Francis H. (Francis Hermann) Bohlen.

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the legal ground of action.

For these reasons we are of opinion, that the action is not main-
tainable, and that the judgment must be arrested; and, consequently,
it becomes unnecessary to inquire whether the innuendo laid in the
declaration is more large than it ought to have been.

We therefore make the rule for arresting the judgment

Absolute.



PENNYMAN v. RABANKS.
Court of Common Pleas, 1594. Cro. Elis. 427.

Action upon the case for slandering his title. For that he said
to F. S. who was in speech to buy the plaintiff's land, "I knov/ one
that hath two leases of his land, w^ho will not part with them at
any reasonable rate," ubi revera nulla talis diniissio facia fuit. The
defendant justifies by reason of two several leases by parol made
unto himself. The plaintiff replies de injuria sua propria absque
tali causa. Issue w^as joined, and found for the plaintiff". It was
now moved in arrest of judgment, that an action lay not for these
words. * * * Because it appears by the defendant's justifica-
tion, that he intended of leases made of himself ; and if a man claims
estates, although they be false he shall not be punished.^ This was
agreed by all the court, that no action lay against one for saying,
that he himself had title or estate in lands, &c., although it were
false. But here the words in the declaration, as they are spoken,
being in the third person, be not intendable of himself, but of some
other, and import a slander to the plaintift"'s title ; and then his
justification afterwards shall not take away that action which before
was given to the plaintiff for the slandering of his title. Wherefore
rule was given that judgment should be entered for the plaintiff,
unless other matter was shewn upon the third day of the next term.
Afterwards Pasch. 38 Eliz. it was adjudged for the plaintiff', Fenner
contradicente.^



^ See Gerard v. Dickinson, 4 Coke 18 (1577). post.

'■'Accord: Nezcman v. Zachary, Aleyn 3 (1697), the defendant who was
the plaintiff's shepherd, stated that one of the latter's sheep was an estray,
whereby it was seized as such by a bailiff, both malice and knowledge of tlie
falsity of the statement were alleged; Milmay's Case, 1 Coke *175 (1571), de-
fendant, a man imlearned in the law. in a certain will stated that third per-
sons had a thousand-vear term in land owned bv the plaintiff; Rowe v. Roach.
1 M. & S. 304 (1813) ; Bignell v. Buzzard. 3 H. & N. 217 (1838) : Ross v.
Pines. Wythe 69 (Va. 1789), p. 71. defendant wrote a letter to a friend, in
which he said there was some dispute as to the title to certain slaves which



G:



878 ANDREW V. DESHLER.

ANDREW V. DESHLER.

Court of Errors and Appeals, 1883. 45 New Jersey Law Rep. 167.

Green, J., in Andreiv v. Deshler. All the cases agree that in
an action f or ^slaj^deroftitle, there must be evidence of malice,
express or impliedTV' If the words are spoken by a stranger, the
law presumes malice.^ But if the party is himself interested in the
matter and announces the defect of title, honaM£^t\t\izv for the
purpose of protecting his own interest or preventing the commis-
sion of a fraud, the legal presumption of malicejs rebutted^ Malice
is of the gist of the action, and the real point on'Th^-qtiestion of
malice is whether the defendant made the statement bona fide and
under an honest impression of its truth, or whether he made it ma-
liciously, for the purpose of slandering the plaintiff's title.

the plaintiff was offering for sale, the letter coming to the attention of an in-
tending purchaser led him to decline to buy.

"The law-Jna kes n o al low ance for the^slander of strangers, whatev er it "P
may do in behalf of those, who have a real title or a cTaim ofTt. ^Rei immiscat
se altenae' is the good sense which must have given this case"; Lord Ellen-

horoiiph in Rn ^"^ ^ TPnnrfj ] fl ^& S. 304 (1813) .

