defendant George in which reference is made to the said controversy between plaintiff and defendant Briggs on the pretended ground that the usefulness of plaintiff as a professor in said college had been impaired by such controversy, by an official vote and by order of record refused to retain plaintiff as one of its faculty and addressed to plaintiff the following communication: At the annual meeting of the board of trustees yesterday, the following resolution offered by the committee on appointment of professors was adopted by the board: "Inasmuch as the articles of association of Drury College require of the trustees that they shall remove any instructor or officer when the interest of the college shall require it"-we recommend that the secretary of the board should notify Prof. Fritz S. Darrow that in the judgment of the board the interest of the college requires that his term of service should close September 1, 1910, and that he should understand that thereafter he will not be regarded as a member of the faculty.' And plaintiff states that his official connection with Drury College thus and then ended.

"But plaintiff states that the facts stated in said communication are not true, and that in truth and in fact the action of said board was the result of the conspiracy aforesaid to punish and injure plaintiff on account of his religious belief and convictions, and that said conspiracy was formed, as alleged, by defendants to so injure the plaintiff and to destroy, if possible, his standing as a man and educator.

"And plaintiff states that the said Drury College, through its said trustees, had full knowledge of all the acts, statements, and publications of the said Briggs and of the said George, its president, and in all things encouraged and finally ratified the acts of the said president.

fellow man; that he has been held forth unworthy to be a Mason or an educator and unworthy to be classed as either, and that said conspiracy was designed and intended to affect and injure, and the acts and declarations stated did and do affect and injure, his reputation and standing as a man and educator; that by reason thereof he has been humiliated and embarrassed in his communication and intercourse with his fellow men, and inquiries have been made by institutions of learning of said Drury College and have been ignored as a part of said conspiracy; that he has been ousted from his position as a member of the faculty of said Drury College and retired on charges so vague as to justify unfavorable inferences and demanding explanations whenever and wherever he seeks employment, and inquiries have been made by reason of the vagueness of said order of dismissal, and that, by reason of the premises, his standing as an educator has been injured and is injured, and he has been compelled to expend large sums of money to employ counsel, and has been compelled to expend large sums of money by reason of breaking up his residence in Springfield and being compelled to seek employment elsewhere.

"For all of which plaintiff claims he is damaged in the sum of $50,000, for which sum, together with his costs, he prays judgment. "Fritz S. Darrow,

"By T. J. Delaney, Counsel." Each defendant filed a separate demurrer, setting up the same general grounds, which in substance were: (a) That the petition improperly joined two distinct causes of action, one in contract, the other in tort; (b) that said petition improperly joined several distinct causes of action in one count; (c) that "Pursuant to said conspiracy to injure and there was a misjoinder of parties and of damage plaintiff and to prevent his re-employment as an educator and in execution thereof, causes of action in the petition; and (d) beplaintiff states that on the 10th day of July, cause the petition did not state facts suf1910, as he had previously done on a number ficient to constitute any cause of action of occasions in execution of said conspiracy, against the defendants. This demurrer being defendant Briggs declared that 'founders and believers in fads were frequently insane,' in- sustained generally by the court as to each tending to charge and imply, and his auditors and all of the defendants, plaintiff declined so understood the charge to be, that plaintiff to further plead, judgment followed, and was insane, as evidenced by his religious con- the case is here upon the sole question of the goodness of the petition.

victions.

"Plaintiff states that as a part of the conspiracy, and in order to induce and prevail upon the plaintiff to resign from said faculty, the said George falsely represented and pretended that, if plaintiff would resign, he (George) and the said Drury College would favor the adoption of resolutions which would fittingly express the worth of plaintiff as an educator and indorse him as a man and as an educator.

"But plaintiff says that, after the forced retirement as aforesaid of plaintiff from the said faculty of Drury College, members of the said faculty proposed to adopt resolutions of appreciation of the work of plaintiff as one of their body and expressing regret and sorrow at plaintiff's retirement, but plaintiff says that, in furtherance of said conspiracy to injure plaintiff, the defendant George frowned upon and through his influence, as president of said college, defeated the adoption of such resolutions.

