MARRONE v. WASHINGTON JOCKEY CLUB

MARRONE v. WASHINGTON JOCKEY CLUB. ERROR TO THE COURT OF APPEALS OF THE DISTRICT Oi-COLUMBU. No. 59. Argued February 28, 1913 Decided March 10, 1913. The rule commonly accepted in this country man the English cases is that a ticket to a place of,entertainment for a specified period does not- create a right in rem. A contract binds the person of the maker, but -doe-* not create an interest in the property it concerns unless iralso operates as a conveyance; a ticket of admission cannot have sricn opeei as-u is not under seal and by common understanding it does not purport to have • that effect. Specific performance of rights claimed under a mere •ticket of admission to property cannot be enforced by sejí-heip» tne holder refused admission must sue for the breach.' While there might be an irrevocable right, of entry under a contract incidental to a right of property in land or in goods thereon, where, the contract stands by itself it must be a conveyance or a mere revocable license. 35 App. D. C. 82, affirmed. The' facts, .which involve the ‘ -ights, of the purchaser • of a ticket to a race track, and liability for his ejection therefrom, are stated in the opinion. . Mr. Lorenzo A. Bailey, witn whom Mr. George A. Pre-vost was. oh the brief, for plaintiff in error: A conspiracy, for the purposes of a civil action, is a combination of two or more persons by some concerted action to accomplish any purpose by unlawful means or an unlawful purpose by any means. Karges Furniture Co. v.. Amalgamated Woodworkers’ Union, 105 Indiana, 421. It may be a verbal agreement or undertaking, or a .scheme evidenced by the action of the parties. Franklin-Union v. People., 220 Illinois, 355. Any conspiracy the object of which is to wrongfully or maliciously injure another in business, trade, or reputation, is actionable. Although in criminal conspiracy the combination is the gist of the offense, in civil conspiracy damage is the gist and not the combination itself. Eddy on Combinations, §§ 253, 371, 373. The evidence of conspiracy is,generally, from the nature of the case, circumstantial. It is not necessary to prove that the defendants came together and actually agreed, in terms. Greenl. Ev. (Redf. Ed.), § 93; 8 Cyc. G85. The record here shows the defendants acted in concert in ruling off the plaintiff and also in asserting, as grounds for ruling him off, that the horse was stimulated, thereby implying that he was responsible for it, which assertion was wholly false and the defendants had no reason even to suspect it to be true. J In an action for conspiracy to wrongfully expel plaintiff from the society, whether the members acted fairly and in good faith in finding that a letter written by plaintiff was in violation of the constitution and laws of the order, was for the jury. St. Louis & S. W. Ry. Co. v. Thompson. 113 S.’ W. Rep. 144. The third and fourth assignments of error are based on the fifth exception to the action of the court in taking the case from the jury and present several questions of law. As to the rights acquired by the plaintiff by the purchase of his ticket, see Taylor v. Waters, 7 Taunt. 374, decided in 1817; Wood v. Leadbitter, 13 M. & W. 838; McCrm v. Marsh, 12 Gray, 211; Burton v. Sckerpf, i Allen, 133; Drew v. Peer, 93 Pa. St. 234. The New Yprk courts emphatically repudiate the doctrine of Wood v. Leadbitter. McGoverney V; Staples, 7 Alb. L. J. 219, holds that an action for assault and battery lies for forcible expulsion of a season ticket holder from the fair grounds of an agricultural society. And see also MucGowan v. Duff, 12 N. Y. 680; Cremore v. Huber, 18 App. Div. 231; -Smith v. Leo, 92 Hun, 242; Collision v. Hayman, 183 N. Y. 260; Wandell’s Law of the Theater, 221; Blackett’s Theatrical Law, 166; People v. King, 110 N. Y. 418, 428; Pearce v. Spalding, 12 Alo. App. 141; Dreenberg v. Western'Turf Assn., 140 California, 357. The. establishment of the doctrine referred to demonstrates the fallacy of the theory of revocability for which Brackett and Wandell contend. People v. King, 110 N. Y. 4 IS; Baylies v. Curry, 128 Illinois, 287; Joseph v. Bird-well, 28 La. Ann. 382; and see Article in 12 Cent. L.. J. 390. A license, founded upon a valuable consideration, to enter the land of another, is not revocable at the will, of the licensor. Ditch Co. v. Ditch Co., 10 Colo. App. 276; Burrow v. Terre Haute R. Co., 107 Indiana, 432; 28 A. & E. Enc. 124. The condition printed on the ticket, that the decision of an officer of the association shall be conclusive is inapplicable in this case, in which the decision was ex parte- and in flagrant disregard of the plaintiff's right to have an inquiry as requested by him. The conditions upon which the defendants could refuse to admit plaintiff are specified on the back of the ticket. The good faith of the stewards in their decision is directly impeached and put in issue in this suit and, upon all the evidence, was a question of fact for the jury. St. Louis & S. W. Ry. Co. v. Thompson, 113 S. W. Rep. 144. Mr. Charles L. Frailey with whom Mr. A. S. Worthing-ton, was on the brief, for defendants in error. [MAJORITY — Mr. Justice Holmes] Mr. Justice Holmes delivered the opinion of the court. This is an action of trespass for forcibly preventing the plaintiff from entering the Benningh Race. Track in this District after he had bought a ticket of admission, and for doing the same thing, or turning him out, on the following day just after he had dropped his ticket into the box. There was also a count charging that the defen da ntr conspired to destroy the plaintiff’s reputation and that they excluded him on the charge of having 'doped’ or drugged a horse entered by him for a race a few days Ire-fore, in pursuance of such conspiracy. But as no evidence of a conspiracy was introduced and as no more force was used than was necessary to- prevent the plaintiff from entering upon the rac.e track, the argument hardly went beyond an attempt to overthrow the rule commonly accepted in this country from the English cases, and adopted below, that such tickets do not create a right in rem. 35 App. D. C. 82. Wood v. Leadbitter, 13 M. & W. 838. McCrea v. Marsh, 12 Gray, 211. Johnson v. Wilkinson, 139 Massachusetts, 3. Horney v. Nixon, 213 Pa. St. 20. Meisner v. Detroit, Belle Isle & Windsor Ferry Co., 154 Michigan, 545. W. W. V. Co. v. Black, 75 S. E. Rep. 82. 85. Shubert v. Nixon Amusement Co., 83 Atl. Rep. 309. Taylor v. Cohn, 47 Oregon, 538, 540. People v. Flynn, 114 App. Div. 578, 189 N. Y. 180. We see no reason for declining to follow the commonly accepted rule. The fact that the purchase of the ticket made a contract is not enough. A contract binds the person of the maker but does not create an interest in the property that it may.concern, unless it also operates as a conveyance. The ticket was not a conveyance of an interest in the race track, not only because it was not under seal but because by common' understanding it did not purport to have that effect. There would be obvious inconveniences if it were construed otherwise. But if it did not create such an interest, that is to say, a fight m rem valid against the landowner and third persons, the holder had no right to enforce specific performance by self-help. His only right was to sue upon the contract for the bread). It is true that if the contract were incidental to a right of property either in the land or in goods upon the land, there might be an irrevocable right, of entry, but. when the contract stands by itself it must be either a conveyance or a license subject to be. revoked. Judgment affirmed.