"■Accord: Pitt v. Donovan^ i. M. & b. M':) { 1813) ; Hargrove v. Le Breton,
4 Burr. 2422 (1769) ; Smith v. Spooner, 3 Taunton 246 (1810) ; Kendall v.
Stone, 5 N. Y. 14 (1851) ; Pater v. Baker, 3 C. B. 831 (1847), p. 868; Hill v.
Ward, U Ala. 310 (1848) ; McDaniel v. Baca, 2 Cal. 326 (T852) ; IValkley v.
Bostwick, 49 Mich. 374 (1882); Bailey v. Dean, 5 Barb. 297 (N. Y. 1848);
Miller. J., in Like v. McKinstrv, 41 Barb. 186 (N. Y. 1863) ; Cordon v. Mc-
Connell, 120 N. Car. 461 (1897); Hopkins v. Brozvne, 20 R. I. 20 (1898);
Halsey v. Brotherhood, 15 Ch. Div. 514 (1880), L. R. 19 Ch. Div. 386 (1881) ;
Hatchard v. Mege, L. R. 18 Q. B. D. 771 (1887), an action for disparagement
of property in which it is said that there is no presumption of malice from
the fact of publication, but that malice, falsity and damage must be proved.
In all these cases, except perhaps Kendall v. Stone, where it was held that
there was not sufficient proof of damage legally resulting from the slander,
the defendant was claiming the title in himself, or, acting on behalf of some
one who claimed the title, or, as in Pater v. Baker, was a public officer; in
none was the defendant an officious intermeddler having no interest to pro-
tect and no duty to perform.

^Accord: Proudfoot, J., in Ontario Industrial Loan. Co. v. Lindsey, 4
Ont. 473 (1883); Blake Odger's Slander & Libel, 4th ed. 76, "Whenever a
man officiously intermeddles with the affairs of others with which he is wholly
unconcerned, such officious interference will be deemed malicious and he will
be liable, if damage will follow." As to this method of stating the fact that
in such case malice need not be proved, see Professor Smith in 13 Col. L. R.,
pp. 23-25. In Swan v. Tappan, an action for disparagement of quality, West-
ern C. M. Co. v. Lawes Co., note 1, post, similar language is used by
Fletcher, J.

'See the cases given in note 1, and John W. I^ovcll Co. v. Houghton, 116
N. Y. 520 (1889) ; Stark v. Chiiwood, 5 Kans. 141 0869), levy erroneously
made by defendant on real property owned by plaintiff under a judgment
against third persons.



WILSON V. DUBOIS. 879

(b) Disparagement of quality (trade libel),

V.c . *5

WILSON V. DUBOIS.
Supreme Court of Minnesota, 1886. 35 Minnesota Reports All.

Berry, J. The complaint alleges that plaintiff, a horsedealer,
owned, January 30, 1886, and still owns, a race-horse, which then
was and still is for sale ; that on that day defendant maliciously pub-
lished in a newspaper (of large circulation), of which he was pro-
prietor, a statement that the horse was 21 years old, when he was
not more than 12 years old, as defendant well knew, thereby in-
tending to hinder the sale of the horse by plaintiff, to his pecuniary
loss and damage; that at said time plaintiff had "a chance to sell,
and was negotiating a sale" of, said horse for $1,000, and but for
said false publication would have sold him for that sum; and that,
solely because of said false publication, "plaintiff lost the chance
to sell said horse ; the negotiations * * * were broken off by
said parties who contemplated purchasing; no one will pay for it
more than $500; and plaintiff cannot sell his said horse for more
than $500;" and that plaintiff has accordingly suffered damages in
the sum of $500.

False^ and malicious statements, disparaging an article of prop-
erty, when followed, as a natural, reasonable, and proximate result,*^
by special damage to the owner, are actionable. PaiiU v. Halfcrty,
63 Pa. St. 46 ; Gott v. Pulsifcr, 122 Mass. 235 ; Starkie, Sland.
(Wood's Ed.), § 136; Manning v. Avery, 3 Keb. 153; Broom,
Comm. (6th Ed.) 761, y62; Szvan v. Tappan, 5 Cush. 104; Western
C. M. Co. V. Lazves C. M. Co., L. R. 9 Exch. 218; Odgers, Lib. and
Sland. 145 ; Townsh. Sland., § 204. ^