Delaney & Delaney, of Springfield, for appellant. W. M. Williams, of Boonville, for respondent Briggs. V. O. Coltrane, of Springfield, for respondents George and Drury College.

as

FARIS, J. (after stating the facts above). I. We have been compelled to set out the petition which has been attacked and the goodness of which on demurrer is the sole question to be decided on this appeal. We might well invoke the maxim "res ipsa loquitur," and, after directing specific attention to this petition, affirm this case, in the spirit in which a case was reversed by Sherwood, J., once on a time in a matter apposite here by analogy only. Robinson v. Musser, 78 Mo. 153.

"Plaintiff states that, by reason of the premises, his religion has been held up to ridicule, and that he has been held up to ridicule and contempt and his feelings outraged; that he has been placed in a false position and his religion misrepresented and reviled; that he has been held forth to the people of Springfield, Mo., and in all places where said papers circulate, as a teacher and defender of principles and views antagonistic to good morals, good government, and Christian teaching; that he has been held forth and represented as unmanly and underhanded in his dealings with his of

[1] II. Plaintiff in his brief says:

"The dismissal of plaintiff without just cause as it was is a breach of such contract and would entitle plaintiff to recovery against Drury College."

The petition of plaintiff upon the question whether any action could possibly lie

against Drury College for discharging plain- | dismissed him. It is beside the question that tiff from his position therein as a teacher he may have been dragged, or nagged, as says:

"Plaintiff states that by the terms of his contract with said Drury College, as is the case of every member of the faculty, the period of his employment as teacher was indeterminate; that is to say, plaintiff was retained for the period of one year with the understanding and agreement that plaintiff would be retained at the discretion of the board of trustees for any period beyond said first year without any formal employment or renewal of said contract, and said board by the articles and by-laws of said college could remove after said year any instructor, when in the judgment of said board the interest of the college shall require it."

It is manifest that, under such a contract as plaintiff avers he had with Drury College, the latter, through its trustees, was given a very broad discretion to remove the plaintiff from his position as a teacher in that school. This broad discretion is conferred and permission to so discharge him is given by the use of the words "when in the judgment of said board the interest of the college shall require it." Brookfield v. Drury College, 139 Mo. App. 339, 123 S. W. 86. If plaintiff (and he avers in his petition he did)

suffered himself to be drawn into a contro

versy in the newspapers, in which such intemperate language as he sets out was used by him and by defendant Briggs toward each other, we are not able to say that the removal of plaintiff was an abuse of discretion in the board of trustees. While the petition of plaintiff avers the throwing off of sectarian religious suzerainty by Drury College, and by broad inference charges that it sacrificed its religious connections and convictions for a mess of Carnegie pottage, and while we

counsel charge, into his unfortunate attitude by the officious intermeddling of a pragmatic zealot. We do not think that any cause of action was stated against Drury College.

[2] III. It is fairly plain that the petition here seeks to charge a conspiracy on the part of the defendants Briggs, George, and others, who are trustees of Drury College, to bring about the retirement of plaintiff as a teacher of said college. We have seen that the confessed acts of plaintiff considered the board of trustees of this college had both ample power and legal provocation to discharge plaintiff from his office as teacher therein. In the absence of a statute forbidding conspiracies about a given subject-matter, no legally hurtful, and ergo no actionable, conspiracy could be maintained by defendants toward plaintiff as to a thing which the board was justified in doing upon the facts here without a conspiracy. There are averments of fact as to alleged slanders and libels in the petition which might be sufficient, if they were properly pleaded with a proper

legal setting, to render defendant Briggs liable to be put upon his defense for actionable utterances. For Briggs, if the petition be true, and we are compelled to so regard it for the uses of this discussion, was guilty of a meddlesome and gratuitous intolerance touching the internal affairs of a school outside of his own church, which, to say the least, was never part or parcel of the example set by the meek and lowly Nazarene whom he professed to follow, and in whose vineyard he was working, and in whose footthis is so or not we need not and do not now steps he ought to try to walk. But whether

rule.

