Plaintiff assures us in advance that his attempt is to state a cause of action in tort. Examining the complaint *335in that aspect then: It is at once obvious that none of the acts ■alleged against defendant is in and of itself prohibited by any .law. At most, it is alleged that he did not stay at his home through several days during which plaintiff desired to make tender, or, infexentially, that he went somewhere else; also that he refrained from going to his attorney’s office on a certain day promised. Obviously all such acts were entirely lawful in and of themselves.- No( law prohibited him from leaving home nor commanded his attendance at his attorney’s ■office. If he owed any duty in those respects, it was one imposed by his own 'promise or contract and not by law. The fact that, inconvenience'or actual pecuniary injury results to another from such lawful acts does not transform them into ■torts. It is but a case of damage without legal wrong — dam-num absque injuria. Whalon v. Blackburn, 14 Wis. 432.
But the complaint alleges that these' acts, lawful in themselves, were done maliciously — that is, with the express purpose of causing plaintiff damage — and therefore liability results. Very little aid is given by either counsel on this essential question whether a lawful act becomes a tort by reason of malice or intent to injure. Upon this question there is a sharp conflict of authority throughout the courts of the country. The principle is asserted by perhaps the majority of those authorities “that malicious motives make a bad case worse, but they cannot make that wrong which in its own essence is lawful.” Dawson v. Kemper, 32 Weekly Law Bull. 15; Jenkins v. Fowler, 24 Pa. St. 308. A copious collection of authorities on both sides will be found in the note to Letts v. Kessler, 40 L. R. A. 117. However, that subject was pre-■sentedto this court in Metzger v. Hochrein, 107 Wis. 107, 83 N. W. 308, under the aspect of a “spite fence” impairing plaintiff’s enjoyment of his residence property. The conflictr ing authorities were carefully considered, and from that conflict this court allied itself with those-holding that mere malice or motive to injure could not impose'liability for a lawful act. *336That case has been treated as final authority for that proposition in Sullivan v. Collins, 107 Wis. 291, 83 N. W. 310; Marshfield L. & L. Co. v. John Week L. Co. 108 Wis. 268, 274, 84 N. W. 434; Huber v. Merkel 117 Wis. 355, 363, 94 N. W. 354. We deem the rule of Metzger v. Hochrein now settled in Wisconsin, and that malicious intent to injure cannot transpose a lawful act into a tort, and hence that the complaint fails to state a cause of action ex delicto.
2. The conclusion reached in response to plaintiff’s own-construction of his complaint is, however, not conclusive. A demurrer challenges the sufficiency of the complaint to state-any cause of action, and must not be sustained in face of one-which does by liberal construction state facts from which any liability results, although not for some or all of the damages sought to be recovered. Bieri v. Fonger, 139 Wis. 150, 120 N. W. 862. From the present .complaint it clearly appears that defendant was under a contractual duty to the plaintiff none the less because such duty had been declared and defined by the judgment of a court. That contract required defendant to convey to the plaintiff certain land upon payment of certain money within a defined time. It imposed upon the plaintiff a duty to the defendant to make such payment or at least tender to him personally, for the conveyance was to be cotemporaneous, and such eotemporaneousness was doubtless necessary to the raising of the money to be paid. From a contract imposing such duty on the plaintiff there resulted by necessary implication the agreement on defendant’s part to do no act which would render such payment or tender impossible. This upon the general principle that he who by mutual contract confers on another a right or imposes a duty impliedly agrees not to defeat that right or make impossible the performance of that duty by any affirmative acts of his own. Manning v. Galland-Henning P. M. D. Mfg. Co., ante, p. 199, 124 N. W. 291; Eliot Nat. Bank v. Beal, 141 Mass. 566, 569, 6 N. E. 742. By this complaint it is alleged that the acts of *337defendant were in fact done for the express purpose of preventing the plaintiff from tendering or paying the money and acquiring his rights, that they were effective to that end, and that damages of various sorts resulted to him. These facts of themselves are sufficient to show a breach of contract and resulting damages, unless indeed it appears by other allegations of the complaint either that damages did not necessarily result from defendant’s breach of his contract duty, or that they were not such as were within reasonable contemplation of the parties at the time of making the contract. Hadley v. Baxendale, 9 Exch. 341; Guetzhow v. Andrews, 92 Wis. 214, 219, 66 N. W. 119; Lippert v. Saginaw M. Co. 108 Wis. 512, 84 N. W. 831.
It is contended by respondent that even wilful evasion by defendant of payment or tender could not make the damages alleged unavoidable, for the reasonThat plaintiff might have tendered directly to the attorney of record in the suit adjudging these contract duties. It does not expressly appear that there was such an attorney accessible to plaintiff; but, apart from that consideration, it might well develop' by proof to be offered in support of this complaint that the inability of the attorney to respond to such tender by the delivery of a conveyance rendered that method practically inefficient to protect plaintiff’s rights by reason of the necessity of a conveyance of the property cotemporaneously with the payment to enable security for money needing to be borrowed in order to make legal tender. We do not in this connection decide, however, that the general authority of an attorney of record, which is held in some cases to extend to the collection of a debt, and by statute extends to the release of a mere money judgment (sec. 2908, Stats. 1898; Flanders v. Sherman, 18 Wis. 575), also extends .to the acceptance or refusal of a tender or payment under such a judgment as this. Again, it is suggested, though not argued, that plaintiff might'have paid the money into court and fixed his rights. No statute or authority is cited to *338support tiie proposition, that one commanded by a judgment to pay money- to bis adversary can fully satisfy that command by payment to any court officer, sheriff, or clerk, in absence of some further action by the court authorizing such payment or tender upon grounds arising subsequent to the judgment, and we have found none. Further, however, the same considerations might render such a privilege, if it existed, ineffective in avoidance of damages as those we have mentioned in the case of tender to the attorney.
It is also suggested that plaintiff, instead of suffering the loss of his bargain and alleged consequent damage of some $9,000, might have applied to the court to prescribe some means of payment and tender irrespective of defendant’s conduct. We have no doubt that when defendant -breached his contract a court might, upon a showing of such fact, either on the foot of the existing judgment or in a new suit in equity, have protected plaintiff against the forfeiture, and prescribed some equivalent method for making payment of the purchase price; but the facts upon which to base such an application could not, under the circumstances- of this complaint, affirmatively appear until the period for payment expired, and although the complaint alleges that plaintiff had & period of some six or seven days within which the full performance of the judgment on both sides might have saved him from the alleged loss of his bargain, it is a question of fact whether it was then possible to seek and obtain relief from a court so as to avert that loss. In any event, however, the breach of the contract, when completed, gave rise to a right of action for at least nominal damages, and it is apparent that, even if plaintiff might have avoided the larger damages by some court procedure, he could not take that court procedure without expense ; so that he must suffer some actual damages in the effort to avoid still more. Of course we do not decide as a matter of law that the lost profits of plaintiff’s alleged resale of the land were themselves proper measure of the damages recover*339■al^le upon breach, of contract. That question involves doubtful rules of law, and its answer might well depend upon facts provable under the complaint significant upon the contemplation of the parties at the time of the making of their contract. We, however, deem, it clear that the complaint does state a breach of contract by the defendant with a showing of some damages unavoidably suffered by the plaintiff as a result, which may appear by proof to have been within the reasonable contemplation of the parties at the time the respective contract duties were assumed.
By the Gourt. — Order sustaining the demurrer is reversed, •and cause remanded for further proceedings according to law.