Does the complaint state a case under this rule? That the



"■Hargrove V. Le Breton, 4 Burr. 2422 (1769) ; Pater v. Baker. 3 C. B.
831 (1847), Maule, J., p. 869; Hatchard v. Mcge et ai. L. R. 18 Q. B. 771
(1887), p. 775, "the falsehood of the statement complained of . . . must
also be proved to entitle the plaintiff to recover"; Like v. McKinstry, 41 Barb.
186 (N. Y. 1863) : Hastings v. Giles Lithographic Co., 51 Hun 364 (1889) ;
Young v. Geiske, 209 Pa. 515 (1904).

''In Paull V. Halferty. the defendant wrote to one who was in negotia-
tion for the purchase of the plaintiff's land containing ore-banks, that one ^I..
a well-known practical iron-master, considered it an isolated pocket that
would soon run out; in Gott v. Pulsifer, the defendants' newspaper branded
as a fraud, a statue belonging to the plaintiff, known as the Cardiff Giant,
thus preventing its sale. In Szvan v. Tappan, the defendant, a rival pub-
lisher, published a letter from members of the Worcester School Board ex-
pressing dissatisfaction with the plaintift''s school books. In Manning v.
.'ivery, the statement was that the plaintiff had mortgaged his property and
had no power to sell or lease it, a disparagement of title rather than quality.

See also, Dooling v. Budget Publishing Co.. 144 Mass. 258 (1887), wheYe
an article accusing the plaintiff, a caterer, with serving a wretched dinner
and vilercigars and wine, was held not actionable without averment and proof



880 WILSON V. DUBOIS.

Statement complained of was false and malicious, is distinctly-
averred. It was also prima facie disparaging, for prima facie, as a
matter of common knowledge, a horse at 21 years of age is less
valuable than he is at 12. The complaint also alleges, in effect, that
the plaintiff's loss of sale of his horse was the result of the publica-
tion ; and there is no difficulty in conceiving of a state of facts show-
ing that the intending purchaser was influenced and led to decline
or refuse to purchase by the publication complained of, and hence
no difficult}^ in conceiving that the failure to sell him may have been
a natural, reasonable, and proximate consequence of said publica-
tion. But the allegation of special damage is insufficient. The ac-
tion is in the nature of one for slander of title ( Western C. M. Co.
V. Lawes C. M. Co., L. R. 9 Exch. 218), and hence it is not the ordi-
nary action for slander, properly so called, "but an action on the
case for special damages sustained by reason of the speaking" com-
plained of. I Wms. Saund. 243^, note n; Malachy v. Soper, 3 Bing.
N. C. 371 ; Brook v. Rawl, 4 Exch. 521. Special damages are there-
fore of the gist of the action. Wetherell v. Clcrkson, 12 Mod. 597.
Without them the action cannot be maintained, and therefore a
complaint failing to allege them fails to allege a cause of action.
Starkie, Sland. 212; Wetherell v. Clerkson, supra; Cook v. Cook,
i(X) Mass. 194.

Where loss of sale of a thing disparaged is claimed and re-
lied on as special damages occasioned by the disparagement, it is
indispensable to allege and show a loss of sale to some particular
person, for a loss of the sale to some particular person is the special
damage, and of the gist and substance of the action, i Rolle Abr.
58; Manning v. Avery, 3 Keb. 153 ; Tasburgh v. Day, Cro. Jac. 484;
Evans v. Harlozu, 5 Q. B. 624; Tobias v. Harland, 4 Wend. 537;