In fact, it is

[3] Be this as it may be, the whole trend of all of the other allegations is that defendant George had neither part nor parcel in not contended by plaintiff that he took any any such libels or slanders. render said George liable for these acts of physical part therein. But plaintiff seeks to defendant Briggs by a charge of conspiracy. It appears, however, by an averment further along in this petition, that:

must deem this true for the purposes of this demurrer, we are yet unable to conceive of the avowal by a college teacher of devotion to a cult such as theosophy and a taking up in a newspaper controversy of the cudgels in defense thereof, being anything but hurt ful to any college-Girard College not excepted. See 26 Encyc. Brit. 790, Theosophy. We know, as every one else knows, that those standing in loco parentis to students select institutions of learning with some considerable thought of moral training and with some view to such a religious atmosphere as is common to, and not out of harmony with, "The said Briggs on the 12th day of March, some of the recognized religions of the West- 1910, falsely and maliciously represented and ern Hemisphere. Can it be contended that, if stated to the defendant J. H. George, who was Drury College were to announce that one of then the president of said Drury College, that its teachers was a believer in Buddhism, an- plaintiff is an atheist and unfit to be an instructor in said Drury College,' then and thereother a devotee of the creed of the Sunwor- by charging, implying, and intending to charge shippers, and still another a Mohammedan, and imply that plaintiff, as a so-called atheist, such beliefs and creeds, however popular in was morally unfit to be an instructor. And the Orient, where they originated, would pop-ment of plaintiff from said Drury College and said Briggs at said time demanded the retireularize an institution of learning compet- threatened a boycott against said college by a ing for the privilege of educating western body known as the Ministerial Alliance of youths? We do not think there is any doubt Springfield." that the voluntary acts of plaintiff, as he It will be seen that the pleader, after himself pleads them, of themselves furnished charging a combine and confederation beample cause for his dismissal, and that tween defendants George and Briggs, here Drury College violated no contract when it charges Briggs as acting alone and as com

municating certain facts to George touching | ance of a conspiracy. In an action on the case plaintiff's alleged unfitness to be an instructor in said college, and as urging upon George the discharge of plaintiff. Such an averment is of course rankly inconsistent with plaintiff's theory of an actionable conspiracy.

The appellant very seriously contends that learned counsel for defendants have utterly misapprehended his position and his petition. This position, as we gather it from his brief, is that he is not suing for libel or slander, or for breach of contract, but that his pleading is intended in effect to perform the office of the old action on the case for conspiracy. This position he thus states in his brief:

"As is plainly indicated, it is a suit bottomed on an alleged conspiracy which involved breach of contract and slander and libel as means of accomplishment."

Let us examine whether this position is tenable. An inspection of the petition discloses that defendant George is not charged personally with issuing libels or uttering slanders against plaintiff. The gravamen is that Briggs slandered and libeled the plaintiff in pursuance of an alleged conspiracy between George and Briggs. The animus alleged may be read between the lines. No actual malice toward the plaintiff is charged. But the animus of Briggs we thus infer is due to the frenzy of overzeal; that of George to protect and subserve the interests of his school.

[4] Returning to the strict letter of the petition, and viewing it and weighing it as an action on the case for conspiracy, we find that in such an action the rule was stated in the very early case of Hunt v. Simonds, 19 Mo. loc. cit. 588, thus:

"In a civil action on the case for a conspiracy, the gist of the action is the damage which the plaintiff has sustained by the acts of the defendants, and the allegation of a conspiracy need not be proved. 1 Saund. 230, note 4; Laville v. Roberts, 1 Ld. Raym. 378; Sheple & Warner v. Page, 12 Vt. 533. In Hutchins v. Hutchins, 7 Hill [N. Y.] 107, it is said: "The conspiracy or combination is nothing, so far as sustaining the action goes; the foundation of it being the actual damage done to the party.' It is upon this ground only that those cases rest which allow a recovery against one defendant when the others are acquitted. As it is the settled law that, in an action on the case in the nature of a writ of conspiracy, the plaintiff may have judgment against one defendant, although he may have no cause of action against the others, we are assisted in determining the character of the case which will support such action; and the conclusion would seem to be unavoidable that the action can only be sustained against several, where the acts complained of would sustain an action against one of the defendants; in other words, that the number of the defendants sued, and the allegation that they conspired together, do not authorize the plaintiff to maintain his action, when he could not maintain it against one defendant, if sued alone. In Wellington v. Small et al., 3 Cush. 149 [50 Am. Dec. 719], it is said by the Supreme Court of Massachusetts: 'As to the first of these averments (that there was a conspiracy), it may be remarked that if an act is done by one alone, which is no cause of action, a like act is not rendered actionable by being done in pursu

in the nature of a conspiracy, the gist of the action is not the conspiracy (as it is an indictment, and was in the old writ of conspiracy), but the damage done to the plaintiff.' The only use in charging the conspiracy is to make the defendants responsible for the acts of each other, done in pursuance of the common design."

