Minnesota law places limits on the extent to which a civil conspiracy theory may be used to impose vicarious or joint and several liability. A plaintiff may not use allegations of conspiracy to weld into a single claim actions based upon contract and tort or actions running against different defendants. Jewell v. Jewell, 215 Minn. 190, 9 N.W.2d 513, 516-17 (1943). A conspiracy claim may stand only if it constitutes a single cause of action that is "against and affect[s] all defendants alike."
Scheele v. Union Loan Finance Co., 200 Minn. 554, 274 N.W. 673, 678. Jewell v. Jewell, 215 Minn. 190, 9 N.W.2d 513; 58 C.J.S., Monopolies, § 117(7), page 1172. Lowe v. Consolidated Edison Co. Inc., D.C.N.Y., 67 F. Supp. 287.
Where more than one cause of action is both commingled in a pleading and improperly joined in such pleading, a defendant may demur to the misjoinder without first moving to have the causes separately stated and numbered. See, Baker, Administrator v. Brial, 185 Kan. 322, 341 P.2d 987 (1959); Jewell v. Jewell, 215 Minn. 190, 9 N.W.2d 513 (1943). We agree with the defendants that the bank's petition joined two causes of action.
It seems clear to us that neither the first cause of action can affect Anderson and Linster, nor the second or third causes Bremer. Hence there is a misjoinder. Other cases of this court in harmony with Anderson v. Scandia Bank, 53 Minn. 191, 54 N.W. 1062, supra, on the subject of misjoinder are Lind v. O. N. Johnson Co. 204 Minn. 30, 282 N.W. 661, 119 A.L.R. 940, where the matter is fully discussed; King v. Socony-Vacuum Oil Co. Inc. 207 Minn. 573, 292 N.W. 198; Jewell v. Jewell, 215 Minn. 190, 9 N.W.2d 513. See also Isaacs v. Milwaukee Chair Co. 229 Wis. 184, 282 N.W. 1.
Where the evidence permits an inference of concert of action to accomplish a given unlawful result, as where several persons commit separate acts which form parts of a connected whole, an inference of conspiracy — that there was concert in both planning and execution — is permissible. The parts or acts done by each must, however, not only tend to show a prior unlawful combination, but negative the idea of lawful undertaking or purpose. Jewell v. Jewell, 215 Minn. 190, 9 N.W.2d 513; Scheele v. Union L. F. Co. 200 Minn. 554, 274 N.W. 673; Ballantine v. Cummings, 220 Pa. 621, 70 A. 546, supra. In the instant case there is no room for an inference that the defendant Cook had actual knowledge of any of the facts known only to Schmitt, without which his acts were not only not criminal, but innocent and lawful.