#### WILLIAM C. HOLDER and Wife, ILA K. HOLDER, v. ATLANTIC JOINT-STOCK LAND BANK OF RALEIGH.

(Filed 20 March, 1935.)

1. Contracts *G*a — Procurement of breach of contract by third pei'son held lawful in this case and was therefore damnum absque injuria.

Defendant mortgagee instituted foreclosure proceedings against plaintiff mortgagor and the purchaser of the equity of redemption who had assumed the deed of trust, the purchaser of the equity having defaulted in payment. Prior to confirmation of the sale, plaintiff, in order to be in a position to make title to the property, obtained an agreement from the purchaser of the equity to surrender the land to plaintiff upon cancellation of notes executed by him to plaintiff in part payment of the equity of redemption, and plaintiff, with knowledge of defendant, negotiated for private sale of the land and obtained a prospective purchaser who agreed to buy the land from plaintiff and make a cash payment sufficient to pay delinquent installments due defendant, assume defendant’s deed of trust, and execute a second mortgage to plaintiff. Thereafter defendant induced the prospective purchaser to breach his contract with plaintiff by advising him that plaintiff could not convey good title, and promising that defendant would acquire title upon completion of the foreclosure proceedings and would sell the land to the prospective purchaser at a price lower than that agreed upon with plaintiff, and' at a profit to defendant. Plaintiff mortgagor instituted this action upon allegations of wilful, wrongful, and malicious interference with the contract between him and his prospective purchaser. There were no allegations of slander of title, fraudulent mis-rexoresentations to the prospective purchaser, or breach of contract with plaintiff to cooperate with him in the sale of the land. *Held):*Defendant’s motion’ as of nonsuit was properly allowed, the procurement of breach of the contract by the prospective purchaser being lawful and therefore *damivum absque injuria.*

2. Same — Malicious procurement of breach, of contract is not actionable when such procurement is lawful.

In order for a cause of action to lie against a competing third party for procuring the breach of a contract by one of the contracting parties it is necessary for such procurement to be unlawful and wrongful, since the law affords no protection against lawful competition, however malicious, the lawful procurement of the breach of the contract being *damnum absque injuria.*

3. Trial D a—

The failure to appeal from judgment overruling a demurrer to the complaint does not preclude defendant from entering a motion for nonsuit, since a demurrer is addressed to the pleadings and a motion of nonsuit is addressed to the evidence.

Appeal from *Moore, Special Judge,*at March Term, 1934, of Wake.

Affirmed.

*39At tbe conclusion of tbe plaintiffs’ evidence tbe defendant’s motion for a judgment as of nonsuit was allowed, and tbe plaintiffs excepted and appealed to tbe Supreme Court, assigning errors. Tbe facts are set forth in tbe opinion.

*J. M. Broughton and W. H. Yarborough, Jr., for plaintiffs, appellants.*

*McLean & Stacy and I. M. Bailey for defendant, appellee.*

ScheNcic, J.

Construing tbe evidence most favorably to tbe plaintiffs, tbe facts are substantially as follows:

In tbe month of January, 1925, tbe *feme*plaintiff was tbe owner of a tract of land located in St. Mary’s Township, Wake County, consisting of 66 acres. Under date of 2 January, 1925, she, with her husband, executed a deed of trust on said land to tbe defendant land bank to secure a loan of $2,000, and on 14 January, 1925, they conveyed tbe land to W. 0. Fuller and bis wife, Fannie G. Fuller, and as a part of tbe consideration therefor tbe said Fuller and bis wife assumed tbe payment of tbe loan notes and deed of trust theretofore given to tbe defendant land bank, and also executed to tbe plaintiffs promissory notes in tbe aggregate of $3,000 securing tbe same with a deed of trust on said land. Thereafter, in tbe year 1931, tbe purchasers, Fuller and bis wife, defaulted in tbe payments to tbe land bank and foreclosure proceedings were instituted by tbe bank against tbe plaintiffs and against Fuller and bis wife in tbe Superior Court of Wake County. While tbe foreclosure proceedings were pending and before tbe order of confirmation of sale therein was made, tbe plaintiffs, with tbe knowledge of tbe defendant, negotiated for a private sale of said land to one Pascal Barber and bis wife, Allie Barber, and tbe said Barber and wife contracted and agreed to purchase said land by making a cash payment in an amount sufficient to pay all tbe deferred installments on tbe loan to tbe land bank and to cover all costs and expenses in connection with tbe foreclosure proceedings, and agreed in addition thereto to assume tbe payment of tbe remaining balance of $1,829.12 due tbe land bank, and to deliver to tbe plaintiffs notes aggregating $1,856.20 covering tbe balance of tbe purchase price and to secure said notes by a mortgage on said property subject to tbe land bank deed of trust. When W. O. Fuller and wife defaulted in payment of tbe land bank indebtedness and in tbe indebtedness to the plaintiffs they agreed to surrender tbe land to tbe plaintiffs in consideration of their notes being canceled, thus putting tbe plaintiffs in a position to make title to tbe property. And, further, after tbe plaintiffs bad reached an agreement with Pascal Barber and bis wife, and after said Barber and bis wife bad placed themselves in a position to comply with tbe terms of said agreement, tbe defendant land bank, *40with full knowledge of the negotiations between the plaintiffs and the said Barbers, through its agents, informed Barber and his wife that the plaintiffs could not give them title to the land, and if they would abandon their negotiations with the plaintiffs and wait a few days until the land bank acquired the property through the pending foreclosure proceedings, the land bank would sell them the land at a price of at least $1,000 less than the price at which the plaintiffs had agreed to sell them the same, and that in this manner the land bank would make a profit and at the same time save the prospective purchasers a substantial amount. Pascal Barber and his wife were induced by such representations of the defendant land bank to abandon their contract with the plaintiffs with the view of later purchasing the land from the bank at a lower price.