[5] But it is clear from the authorities, and the Hunt Case, supra, so holds, that the invocation of the rules as to actions on the case for conspiracy does not relieve plaintiff from the duty of stating a cause of action against Briggs, one of the alleged conspiring tort-feasors. For, says the above excerpt:

"The conclusion would seem to be unavoidable that the action can only be sustained against several, where the acts complained of would sustain an action against one of the defendants; in other words, that the number of the defendants sued, and the allegation that they conspired together, do not authorize the plaintiff to maintain his action when he could not maintain it against one defendant, if sued alone." (Italics are ours.)

This is apparently in line with the holdings of all jurisdictions (De Wulf v. Dix, 110 Iowa, 553, 81 N. W. 779; Kimball v. Harman, 34 Md. 407, 6 Am. Rep. 340; Boston v. Simmons, 150 Mass. 461, 23 N. E. 210, 6 L. R. A. 629, 15 Am. St. Rep. 230; Bohn Mfg. Co. v. Hollis, 54 Minn. 223, 55 N. W. 1119, 21 L. R. A. 337, 40 Am. St. Rep. 319; Martens v. Reilly, 109 Wis. 464, 48 N. W. 840; Adler v. Fenton; 24 How. [U. S.] 407, 16 L. Ed. 696), and the reason for the rule, to wit, that (absent a statute otherwise providing) a conspiracy of itself furnishes no cause of action, because from the mere forming of it no possible damages can accrue, is not far to seek.

[6] Judged by this rule, the petition here is bad. It charges libels published and slanders uttered at divers times to different audiences and to different readers through different media and under different circumstances, all tangled, mixed, and blended in one count. This is bad pleading. Flowers v. Smith, 214 Mo. 129, 112 S. W. 499; Michael v. Matheis, 77 Mo. App. loc. cit. 562.

[7] Besides, this petition violates the statutory rule which requires "a plain and concise statement of the fact constituting a cause of action" (section 1794, R. S. 1909), and while conceding that this defect is not one for which, by the strict letter of the statute (section 1800, R. S. 1909), a demurrer will lie, yet it has been said that:

"The pleader is not allowed now, any more than formerly, by inserting doubtful or uncertain allegations in a pleading, to throw upon his adversary the hazard of correctly interpreting its meaning." Sidway v. Live Stock Co., 163 Mo. loc. cit. 373, 63 S. W. 714.

Considered from any angle, we are convinced that the petition is bad on demurrer; that it is incoherent and presents no tangible or understandable issues; that it is "without form and void” (Genesis 1:2), and violates almost every known rule of good pleading: and that the judgment sustaining a demurrer

to it was just and right and ought to be af- set aside, and new judgment entered against firmed. defendant.

Let this be done.

WALKER, P. J., and BROWN, J., concur.

STATE ex rel. SAGER, Circuit Atty., v.
POLAR WAVE ICE & FUEL CO.

(No. 16175.)

Nagel & Kirby, McDonald & Taylor, and Jacob Chasnoff, all of St. Louis, for appellant. Elliott W. Major, Atty. Gen., and Chas. G. Revelle, Asst. Atty. Gen. (Loomis C. Johnson, of Chicago, Ill., of counsel), for respondent.

GRAVES, J. This is an action in quo war

(Supreme Court of Missouri, Division No. 1. ranto, instituted and tried in the circuit April 2, 1914. Rehearing Denied

June 30, 1914.)

1. MONOPOLIES (§ 26*)-OUSTER OF CORPORATION- - INFORMATION IN QUO WARRANTOSUFFICIENCY.

An information in proceedings to oust a corporation, formed to take over the business of seven existing companies which were furnishing ice in St. Louis, stock of the new corporation being given in exchange for that of such companies, was sufficient to charge that the incorporation of defendant was violative of the anti-trust statute (Rev. St. 1909, § 10,301, formerly Rev. St. 1899, § 8966), where it alleged that the organization of defendant as a corporation "was and is an arrangement and combination which tends to lessen full and free competition in the purchase and sale of ice."

[Ed. Note.-For other cases, see Monopolies, Cent. Dig. § 17; Dec. Dig. § 26.*] 2. MONOPOLIES (§ 17*)—UNLAWFUL COMBINATION-ORGANIZATION OF CORPORATION.

