Shope v. Boyer , 268 N.C. 401 ( 1966 )

150 S.E.2d 771 (1966) 268 N.C. 401

W. B. SHOPE
v.
E. E. BOYER et al.

No. 294.

Supreme Court of North Carolina.

November 2, 1966.

Warren C. Stack, James L. Cole, Charlotte, for plaintiff appellant.

Helms, Mulliss, McMillan & Johnston, by Fred B. Helms, Charlotte, for defendant appellees.

HIGGINS, Justice.

The demurrer challenges the complaint as fatally defective in factual averments. These defects appear upon its face. Attached to and made a part of plaintiff's basic pleading is a copy of the contract between A. P. Central as seller, and each corporate defendant as customer. The plaintiff alleges the defendants conspired to violate the attached contract. The contract provides:

"WHEREAS, Customer desires from time to time to purchase some of its requirements of such parts and other articles as are warehoused and sold by the Seller and Customer agrees to maintain on deposit with the Seller the sum of $5,000.00 to guarantee payment." (Emphasis added.)

The complaint does not allege any customer failed to purchase from A. P. Central some of its requirements or such of them as it desires; or failed to keep on deposit a sum sufficient to guarantee payment of its accounts. Facts are not alleged which permit the inference that any defendant breached the contract. In any event, even if the complaint alleged a cause of action for breach, it would be in favor of A. P. Central—not the plaintiff.

The complaint further alleges that defendants conspired to bankrupt A. P. Central by subscribing to stock in Parts Distributors Warehouse, Inc. Again, facts are not alleged from which it may be inferred that any defendant by subscribing to stock in a competing business violated the contract with A. P. Central, or any duty to plaintiff arising by contract or otherwise. The complaint fails to allege any unlawful or tortious act of any defendant giving rise to a cause of action in the plaintiff's favor or that the plaintiff has any right to assert any cause which A. P. Central might have against any defendant.

The plaintiff appears to rely on his charge of conspiracy. However, he fails to allege any overt, tortious, or unlawful act which any defendant committed in furtherance of the conspiracy. In civil conspiracy, recovery must be on the basis of sufficiently alleged wrongful overt acts. The charge of conspiracy itself does nothing more than associate the defendants together and perhaps liberalize the rules of evidence to the extent that under proper circumstances the acts and conduct of one might be admissible against all. Muse v. Morrison, 234 N.C. 195, 66 S.E.2d 783; Safie Mfg. Co. v. Arnold, 228 N.C. 375, 45 S.E.2d 577.

The complaint concludes that each defendant, by subscribing to stock in Parts Distributors Warehouse, Inc., thereby breached the contract between A. P. Central and the defendants. Again, facts constituting a breach are not alleged. The conclusion is therefore unwarranted. McNeill v. Hall, 220 N.C. 73, 16 S.E.2d 456.

The rule of law involved is discussed by Bobbitt, J., in Reid v. Holden, 242 N.C. 408, 88 S.E.2d 125:

"Attention is called to certain relevant general principles. ``Accurately speaking, there is no such thing as a civil action for conspiracy. The action is for damages caused by acts committed pursuant to a formed conspiracy, rather than by the conspiracy itself; and unless something is actually done by one or more of the conspirators which results in damage, no civil action lies against anyone. The gist of the civil action for conspiracy is the act or acts committed in pursuance thereof—the damage—not the conspiracy or the combination. The combination may be of no consequence except as bearing upon rules of evidence or the persons liable.' 11 Am.Jur. 577, Conspiracy, sec. 45. To create civil liability for conspiracy there must have been an overt act committed by one or more of the conspirators pursuant to the scheme and in furtherance of the objective. 15 C.J. S. Conspiracy § 5, page 1000. * * * Muse v. Morrison, 234 N.C. 195, 66 S.E.2d 783; Holt v. Holt, 232 N.C. 497, 61 S.E.2d 448."

We must judge the sufficiency of the complaint by the facts alleged and not by pleader's conclusions. Bennett v. National Surety Co., 261 N.C. 345, 134 S.E.2d 678. The repeated use of the words combined, conspired, and agreed together to injure the plaintiff, are but conclusions of the pleader and without the allegation of the overt acts the complaint is insufficient to state a cause of action and cannot survive the demurrer. Bennett v. National Surety Co., supra; Jewell v. Price, 259 N.C. 345, 130 S.E.2d 668; Burns v. Gulf Oil Co., 246 N.C. 266, 98 S.E.2d 339; Kirby v. Reynolds, 212 N.C. 271, 193 S.E. 412.

We conclude that the complaint fails to state any cause of action which exists in favor of the plaintiff against any of the defendants. The judgment sustaining the demurrer is

Affirmed.