of special damages; Hygienic Co. v. Way, 35 Pa. S. C. 229 (1908); and
Young v. Geiske, 209 Pa. 515 (1904), where a statement that a dividend upon
stock, which the plaintiff was offering at auction, had been illegally declared
was held actionable when false, made for the purpose of depreciating its value
and resulting in its sale at a price far below its actual value, and see cases
cited in note 1 to Western, etc., Co. v. Lawes, etc., Co., of these cases only
Evans v. Harlow, Sivan v. Tappan, Tobias v. Harland were actions for dis-
paragement of quality; Manning v. Avery, Tasburgh v. Day, Kendall v. Stone,
Linden v. Duer, and MalacJiy v. Soper, were actions for disparagement of title
(Slander of Title), see notes to Malachy v. Soper, supra; Bassell v. Elmore
and Ashford v. Choate, were actions of slander for words not actionable per
se, in which general allegations of denial of hospitality by neighbors not
named was held insufficient averment of actual damage; Cook v. Cook, and
Pollard v. Lyon, state the necessity in such actions for specific averment of
the precise nature of the actual loss alleged and how it was caused by the
slander; Hartley v. Harring and Bergman v. Jones, were actions of slander
for words actionable per se, in which general falling off of a preacher's con-
gregation and of the receipts from the business of a small tradesman were
allowed to be shown as special damage ; Stiebeling v. Lockhaus, a similar
action, holds an averment that a physician was injured in his earnings as such
to be insufficient to allow proof of the loss of particular patients ; Cramer v.
Cullinane and Hallock v. Miller, a similar action, hold that the declaration
should aver the names of persons denying the plaintiff employment or refus-
ing to patronize his shop, and that no proof can be given of such denial or
refusal by any one not so named.



GEORGE V. BLOW. 88 1

Kendall v. Stone, 5 N. Y. 14; Swan v. Tappan, 5 Cash. 104; Linden
V. Graham, 1 Duer 670; Hartley v. Marring, 8 Term R. 130; Hal-
lock V. AHller, 2 Barb. 630; Malachy v. Soper, supra; Ashford v.
Choate, 20 U. C. C. P. 471 ; 3 Suth. Dam. 674 ; Stiebeling v. Loc^-
/lOMJ, 21 Hun 457 ; Cramer v. Cullinane, 2 McArthur, 197; Bergman
V. Jones, 94 N. Y. 51; Bassell v. Elmore, 48 N. Y. 561; Coo/e v.
Coo/^, 100 Mass. 194; Pollard v. Lyon, 91 U. S. 225; Odgers, Libel
and Sland. 313; Starkie, Sland. (Wood's Ed.), § 136; Wetherell
V. Clerkson, supra; Szvan v. Tappan, supra; Paull v. Halferty,
supra; Gott v. Pulsifer,^ supra; and see declarations or complaints
in many of the foregoing cases, especially the two last cited.

The rule is not technical, but substantial. It imposes no hard-
ship upon the plaintiff. If there is a. person to whom a sale could
have been made, in the absence of the disparagement, he can be
named, so as to inform defendant of the particular charge of dam-
age which he is required to meet. Wetherell v. Clerkson, supra. If
there is no such person, there is no cause of action ; and it follows
that the failure to name the particular person or persons to whom
a sale could have been effected, if it had not been prevented by the
disparagement, does not present a case of mere indefiniteness, but
of total absence of an allegation essential to the statement of a cause
of action, — a lack of substance, not of form {Cook v. Cook, supra;
Pollard V. Lyon, supra) ; and therefore a case for a demurrer, rather
than for a motion to make more, definite and certain. Pom. Rem.,

§ 549-

Order affirmed, and case remanded for further proceedmgs.'*



GEORGE V. BLOW.
Supreme Court of New South Wales, 1899. 20 N. S. W. L. R. 391

Darley, C. J. This was an action in the nature of an action
of slander of title, in other words, an action for a trade libel. The
declaration contained three counts, all of which are demurred to.
Although different words are complained of in each count, prac-
tically there is but one complaint^ and that is stated in the first count.
The words there complained of are — "We are the only photogra-
phers supplying the rococo, as it is our own production," the innuen-
do being that the process of preparing rococo photographs had been
invented and was used only by the defendant ; that such photographs
could not be produced by the plaintiff', and that the photographs
produced by the plaintiff were not rococo.

Now, these words, "We are the only photographers, etc.," ob-
viously intimate to the public that the defendant is the only pho-
tographer who can supply genuine rococo photographs, and that all
others which purport to be rococo must be spurious. The plaintiff,
however, alleges by way of introductory averment, that he and the



* See Smith, Disparagement of Property, 13 Col. L. R. pp. 123, 124, quoted
in note 1 to Malachy v. Soper, ante.



