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Louis Kamm, Inc. v. Flink

Decided: October 5, 1934.


On appeal from a judgment of the Essex County Circuit Court.

For the appellant, Aaron Marder.

For the respondents, Milton M. Unger.


The opinion of the court was delivered by

HEHER, J. The judicial action here challenged is a judgment in favor of defendants, based upon an order striking out the complaint as sham.

We are confronted, in limine, with the question of whether the complaint is frivolous. It is in three counts. The gravamen of the first is that defendants (a) "wrongfully, maliciously and improperly induced and caused the Guarantee Building and Loan Association of the City of Newark (of which defendant Julius Flink was president) to drop and ignore plaintiff (who had procured a prospective purchaser of a theatrical property which the loan association desired to sell) as the broker for the sale of said premises," after plaintiff had disclosed the identity of such purchaser, one Louis Levin, upon the assurances of Julius Flink and associate members of the executive committee of the loan association that, "since such customers were plaintiff's only stock in trade," the disclosure of "the customer's name would be held in strictest confidence, and that the plaintiff would not in any way be injured" thereby, and "to recognize Herman Sperling

(Julius Flink's brother-in-law) and/or Joseph Mankoff (Sperling's partner in the real estate brokerage business) as the broker who sold said premises to Levin, and to pay or agree to pay said Herman Sperling and/or Joseph Mankoff commission for said sale in approximately the sum of $4,500," which was later "divided between said defendants;" (b) "did entice and steal from the plaintiff said Louis Levin as a customer for the purchase of said premises;" and (c) "unlawfully, improperly and maliciously interfered with plaintiff's relation with Louis Levin as a customer for the purchase of the aforesaid premises;" to the damage of plaintiff in the sum of $4,500, the commission which he would have otherwise earned and received. The gist of the second count is a conspiracy on the part of the defendants to effect the foregoing objects. And the third count averred that defendant Julius E. Flink "falsely represented to plaintiff that he would not disclose the name of plaintiff's customer," if plaintiff would reveal his identity, "and that the plaintiff would not be in anyway damaged by said disclosure;" that said Flink "well knew that said representations were false and that he intended to disclose the name of plaintiff's customer and intended to damage plaintiff thereby;" and that plaintiff, "believing said representations to be true, acted upon them, and, in reliance" thereon "disclosed the name of plaintiff's customer."

The complaint is sufficient in law. The action sounds in tort. The ways in which one may become liable to an action as for tort are the following: (1) By actually doing to the prejudice of another something he ought not to do; (2) by doing something he may rightfully do, but wrongfully or negligently doing it by such means or at such times or in such manner that another is injured; and (3) by neglecting to do something which he ought to do, whereby another suffers an injury. Cooley Torts (4 th ed.), § 44. Of course, that which it is right and lawful for one man to do cannot furnish the foundation for an action in favor of another. And the absence of a commendable motive on the part of the party exercising his rights is not the legal substitute or

equivalent for the thing amiss which is one of the necessary elements of a wrong. "An act which does not amount to a legal injury cannot be actionable because it is done with a bad intent." Cooley Torts (4 th ed.), § 56. But motive is ofttimes a determinative in appraising conduct. The guiding principle was aptly stated by the Supreme Court of Massachusetts: "It is said also that, where one has the lawful right to do a thing, the motive by which he is actuated is immaterial. * * * If the meaning of this and similar expressions is that, where a person has the lawful right to do a thing irrespective of his motive, his motive is immaterial, the proposition is a mere truism. If, however, the meaning is that where a person, if actuated by one kind of a motive, has a lawful right to do a thing, the act is lawful when done under any conceivable motive, or that an act lawful under one set of circumstances is therefore lawful under every conceivable set of circumstances, the proposition does not commend itself to us as either logically or legally accurate. In so far as a right is lawful it is lawful, and in many cases the right is so far absolute as to be lawful whatever be the motive of the actor, as, where one digs upon his own land for water, or makes a written lease of his land for the purpose of terminating a tenancy at will, but in many cases the lawfulness of an act which causes damage to another may depend upon whether the act is for justifiable cause; and this justification may be found sometimes in the circumstances under which it is done, irrespective of motive, sometimes in the motive alone, and sometimes in the circumstances and motive combined." Plant v. Woods, 176 Mass. 492; 57 N.E. Rep. 1011; 51 L.R.A. 339.

The primary inquiry therefore is, what constitutes a wrong that the law will redress. All wrong may be considered as merely a privation of right, and the plain, natural remedy for every species of wrong is the being put in possession of that right whereof the party injured is deprived. This may either be effected by a specific delivery or restoration of the subject-matter in dispute to the legal owner, or, where that is not possible, or at least not an adequate remedy, by making the

sufferer a pecuniary satisfaction in damages. 3 Bl. Com. 116. There is no necessary identity, or even relation, of legal right and moral right. Legal right must be established on principles of general utility. A legal right may be said to be a well founded claim, enforced by sanctions. By legal rights are intended those to which the state gives its sanction. The sanction it gives is the sanction of remedies; so that a legal right may be said to be a claim which can be enforced by legal means against the persons or the community whose duty it is to respect it. 1 Cooley Bl. Com. 109, 113, note. "A tort or a wrong may be spoken of either as a breach or violation of a duty or an infringement of a right." 1 Jaggard Torts 2.

The case pleaded falls naturally into the classification of an actionable infringement of a property right, i.e., the right to pursue one's business, calling or occupation free from undue interference or molestation. The wrongful act charged was the malicious interference with appellant's business. Its object and consequent, so the complaint charges, was the deprivation of the business and profit that would otherwise have accrued. Natural justice dictates that a remedy shall be provided for such unjust interposition in one's business. The ...

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