Jay C. EVANS
v.
J.O. MAYBERRY, Donald Mayberry, Earl Mayberry and L.L. Brooks.
Supreme Court of Tennessee.
March 11, 1955. Rehearing denied June 15, 1955. Second Petition for Rehearing denied June 15, 1955.William W. Bell and Joseph L. Lackey, Nashville, for plaintiff in error.
Tyree B. Harris, III and E.D. Jackson, Nashville, for defendants in error.
Second Petition for Rehearing denied June 15, 1955. See 279 S.W.2d 705.
TOMLINSON, Justice.
G.E. Evans made an oral contract to sell his brother, Jay C. Evans, certain real estate. Thereafter G.E. Evans sold this real estate to another. Then Jay C. Evans instituted this action against these defendants on the allegation that they induced his brother to so sell this land. Treble damages were sought under the authority of Code Section 7811.
Defendants demurred on the ground that an action in damages does not lie for inducing the breach of an oral contract to sell real estate. The case is here upon the appeal in error of Jay C. Evans from the action of the Court in sustaining this demurrer and dismissing his suit.
The contract between the two brothers to sell and buy, respectively, this land was voidable, as between them, under the statute of frauds because it was an oral contract. It is insisted, however, by plaintiff-in-error that this statute is available only to the actual parties to the oral contract, and that third parties are not entitled to plead it; hence, that the Trial Court erred in sustaining the demurrer, in effect, pleading that statute.
We think the determinative question is whether there is applicable to a contract which is unenforceable between the parties *692 under the statute of frauds the doctrine that a person who knowingly induces one of these parties to avoid such contract is liable to the other party to the contract for damages.
Cases upon the question stated, or annotations thereof, are gathered in 84 A.L.R., page 48-49 and 26 A.L.R.2d 1242-1243. As demonstrated by the cases there discussed, the Courts are divided on the question. Perhaps the clear weight of authority, as reflected by these cases, is that the doctrine does apply so as to render a third party liable, notwithstanding the fact that the contract with which the third party intermeddled was unenforceable between the parties to that contract.
Apparently the Courts which take the minority view do so upon the theory that "if the party to such oral agreement would not be liable for noncompliance therewith, it is legally incomprehensible that another person would be liable for procuring him not to perform". Davidson v. Oakes, 60 Tex.Civ.App. 269, 128 S.W. 944; 84 A.L.R. 49. It must be conceded that it would be most difficult to assail, on a logical basis, this reasoning upon which the minority view is predicated.
In Watts v. Warner, 151 Tenn. 421, 269 S.W. 913, and being the only Tennessee case we find on the point, the Piggly-Wiggly Stores induced Mrs. Warner to breach her oral contract to lease certain realty to Watts. Watts made each of them a defendant to an action for damages. Each by demurrer plead the statute of frauds. Both demurrers were sustained.
One contention of Mrs. Watts, on appeal, was that Piggly-Wiggly, the third party, was not entitled to plead the statute of frauds. It was held by this Court that in as much as the demurrer was good as to Mrs. Warner, a party to the voidable contract, therefore "it matters not whether Piggly-Wiggly Stores, Inc. was entitled to plead the statute of frauds or whether this defendant interposed any defense at all. The demurrer of each co-defendant went to the entire case, and required that the bill be dismissed"; that "no judgment could be based against a defendant for interference with an unenforceable repudiated contract."
The holding in Watts v. Warner, supra, is that Mrs. Warner could not be made to respond in damages for avoiding a contract voidable under the statute of frauds; hence, that Piggly-Wiggly could not be made to respond in damages for inducing her to avoid that contract.
The only distinction between Watts v. Warner and the case at bar is that in the Watts case the contracting person who avoided the voidable contract was made a party to the suit for damages, whereas in the case at bar the contracting person who avoided the voidable contract was not made a party to the suit for damages. That is a distinction without a difference. Piggly-Wiggly was not excused from liability because Mrs. Warner was a party to the suit. It was held not liable because the contract was unenforceable as to Mrs. Warner whom Piggly-Wiggly had induced to avoid it. As a matter of fact, Mrs. Warner was not a party to the suit at the time Piggly-Wiggly was let out in that the suit as to her had been dismissed by the sustaining of her demurrer. Watts v. Warner is conclusive here in support of the judgment of the Circuit Court.
Affirmed with costs.