SS2 GEORGE V. BLOW.

defendant are both photographers; that a certain process for the
production of photographs, known amongst other names by the
rococo process, was well known to and commonly used by pho-
tographers ; and that the plaintiff was entitled to use and was using
the same for the production of photographs in his business. The
declaration then alleges that the defendant falsely and maliciously
printed and published of and concerning the plaintiff in relation to
his said business, and the said process, the words complained of.
The declaration further alleges by way of special damage that the
plaintiff was injured in his said credit and reputation as such pho-
tographer and otherwise, and in his said business, and many per-
sons who would have otherwise have dealt with him were prevented
from dealing with him, and he lost the profits he would have made
thereby.

It will be observed that this is not the case of one trader stating
that his goods are better than the goods of another trader, or stat-
ing that his goods are the best in the market, or otherwise lauding
his goods at the expense of the goods of others. All this may be
done without affording any cause of action : see Hubbuck v. IVil-
kinson, i Q. B. 86 (1899).^ This is a case of a trader who informs
the public, I, and I only, can supply you with this article, and no one
else can, and if any person else purports to do so, then the article
so supplied is spurious, and not that which it purports to be. The
case then closely resembles the case of Liebig's Extract of Meat Co.
V. Anderson, 55 L. T. 206. There the words complained of were
published in relation to Liebig's extract of meat, and were: "This
is the only genuine brand." The plaintiffs, and indeed all other
persons, were entitled to sell, and the plaintiff's were selling Liebig's
extract of meat. Mr. Justice Chitty, in granting an injunction y
restrain the use of these words, stated that they amounted to a cler/



^Accord: Young v. McCrea, 3 B. & S. 264 (1862) ; White v. MelUn, 1895
A. C. 154; see also, Christiancy, J., in Weiss v. Whittemore, 28 Mich. 366
(1873), p. 375, and Marcy, J., in Tobias v. Harland, 4 Wend. 537 (N. Y.
1830), p. 541, where, however, no sufficient damage was alleged to have re-
sulted. Various reasons have been given for regarding such "puffing" of a
trader's goods as not being actionable. In White v. Mellin, 1895 A. C. 154,
Lord Herschell says, p. 165, that by allowing such action "the courts of law
would be turned into a machinery for advertising such productions by obtain-
ing a judicial determination as to which was the^better", see Salmond, Torts,
1st ed., 428. Professor Smith, Disparagement of Property, 13 Col. L. R.
134-5, is of the opinion that it is because such "puffing" deceives no one, as
in the case of actions of deceit brought by purchasers against tradesmen who
have indulged in extravagant praise of their wares.

In Johnson v. Hitchcock, 15 Johns. 185 (N. Y. 1818), it was held that no
action lay against the defendant, who being unfriendly to the plaintiff's ferry,
hindered persons from using it by representing it as not as good as another
near to it belonging to a third person. Lord Herschell in White v. Mellin,
1895 A. C, p. 165, and Lindley, J., in Hubbuck v. Wilkinson, at p. 94, however,
suggest the possibility that a stranger, not himself a competitor, might be
liable for such disparaging comparisons.

An unfavorable comparison of specific qualities of the plaintiff's and de-
fendant's goods is no more actionable than a comparison of them generally,
Lord Herschell, White v. Mellin, 1895 A. C, p. 165.



