because the shore inspector prevented him from depositing such material thereon. Barnard, P. J., dissenting.

2. SAME-PART PERFORMANCE-COMPENSATION.

Such contract being entire, with no provision for payment till the work is completed, the subcontractor can recover nothing for partial perform

ance.

Appeal from circuit court, Kings county.

Action by Richard Cronin and others against W. M. Tebo to recover damages for breach of a certain contract. From a judgment entered on a verdict directed by the court in favor of plaintiffs, and from an order denying his motion for a new trial on the minutes, defendant appeals. Affirmed.

For former report, see 17 N. Y. Supp. 650.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ. J. T. Marean, for appellant.

James C. Church, for respondents.

DYKMAN, J. The plaintiffs in this action made a contract with Maltby G. Lane to build certain bulkheads at Ft. Hamilton, the construction of which required an excavation in the ground, under water, for their reception. The defendant is engaged in the business of dredging, and, as the result of a conversation between one of the plaintiffs and the agent of the defendant, he made a written offer to the plaintiffs, of which the following is a copy.

"Brooklyn, June 13, 1887.

"I, the undersigned, propose and offer to excavate and dredge a trench seven hundred and seventy-five feet in length for crib bottom of thirty feet wide to the depth of twenty feet at mean low water, for the sum of twentythree hundred dollars; the material so dredged to be deposited inshore, so as not to interfere with said trench.

"Respectfully, yours,

"To R. Cronin & Sons."

W. M. Tebo, Bentley.

The proposition was accepted verbally, and the defendant was directed to proceed with the work, which he did in a few days thereafter. He was prevented by the shore inspector from dumping the material inshore, and carried the same to sea until about the 7th day of July, when he ceased to work, and did no more dredging thereafter. This action is for the recovery of damages sustained by the plaintiffs in consequence of the failure of the defendant to complete his contract, and for services in driving some piles. There seems to have been no dispute respecting the claim of the plaintiffs, but the defendant set up a counterclaim of $1,444.51 for the work he actually did under the contract. The counterclaim is based upon the theory that the contract secured to the defendant the right to dump the excavated material inshore; that it was the duty of the plaintiffs to furnish that place of deposit, under the contract, and, as they failed to perform that portion of the contract on their part, the defendant was justified in the abandonment of the work, and entitled to compensation for what he had done under the contract. The trial judge decided against the defendant, and directed a verdict in favor of the plaintiffs for $589.39. The defendant has appealed

from the judgment entered upon the verdict, and from the order denying a motion for a new trial upon the minutes of the court.

It is true that the last clause of the defendant's offer states that the material dredged was to be deposited inshore, and both parties intended and expected to have it so placed. Under all the circumstances, however, it cannot be assumed that the plaintiffs undertook to furnish the place designated as a dumping ground. The contract was formed by the acceptance of the defendant's offer. The plaintiffs made no stipulation, and in respect to the ground designated in the offer they could make none. They had no control over the place, and could grant no privilege in respect thereto. Their acceptance of the defendant's offer constituted an assent to the propositions contained therein, but they made no stipulation on their part. In the absence of an express undertaking, the law, in its interpretation of the transaction, implies an obligation on the part of the defendant to perform the services according to his proposition for the price named, and against the plaintiffs it implies a duty to allow the defendant to do the work, and pay him the price stipulated therefor. Such were the legal obligations of the parties. The contract was entire, with no provision for payment until the work was completed; and as the defendant abandoned the contract, and failed to perform it, he is entitled to no compensation for what he did. In respect to the new arrangement between the parties, upon which the defendant now insists, it is sufficient to say that it was not pleaded, and has no consideration for its support. Our view is justified by all the facts and circumstances surrounding the transaction. The defendant knew the plaintiffs were contractors to lay down the crib work for certain fillings. They had no control of the premises, and no more power to obtain permission to leave the material inshore than the defendant. He did not require them to furnish a place for the deposition of the excavated material, or to obtain permission to lay it down inshore. He merely said it was to be so laid down, and they assented, and so they were bound to make no interference in that respect. Our conclusion is that the proper disposition was made of the case, and the judgment and order should be affirmed, with costs.

PRATT, J., concurs.

BARNARD, P. J., (dissenting.) The plaintiffs' claim was not disputed. The only question presented is as to the defendant's counterclaim. One Lane owned water-front property at Ft. Hamilton. The plaintiffs are dock builders. The defendant is a dredger. The work which plaintiff's undertook to do for Lane was to build a bulkhead around the property. There was an existing bulkhead on the north side of the property, which had to be extended some 80 feet. and then to be continued south 775 feet, parallel to the shore, and then to the shore. The defendant was to dredge for the plaintiffs the 775 feet for crib bottom, 30 feet wide and 20 feet deep at mean low water. The dumping was to be inshore, so as not to interfere

with the trench. When defendant commenced his work, and proceeded to dump inshore, he was stopped by the shore inspector. The objection he made was that the dumping could not take place inshore until the pile work was put in for this 80-foot extension. That would have protected the trench, under the contract, and would have met the objection of the shore inspector. The plaintiffs promised to put down this 80-foot crib in extension of the old bulkhead in a few days, which they failed to do. The defendant continued to dredge and carry the material, and dump it at sea, at largely increased expense to him, until the plaintiffs finally refused to put it in, when the defendant left the work. Assuming all disputed facts in favor of the defendant, the case is one where the plaintiffs broke the contract, as amended after the shore inspector objected to the inshore dumping. The inspector assumed that the extension of the old bulkhead would protect the material dumped from being washed away by the tide, and the plaintiffs agreed to give place for inshore dumping by the completion of this dock extension. They did not do so, and the defendant quit the work on that account. The judgment should be reversed, and a new trial granted; costs to abide event.

(3 Misc. Rep. 582.)

DUEBER WATCH-CASE MANUI"G CO. v. E. HOWARD WATCH & CLOCK CO. et al.

(Supreme Court, Special Term, New York County. May 27, 1893.) CONSPIRACY-CIVIL ACTION-PLEADING.

A complaint alleged that defendants, who were engaged in a business similar to that of plaintiff, in furtherance of a conspiracy to ruin plaintiff, agreed not to sell any of their goods to any person who should deal in plaintiff's goods, and that notice of such agreement was given. Held, on demurrer, that the complaint sufficiently alleged damage to plaintiff, as well as the fact of a conspiracy.

Action by the Dueber Watch-Case Manufacturing Company against the E. Howard Watch & Clock Company; the American Waltham Watch Company; the Bay State Watch-Case Company; the Brooklyn Watch-Case Company; the Cheshire Watch Company; the Courvoisier-Wilcox Manufacturing Company; the Elgin National Watch Company; the Illinois Watch Company; the Keystone Watch-Case Company; the Seth Thomas Clock Company; James H. Noyes; Joseph Fahys, Henry F. Cook, and George E. Fahys, composing the firm of Joseph Fahys & Co.; George M. Bacon and Joseph M. Bates, formerly composing the firm of Bates & Bacon; Jacob Muhr and Simon Muhr, composing the firm of H. Muhr's Sons; and Frank Duhme, Charles Duhme, and one Galbreath, formerly composing the firm of Duhme & Co. The E. Howard Watch & Clock Company demurs to the complaint. Overruled.

For reports of other proceedings in this litigation, see 21 N. Y. Supp. 341, 342; 22 N. Y. Supp. 69, 1107; 55 Fed. Rep. 851.

Wilbur & Oldham, for plaintiff.

Sullivan & Cromwell, for defendants.

PATTERSON, J. This action is brought against many defendants, corporations, and individuals to recover damages for alleged wrongs committed by each or all of them, in tortiously diverting from the plaintiff its trade, or some part thereof, and inducing its customers to desert it, by certain alleged threats and intimidation. The questions to be considered arise on the demurrer of one of the defendants, only, a corporation, and those questions relate to the sufficiency of the averments of the complaint, as constituting a cause of action, under the peculiar facts therein set forth. In substance, the averments are that the defendant demurring and others were engaged in a business similar to that carried on by the plaintiff, and that the defendants entered into a conspiracy to break up or ruin the plaintiff's business, and that to accomplish such result an agreement was made among them that they would not sell any goods manufactured by them, or either of them, to any person, firm, association, or corporation who thereafter shall buy or sell goods manufactured by the plaintiff; that the defendants, through an agent, or agents employed by them, gave notice of this agreement to dealers in the articles referred to, who had previously dealt with manufacturers of the same articles, including the plaintiff; that many of such dealers thereupon refrained from buying goods from the plaintiff; that the defendants did, in fact, after the notice was given, refuse to deal with persons who had dealt with the plaintiff, and informed such persons that if they would promise not to buy or sell, or in any wise deal in, the wares manufactured by the plaintiff, then, and so long as such promise was kept, they might deal with the several defendants, but not otherwise; that the agree ment among the several defendants also embraced a feature of enhancing prices, and was made with the intention of coercing the plaintiff to join them in a monopoly, and to crush competition; that there was a conspiracy and combination to ruin the plaintiff's business unless it would unite with the defendants in an unlawful scheme; that, in consequence of the refusal of the plaintiff to confederate with the defendants in the promotion and furtherance of this alleged illegal scheme, the defendants and their agents have placed the plaintiff under a ban, have successfully intimidated its customers, and diverted its business, and caused it enormous losses.

The difficulty with the demurrer in this case is that it admits facts which, as they are stated in the complaint, make out a good cause of action. Whatever the real merits of the controversy may be, all that is now before the court is as to what is conceded by the demurrer to be the actual state of the case between the parties, as presented by the complaint. It is admitted, for instance, that the defendants (and the demurrant among them) did enter into an agreement, and did attempt to coerce the plaintiff to combine with them in the project to control the market, and create a monopoly, and that on its failure to do so they struck at the life of the plaintiff's business, by refusing to deal with any one who did business with it. This is an admission, not only of acts, but, in a sense, of loss or damage in consequence of such acts.

On

the allegations of the complaint, therefore, admitted by the demurrer, the action is maintainable. There can be no doubt of the rule of law stated by the counsel for the defendants,-that in a civil action the mere fact of a conspiracy existing is not sufficient to constitute a cause of action. In a general sense, that is true. It has often been so held, and the reason of the rule is fully stated by Chief Justice Nelson in Hutchins v. Hutchins, 7 Hill, 104, which is recognized as a leading case on this subject, both in this country and in England. The trespass or wrong or injury is the gravamen of the so-called civil action of conspiracy; and in Buffalo Lubricating Oil Co. v. Standard Oil Co., 106 N. Y. 669, 12 N. E. Rep. 825, it is said that damages caused by the conspiracy may be recovered against a corporation, and so far as this defendant is concerned that is just the case. The gist of the action is not the confederation, but the wrong. The demurring defendant is a corporation, and the damage claimed to have been sustained by the plaintiff is attributed to its wrongful action in connection with the other defendants. The suggestion that no damage appears unless there is a slander of, or some specific statement made affecting the character of, the wares of the plaintiff, or something affecting its solvency, is not a sound distinction. The question is, on the whole complaint, whether an actionable wrong was done by all or any of the defendants, and that requires the consideration of another argument advanced by the learned counsel for the demurrant in his presentation of the case. The claim is made that any dealer or associated dealers have a right to refuse to sell or buy from any particular person. That is an incontrovertible rule of law, in its general expression. There may be a right to fix prices, and crush out competition, in a legitimate business effort to do that, and nothing more, and to combine for that purpose, as was held in Bowen v. Matheson, 14 Allen, 499, and in the recent case of Steamship Co. v. McGregor, 21 Q. B. Div. 544. But these cases are plainly distinguishable from this. In the Steamship Case, Lord Coleridge formulated the rule applicable to these causes. He says:

"If the combination is unlawful, then the parties to it commit a misdemeanor, and are offenders against the state; and if, as the result of such unlawful combinations and misdemeanor, a private person receives a private injury, that gives such person a right of private action."

By the statutes of this state it is a misdemeanor to commit any act injurious to trade or commerce. Pen. Code, § 168, subd. 6. To combine to create a monopoly and to ruin all who will not unite in the undertaking, is certainly injurious to trade and commerce; and in the case at bar, such, according to the allegations of the complaint, is what is charged. Here there is no mere combination to drive a competitor from the market by simply exercising a legal right. The real basis of the action is that, because the plaintiff would not unite with the defendants in doing an illegal thing, they, or some of them, willfully and maliciously confederated to ruin its business, and that some or all of them have partially succeeded in so doing. It is not a case, as the complaint stands, of the freedom of