Opinion
42567.
SUBMITTED JANUARY 4, 1967.
DECIDED JANUARY 19, 1967.
Action for damages. Fulton Superior Court. Before Judge Moore.
J. M. Grubbs, Jr., Essley Burdine, for appellant.
LeRoy C. Hobbs, Carpenter Karp, for appellees.
Where one seeks to impose civil liability for a conspiracy, unless the element of combination adds such a power of coercion, undue influence or restraint of trade as to make unlawful certain types of conduct in which one man alone might legitimately engage (see Vandhitch v. Alverson, 52 Ga. App. 308, 310 (1) ( 183 S.E. 105); Prosser, the Law of Torts, (3d Ed.), p. 260, § 43), "the gist of the action is not the conspiracy alleged, but the tort committed against the plaintiff and the resulting damage. The plaintiff must allege all the elements of a cause of action for the tort the same as would be required if there were no allegation of a conspiracy." J C Ornamental Iron Co. v. Watkins, 114 Ga. App. 688 ( 152 S.E.2d 613). Accordingly, where a petition merely alleges an oppressive course of conduct characterized by sharp business practices without setting forth all the necessary elements of a distinct tort committed during the course of the conduct resulting in damage, the petition is subject to general demurrer notwithstanding allegations that defendants conspired to gain plaintiff's business and cause his financial ruin. J C Ornamental Iron Co. v. Watkins, supra; Drummond v. McKinley, 65 Ga. App. 145 ( 15 S.E.2d 535).
Judgment affirmed. Felton, C. J., and Hall, J., concur.
SUBMITTED JANUARY 4, 1967 — DECIDED JANUARY 19, 1967.
John A. McCrary brought this damage suit against A A Music Service, Inc., and Cecil L. Huxford, its president, charging the defendants with conspiring with each other and with Hugh Burger, the general manager of the corporation and agent of both defendants, "to have money available to the plaintiff" on certain terms for the ultimate purpose of gaining plaintiff's business and causing his financial ruin.
The petition alleged substantially as follows: plaintiff had purchased from David D. Nelson, a restaurant business known as the Java House for a purchase price of $25,000, borrowing from Nelson $15,000 and securing the loan with a bill of sale to secure debt covering the business. Located on the premises was a cigarette machine owned by Modern Cigarette Company and an automatic coin-operated music machine owned by defendants. The music machine produced approximately $200 per month, of which plaintiff was entitled to one-half and defendants to one-half.
As the business prospered plaintiff reinvested the profits in the modernization and development of the restaurant and continued to build up his capital investment. Finding himself in the need of additional funds, plaintiff agreed with Burger, who had been urging him to accept defendant's cigarette machine on the premises, that he would accept a fair loan from defendants based upon Burger's representations as to the virtues, honesty and fair dealings of Huxford. Accordingly a loan was consummated on April 21, 1964, between defendants and plaintiff. An agreement purportedly entered into by Huxford and plaintiff dated April 21, 1964, attached to the petition as an exhibit, recited that in consideration of a loan of $3,000, from A A Music Service, Inc. to plaintiff "evidenced by a promissory note," it was agreed: (1) the promissory note would be renewed by Huxford each ninety days for a period of twelve months, interest of 8% per annum payable at each renewal; (2) after twelve months, plaintiff would make payment on the note of $60 per week which would be applied first to interest at the rate of 8% per annum calculated on the principal balance at the end of the preceding months; (3) "As consideration for obtaining the above mentioned loan John A. McCrary hereby agrees to pay to Cecil L. Huxford the sum of twenty-five dollars and no/100 ($25) per week as brokerage for a period of three years commencing April 24, 1964. . . It is expressly agreed and understood by both parties to this agreement that the payment of twenty-five dollars ($25) per week mentioned immediately above will not in any event be applied to nor become any part of the three thousand dollars ($3,000) loan mentioned at (1) and (2) above." It was alleged that the $25 per week "blood money" was to be paid out of plaintiff's share of the proceeds of the music machine.
On September 16, 1964, defendants enticed plaintiff to borrow $1,000 repayable in monthly installments of $100 each. A note attached to the petition as an exhibit purportedly signed by plaintiff contained a promise to pay $1,543.25 to the order of A A Music Service, Inc. in monthly installments of $100 each commencing October 28, 1964, with a final payment of $343.25.
On October 1, 1964, defendants again enticed plaintiff into making a "fair and honest" loan of $3,000 by the "easy" method. An agreement purportedly entered into by Huxford, plaintiff, and plaintiff's wife dated October 1, 1964, attached to the petition as an exhibit, recited that in consideration of a loan of $3,000 from A A Music Service, Inc. to plaintiff and his wife "evidenced by a promissory note," it was agreed: (1) the note would be repaid at the rate of $100 per month commencing November 1, 1964, and continuing for twelve months, at which time the balance would be renewed for a similar period under the same terms and conditions with interest at 8% per annum payable at each renewal; (2) "As consideration for obtaining the above mentioned loan John A. McCrary hereby agrees to pay Cecil L. Huxford the sum of sixty and no/100 dollars ($60) per month as brokerage for a period of three years or until the above mentioned note is repaid, whichever period is longer, commencing November 1, 1964. . . It is expressly agreed by all parties to this agreement that the payments of sixty dollars per month mentioned above will not in any event be applied to the three thousand loan mentioned at (1) above." It was alleged that in making this loan plaintiff was required by defendants to remove from his place of business the cigarette machine owned by defendants, the $60 per month "blood money" to be paid out of plaintiff's share of the receipts from defendants' cigarette machine.
On account of the stringent repayment terms and the "blood money" required, plaintiff suddenly found himself in a critical demand for cash in order to meet his usual monthly obligations as well as the unusual obligations owed to defendants. At this time defendants, with promises of hiring plaintiff and putting him in one of the best restaurants in Atlanta, began a campaign to buy plaintiff's business, the value of which excluding goodwill had increased to $43,000. At the same time defendants continuously badgered plaintiff about his indebtedness and began to make life and business miserable and bleak for him.
Finally plaintiff agreed to sell to defendants and on January 21, 1965, executed to Huxford an option to purchase the business at a price equal to the net book value as determined by certified public accountants. The price thus established was $43,000; defendants, however, informed plaintiff that they were not interested in exercising the option and suggested that it would be best for them to get together and bankrupt the business, beat all of plaintiff's open-account creditors, and re-establish a more "realistic" purchase price. Plaintiff violently disagreed and terminated all negotiations with the defendants, to which response defendants stated "if you don't do it, we will get the business anyway and put you out."
Under the provisions of the option plaintiff was required to and had made available to defendants the details of all of his business affairs connected with the ownership and operation of the Java House, thus disclosing to defendants the terms of his lease and the existence of the original bill of sale to secure debt. Upon termination of negotiations defendants attempted to have plaintiff's landlord summarily eject plaintiff. Failing in this, defendants, "utilizing the confidentially disclosed information obtained in bad faith," acquired the lease and bill of sale to secure debt, "ejected" plaintiff from the Java House and foreclosed the bill of sale to secure debt.
On the night before "ejection" and foreclosure defendants again came and offered to withdraw if plaintiff would bankrupt the business and let defendants have it at a bargain basement price, and they also sent people to make drawings on the premises and upset his customers, causing him a decline in his business.
Judgment was sought for $118,000, this sum representing $43,000 actual damages for the value of the business and $75,000 punitive damages. From the sustaining of a general demurrer to the petition plaintiff appeals.