It is alleged in the complaint “that the action of the defendant in procuring the said Pascal Barber and wife to break their contract with plaintiffs and in inducing them not to carry out their definite contract with the plaintiffs for the purchase of the said land, constituted a malicious interference with the contractual rights of the plaintiffs; that said action on the part of the defendant was actuated by malice and by a wilful and reckless disregard for the rights of plaintiffs, and by the desire on the part of the defendant to obtain for itself a substantial profit and benefit. That by reason of the said wilful, wrongful, and malicious act of the defendant in interfering with said contract, and in inducing and procuring the said Pascal Barber and wife to break the said contract, the plaintiffs have been damaged. . . .”

Since the gravamen of the plaintiffs’ alleged cause of action is the “wilful, wrongful, and malicious act of the defendant in interfering with said contract and in inducing and procuring the said Pascal Barber and wife to break said contract,” and since the motion for judgment of non-suit was allowed, the only question for our consideration is whether there was any evidence of a wilful and wrongful interference by the defendant with a contract of sale made by the plaintiffs with Pascal Barber and his wife.

The purport of what the defendant did was to offer to sell the land to Pascal Barber and his wife for less money than it would cost them if they bought the land from the plaintiffs, and thereby caused Barber and his wife to abandon their contract with the plaintiffs. If this was unlawful and wrongful, then the plaintiffs made out a cause of action, but if it was not unlawful and wrongful, however malicious it may have been, the plaintiffs failed to make out a cause of action. *Elvingion v. Shingle Co.,*191 N. C., 515. “Malicious motive makes a bad act worse, but it cannot make that wrong which in its own essence is lawful. . . . As long as a man keeps himself within the law by doing no act which violates it, we must leave his motives to Him who searches the heart.” *41
      *Biggers v. Matthews,*141 N. C., 299. We bold tbat tbe acts of tbe defendant were witbin tbe law.

In tbe complaint there is no allegation tbat tbe defendant made any false or fraudulent representation to Barber and bis wife, and no allegation tbat tbe defendant breached any contract with tbe plaintiffs to cooperate with them in tbe sale of tbe land to Barber and bis wife or any other third person, and no allegation upon which an action for slander of title might be predicated. Therefore it would seem tbat any loss tbat tbe plaintiffs suffered by reason of tbe defendant’s acts in tbe premises was tbe result of lawful competition, and tbe law does not protect one against competition. Disturbance or loss resulting therefrom is *damnum absque injuria. Swain v. Johnson,*151 N. C., 93.

“An action cannot, in general, be maintained for inducing a third person to break bis contract with tbe plaintiff; tbe consequence, after all, being only a broken contract, for which tbe party to tbe contract may have bis remedy by suing upon it.” Cooley on Torts, 4th Ed., Yol. 2, p. 602, sec. 360. See, also, *Biggers v. Matthews, supra; Swain v. Johnson, supra; Elvington v. Shingle Co., supra,*all of which are authority for tbe action of tbe Superior Court in allowing tbe motion for judgment as of nonsuit.

Tbe position of tbe appellant tbat tbe failure of tbe defendant to appeal from tbe judgment overruling a' demurrer to tbe complaint was res *adjudicaba*of tbe question raised upon tbe motion for judgment as of nonsuit is untenable, since a demurrer is addressed to tbe pleadings and a motion for nonsuit is addressed to tbe evidence.

Affirmed.