds that fraud may be predicated on promises made with an intent not to perform the same, or, as the rule is frequently expressed, on promises
Of like import is the statement of the pertinent rule by our late Chief Justice Gardner on the kindred doctrine of rescission in Snell National Bank v. Janney, 219 Ala. 396, 398, 122 So. 362, 363:
Many other Alabama cases have approved the principle. Following are some: Shepherd v. Kendrick, 236 Ala. 289, 181 So. 782, citing 51 A.L.R. 63; Zuckerman v. Cochran, supra; Nelson v. Shelby Mfg. & Imp. Co., 96 Ala. 515, 11 So. 695; Greil Bros. v. McLain, 197 Ala. 136, 72 So. 410; St. Louis & S. F. R. Co. v. McCrory, 2 Ala.App. 531, 56 So. 822; Southern Loan & Trust Co. v. Gissendaner, 4 Ala. App. 523, 58 So. 737.
True, as argued for appellants, it is generally held that an action for conspiring with another to induce the latter to break his contract cannot be maintained, the remedy being to sue on it. Erswell v. Ford, 208 Ala. 101, 94 So. 67; Louisiana Oil Corp. v. Green, 230 Ala. 470, 161 So. 479.
But that is not this case. The allegations of the complaint set forth a fraudulent conspiracy between all the defendants to acquire plaintiffs' business without paying for it and having no intention to pay for it and by false representations of Wood and other conduct of all defendants conducing to attain that result. Such conduct was actionable. The count goes to show the conspirators were not in the exercise of their just rights, but were guilty of a wrongful act with injury proximately resulting therefrom. The law is that "where there is a conspiracy to act to such wrongful end, an element of illegality essential to such scheme to combine and injure renders the enterprise as executed, or sought to be executed, illegal; that the test of what is lawful for an individual to do is not always the true test of what is lawful for a combination of individuals conspiring to a designated end; that there are things and results lawful for an individual to do or accomplish, which are not lawful for a combination of individuals conspiring and acting to a common end. * * *" Bankers' Fire & Marine Ins. Co. v. Sloss, 229 Ala. 26, 35, 155 So. 371, 378.
We entertain the view, therefore, the count stated a cause of action for civil conspiracy against defendants.
The next question to be considered is whether defendants were entitled to the affirmative charge. Defendant Wood, aside from the issue of the conspiracy, claims to have been entitled to the affirmative charge on another theory which we will discuss later. It is contended for all the defendants that there was no proof that they had entered into any sort of conspiracy prior to October 3, 1947, the onset date of the alleged combination. Concededly there was no positive evidence to that effect, but a conspiracy need not alone be established by that character of evidence. Indeed, seldom is such the case. It is only by looking to the conduct of the alleged conspirators during the progress of the conspiracy and the end result achieved that usually such a fact is established. And to that end it is proper to consider evidence extending over a considerable period, both before and after the date of the alleged combination and even after its termination, just so the proof has a tendency to establish the ultimate fact. Scheele v. Union Loan & Finance Co., 200 Minn. 554, 274 N.W. 673; Blakeney v. State, 31 Ala.App. 154, 13 So.2d 424, certiorari denied, 244 Ala. 262, 13 So.2d 430; 15 C.J.S. Conspiracy, § 92, p. 1143.
In this jurisdiction, unlike in some others, there need be only a scintilla of
It would serve no useful purpose to laden the opinion with a detailed recital of the evidence, which is recorded here in some three hundred transcript pages. It is enough to say that from the relationship of the defendants; the fact that Barber wanted to enlarge his business in the Bessemer area; that it was common knowledge Hollywood Dairies was for sale; the negotiation for the sale by Wood, a longtime trusted employee of Barber, who had advanced himself from a day laborer's position when he entered the employ as a boy of seventeen years to the position of plant superintendent, his age at that latter date being thirty-three years; that Wood represented to the plaintiffs that he was not purchasing for Barber or for anyone else, but for himself alone; that when he took over the business it was grossing about $12,000 per month and when he abandoned it it had increased to about $17,000 per month; but meanwhile he had permitted the defendant companies to take over his business, customers, and the customers' good will; all this without notifying the persons most interested, the plaintiffs, and finally abandoning the whole thing and returning to work for Barber. This and other items of evidence in our view would, under the scintilla rule, justify refusal of the affirmative charge on the issue vel non of a civil combination between the defendants to take over for Barber and companies the plaintiffs' business without paying for it.
The following cases bear analogy and are somewhat sustentive: Falstaff Brewing Corp. v. Iowa Fruit & Produce Co., 8 Cir., 112 F.2d 101; Hedrick v. Perry, 10 Cir., 102 F.2d 802; Scheele v. Union Loan & Finance Co., supra; Wm. Goldman Theatres, Inc., v. Loews Inc., 3 Cir., 150 F.2d 738; Globe & Rutgers Fire Ins. Co. v. Firemen's Fund & Ins. Co., 97 Miss. 148, 52 So. 454, 29 L.R.A.,N.S., 869; Peoples Loan Co. v. Allen, supra.
The foregoing conclusion also disposes of the contention of defendant Wood that he was entitled to the affirmative charge on his special defense of his release in bankruptcy. The fact of a conspiracy having been a question for the jury to decide on the conflicting evidence made it proper to refuse the affirmative charge on this theory. A discharge in bankruptcy does not release a debtor from liability for fraud such as for obtaining money or property by false pretense or false representation and, of course, the rule would obtain whether or not the fraud was personal to the defendant or was committed by him in concert with others. Gerald v. M. C. Kiser Co., 209 Ala. 532, 96 So. 428; Brown Shoe Co. v. Schaefer, 242 Ala. 310, 6 So.2d 405; 11 U.S.C.A. § 35.
There was likewise no error in refusal of charges 3 and N. Other reasons aside, they were fully covered in the court's oral charge.
But the conclusion that the case was properly submitted to the jury on the conflicting evidence by no means leads to the result that the ruling denying the motion for a new trial should be sustained, for this court, after indulging all reasonable intendments in favor of the ruling below, concludes the verdict was unjust. Koonce v. Craft, 234 Ala. 278(5), 174 So. 478; General Accident, Fire & Life Assur. Corp. Ltd., v. Jordan, 230 Ala. 407(7), 161 So. 240.
We think the overwhelming weight of the evidence was against the verdict. The reasonable probabilities are against the idea of a conspiracy. At most there was but a scintilla, "a mere gleam," to sustain
Reversed and remanded.
LIVINGSTON, C. J., and GOODWYN and CLAYTON, JJ., concur.