GEORGE f. BLOW. 883

statement that what the ])laintifts sold was not genuine, and so in
this case the statement put forward to the i)ubhc was a clear inti-
mation that no photographer but the defendant can supply genuine
rococo photographs, and that all others pur]Kjrting to be rococo
photographs are spurious. We have no hesitation, therefore, in
coming to the conclusion that upon this demurrer it must be held
that the words complained of do disparage the plaintiff's business,^^
and, it being alleged that the words complained of were falsely pub-
lished, it must, for the purpose of this record, be taken that they are
untrue. Two elements necessary to found an action for a trade >

libel are established. First. That the plaintiirs _goods nrc^ (hspar- .

aged. Secondly. That the disparagement i s untru e. A third still ^
remains to be considered. ^

In order to suppoi-t such an action, sp ecial damage arising froni ^

the false disparagement must be alleged anci proved, i he detendanl
contends that special damage is not properly alleged ; that the alle-
gation in the declaration only amounts to a general statement, which
is not sufficient. Now, in order to determine this question, it is
necessary to consider the nature of the matter complained of, the
trade which it affects, and the position of the parties. The plaintiff
is a photographer, and the photographs which he states he is pre-
pared to supply according to a certain process, are alleged to be
spurious, inasmuch as the defendant only can supply photographs
prepared according to this process. From the nature of the busi-
ness it is not possible for the plaintiff to say : "I have lost the cus-
tom of A-., of B., or of C." The plaintiff may not be able to do
this, but in the words of Bowen, L. J., in RatcUffe v^ Evans (1892),
2 Q- B. 533, "Sound judgment itself dictates that manaction for
falsehood producing damage to a man's tracre,~Trh4^^n^its very
nature is intended or reasonably likely to produce, and which in the
ordinary course of things does produce, a general loss of business,
as distinct from the loss of this or that known customer, evidence
of such general decline of business is admissible. In Hargrave v.
Le Breton, 4 Burr. 2422, it was a falsehood openly promulgated at
an auction. In the case before us to-day it is a falsehood openly
disseminated through the press, probably read, and possibly acted
on, by persons of whom the plaintiff never heard. To refuse with
reference to such a subject-matter to admit such general evidence
would be to misunderstand and warp the meaning of old expres-
sions ; to depart from, and not to follow, old rules, and, in addition
to all this, would involve an absolute denial of justice and of re-
dress for the very mischief which was intended to be committed."



= Tn Lync v. NichoUs, 23 Times L. R. 86 (1906\ a statement that the cir-
culation of the defendant's newspaper was 20 to 1 that of the plaintiff's paper,
was held to go bevond mere "puffing" and to be definite statements of fact,
though the injunction praved for by the plaintiff was refused, he not having
shown anv resulting damage. In Alcott v. Millar's Karri, etc.. Forests. 2\
Times L. R. 30 (1904), a letter bv a rival importer of paving blocks contam-
ing statements that roads paved with the plaintiff's blocks from six to eight
months before "are now in rotten condition", made to prevent the plaintiff



884 WESTERN COUNTIES &C. CO. V. LAWES &C. CO.

Every word of that lucid exposition of the law is applicable to the
case now under consideration.^

We are, accordingly, of opinion that special damage as required
by law is sufficiently alleged, and, accordingly, judgment must on
this record pass for the plaintiff.

Judgment for the plaintiff.



WESTERN COUNTIES MANURE CO v. LAWES CHEM-
ICAL MANURE COMPANY.

Court of Exchequer, 1874. Law Reports, 9 Exchequer, 218.

Declaration, that at the time of the committing, &c., the
plaintiffs carried on business as manufacturers and sellers of arti-
ficial manures, and had upon sale certain artificial manures, and the
defendants also carried on business as manufacturers and sellers of
artificial manures, and had on sale certain artificial manures ; that
the defendants well knowing that the plaintiffs were carrying on
the aforesaid business and selling the said artificial manures, and
contriving and intending to injure the plaintiffs in their business,
falsely and maliciously printed and published, and caused to be
printed and published of and concerning the plaintiffs, and of and
concerning them as such manufacturers and sellers of artificial
manures, the words following : —

"Chemical Laboratory, University of Glasgow, January 29,
1873. Dear Sir, — I enclose herewith analyses of your four samples
of manure, which differ much in quality. They are all mixtures,
and do not consist of bones and acid alone. No. 2 (meaning thereby
the defendants' artificial manures) is much the best, and seems to
contain some kind of phosphatic guano. No. 4 (meaning thereby
the plaintiffs' said artificial manures) appears to contain a consid-