Where a corporation was organized to take over the business of seven corporations engaged in furnishing ice in St. Louis, under an arrangement whereby the new corporation, though not purchasing the assets of the seven companies in the usual way, accomplished the same result by exchanging its stock for stock in the other companies, thereby combining the strength of all with the view of stifling competition, its organization and incorporation was a violation of the anti-trust statute (Rev. St. 1909, § 10,301, formerly Rev. St. 1899, § 8966), prohibiting unlawful arrangements with a view of lessening competition.

[Ed. Note. For other cases, see Monopolies, Cent. Dig. § 13; Dec. Dig. § 17.*]

3. MONOPOLIES (§ 26*)—UNLAWFUL COMBINATION-OUSTER OF CORPORATION — - JUDGMENT -APPEAL.

court of the city of St. Louis. The informa-
tion is challenged, and had best be set out.
The cause was tried before a referee, who
recommended judgment for the defendant.
Upon exceptions filed by the state, the trial
court disapproved the, findings and recom-
mendations of the referee, and made find-
ings of its own, and entered a judgment oust-
ing the defendant of all its charter rights.
From this judgment the defendant has ap-
pealed. The information reads:
"State of Missouri, City of St. Louis—ss:
In the Circuit Court, City of St. Louis. June
Term, 1906.

The State of Missouri, at the Relation of Ar-
thur N. Sager, Circuit Attorney, Plaintiff, v.
Polar Wave Ice and Fuel Company, a Cor-
poration, Respondent.

Quo Warranto.

"Comes now Arthur N. Sager, circuit attorney, within and for the city of St. Louis, who brings this action on behalf of the state of Missouri, and for cause of action against the respondent, informs the court that the respondent, Polar Wave Ice & Fuel Company, is a corporation organized under the laws of the state of Missouri, and particularly article IX of chapter 12 of the Revised Statutes of 1899; that respondent company was organized on the 18th day of February, 1903, and by its charter was authorized and empowered to manufacture, and buy and sell ice at wholesale and retail, and do all things and acts consistent with such right and authority.

"That this information further states that respondent company, as alleged in its articles of incorporation, was organized with a capital stock of one million eight hundred thousand (1,800,000) dollars, which was alleged in its said Where, on appeal in proceedings in quo articles of incorporation to have been bona fide warranto to oust a corporation organized to subscribed and paid in full in lawful money of take over the business of seven companies enthe United States, and that the said sum has gaged in furnishing ice in St. Louis, it appears been placed at the time in the custody of the that the circuit court judgment ousting defend-persons therein named as the board of directors ant of all its charter rights is too drastic, in that, since the original corporations have surrendered their charters and the property cannot go back to them, enforcement of the judgment will take out of the ice business in the city a large portion of the capital invested therein and withdraw a very substantial competition from the trade, such judgment, though authorized by Rev. St. 1909, § 10,304 (Laws 1907, p. 377), will be changed to one of conditional ouster and a fine.

[Ed. Note. For other cases, see Monopolies, Cent. Dig. § 17; Dec. Dig. § 26.*]

Appeal from St. Louis Circuit Court; George M. Shields, Judge.

Quo warranto by the State, on the relation of Arthur N. Sager, Circuit Attorney, against the Polar Wave Ice & Fuel Company. From a judgment nisi ousting defendant of all its charter rights, it appeals. Judgment nisi

of respondent company; that the names of the several persons who subscribed to the capital stock aforesaid, and the amount of the stock subscribed by each is as follows:

"Charles W. Whitelaw, 1,200 shares preferred, and 2,400 shares of common, stock; Christopher Muckermann, 1,200 shares of preferred, and 2,400 shares of common, stock; Ignatius C. Muckermann, 1,200 shares of preferred, and 2,400 shares of common, stock; John C. Muckermann, 1,200 shares of preferred, and 2,400 ning 1,200 shares of preferred stock and 2,400 shares of common, stock, and Herman E. Penshares of common stock, making the entire capital stock of said company; that the foregoing persons, to wit, Charles W. Whitelaw, Christopher Muckermann, Ignatius C. Muckermann, John C. Muckermann, and Herman E. Penning, were named in the said articles of incorporation as the directors of said corporation to act as such for the ensuing year, to wit, until Febru ary 13, 1904, and as the persons in whose custody the one million eight hundred thousand

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes