Kinney v. Postal Telegraph-Cable Co.

KNIGHT, J.

The purpose of this action, as stated by plaintiff in the opening paragraph of his complaint, was to recover “damages, actual and punitive, suffered by him at the hands jointly of defendants herein, to-wit: the sum of three hundred thousand dollars ($300,000), for a joint, unlawful, criminal, wilful, oppressive and fraudulent confederation together and conspiracy on the part of all and each of the defendants herein directed against complainant and aimed, designed and intended to harass and oppress him and to do him intentional wrong and destroy and injure and dissipate his property and to deprive him of credit and the means of obtaining a livelihood, and to acquire his property without consideration or return, by said means.” Three of the ten defendants sued, namely, Postal Telegraph-Cable Company, a corporation, its Los Angeles superintendent and manager, W. W. Morrison and C. A. Holzer, interposed a general demurrer to the complaint, and it was sustained without leave to amend. Pursuant to the order so made judgment of dismissal was entered, from which plaintiff has appealed. The remaining seven defendants are residents either of New York or Canada, and so far as the record shows were not served with summons.

The action was filed and the appeal is presented by appellant

in propria persona.

The complaint and the exhibits attached thereto cover some 213 pages of the printed transcript. As stated by appellant in his brief, he “proceeds, at great length, by a recital of facts, to elucidate and explain the details of the conspiracy”; but an examination of the pleading shows that most of the matters set forth therein related to a controversy then existing between appellant and others which is wholly foreign to any charge made against these respondents. It appears therefrom that pursuant to an arrangement entered into between appellant and the defendant Peterson, a real estate broker residing in New York, the latter organized a corporation

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under the laws of Delaware, known as the Nova Scotia Live Stock & Development Company, Ltd., for the purpose of acquiring from the defendant Canada Permanent Mortgage Corporation of Halifax, Nova Scotia, under an installment contract, for a fixed price of $6,500, a 5,000-acre ranch situate in Nova Scotia, which formerly belonged to appellant and was sold at foreclosure sale to the mortgage corporation in liquidation of a loan of $8,000 made to appellant, which at the time of the foreclosure proceedings had been reduced to $6,000; the intention and expectation of appellant and Peterson being to resell the ranch, through Peterson’s efforts, for $100,000. After some of the installments on the purchase price had been paid to the mortgage corporation, part of the money therefor being furnished by appellant and part by Peterson, a dispute arose between appellant and Peterson as to the extent of the ownership of each in the corporate stock of said corporation, which eventually led to charges of trickery and fraud being made by appellant against Peterson; whereupon appellant, claiming to be the owner of fifty-one per cent of the stock of said corporation, served on Peterson notice of revocation of the latter’s authority to sell the ranch. Thereafter appellant made efforts to effect a sale thereof for $25,000, but up to the time this action was commenced he was unsuccessful in finding a purchaser. While this controversy was going on, and on September 26, 1927, appellant filed in the Los Angeles office of the respondent telegraph company, to be transmitted by “night letter”, a message addressed to the mortgage corporation at Halifax, for which he paid said telegraph company $1.20. The message read as follows : “Useless delaying for Peterson to pay Apply money sent by me immediately to payment September obligation. Have specific authority from Peterson do this Last two payments so made. Wire me care Postal—balance immediately Peterson has no title to fifty-one per cent Forwarding proofs attested by Peterson.” Appellant called at the telegraph office several times during the next three days to ascertain whether a response had been received to his message, but there was none; and on Sepetmber 29th he asked for a copy of the message he had sent, intending to preserve the same as evidence in the event the mortgage corporation should afterward deny having received it, but