Smith v. Hollister

Evidence. Pleading. Variance. Slander. Partnership. Jury. An association of individuals in trade, under the name of the New England Protective Union, Division No. 230,” brought an action for slander against H. On the trial, H., for the purpose of proving that B., one of the plaintiffs o f record, was not a member of the association, offered in evidence a written admission to that effect, drawn up by H.’s attorneys in the case, signed and sworn to by B.; Held, that it was admissible. The plaintiffs, to rebut evidence introduced by the defendant tending to prove that W., another of the plaintiffs of record, was not a member of the association, offered a paper signed by the wife of W., in his name; it did not appear that it was signed by her with the assent or knowledge of W., her husband, though it did appear that when the paper was first drawn, ff, refused to sign it. This paper, it appeared, was used by her for the purpose of withdrawing from the association the eight dollars (che sum required to be paid by members on joining it,) which she had previously paid in, and with it an order was obtained for the withdrawal of the money; Held, that the paper was inadmissible. The defendant's evidence tended to show that B. and W. were not members of the association; evidence tending to show that they were members was intro duced by the plaintiffs; Held, that it was properly submitted to the jury, as a matter of fact, to determine whether or not they were members, and that in determining the question, their intent and understanding in relation thereto, at the time they were alleged to have become members, as gathered from the evidence, was a material consideration for the jury. Averments were introduced into the declaration of words spoken by the defendant imputing dishonesty to L., the name of L. being followed by the innuendo, “ meaning the plaintiff's agent and clerk;” but there was nothing else in the declaration showing any connection between L. and the plaintiffs; Held, that in the absence of a direct averment connecting L, with the plaintiffs, or their business, the words alleged to have been spoken concerning him were not actionable in favor of the plaintiffs. To maintain an action for slander, the substance of the alleged charge must be proved in substantially the same words laid in the declaration. Any mere variation in the form of expression only, is not material, but the words alleged cannot be proved by showing that the defendant expressed the same meaning in different words. It is not necessary, however, to prove all the words laid, unless the omission of those not proved would so vary the meaning of the others as to make the charge as proved a different one from that alleged.

Case for slander. The substance of the several counts of the declaration was, that at the time of the committing of the grievances therein mentioned, the plaintiffs were merchants, doing business in Pawlet, under the name of the “ New England Protective Union, Division No. 280,” and that the defendant, on the 27th day of August, 1855, and on divers days between that time and the commencement of this suit, to injure them in their business and credit, falsely and maliciously said of them, “ Division No, 230 (meaning the plaintiffs) must run under at least two thousand dollars; they must run out; I will use them up; they owe at least eighteen hundred dollars in Boston, and as much in New York; O. H. Simonds (meaning one of the plaintiffs) is not worth anything, and Horatio Hollister (meaning one of the plaintiffs) is not worth much, and he (the defendant) did not consider said Division safe; it (meaning the plaintiffs’ store) will be shut up;” that on the day and year aforesaid, the defendant spoke certain other false and malicious words of the plaintiffs, that is to say, “ the Division (meaning the plaintiffs’ store) is attached and closed, and they (the plaintiffs) are not doing business now, and Lincoln (meaning the plaintiffs’ agent and clerk) is not fit to be trusted with any business, and has not an honest hair in his head, nor an honest thread in his clothes, and the whole business (of the plaintiffs) is conducted dishonestly ;” that on the day and year above mentioned, the defendant also falsely and maliciously spoke of the plaintiffs as follows: “the Union Store (meaning the plaintiffs’) cannot borrow twenty dollars of any one; they cannot pay their debts;” that on the same day and year, the defendant spoke other false and defamatory words concerning- the plaintiffs, as follows: “ the store (meaning the store of the plaintiffs) will fail, and they (meaning the plaintiffs) cannot get trusted in market a dollar; they are cheating the people that traded with them ; they are bankrupt, and Lincoln (meaning the plaintiffs’ agent and clerk) is a scouadrel, and always was, and would play a trick on the people at the last end; they (meaning the plaintiffs) are bankrupt; they (meaning the plaintiffs) are cheating the people, and it (meaning the plaintiffs’ firm) is a dishonest concern.” On the trial, by jury, at the September Term, 1859,— Aldis, J., presiding, — the plaintiffs introduced evidence tending to show that, at the time the defamatory words set forth in the declaration were spoken, they were owners of a store in Pawlet, and were trading under the name and style of the “ New England Protective Union, Division No. 230,” together with proof of the uttering and publishing of the slanderous words alleged. The evidence tended to prove that the defendant said, “ Di\ ision 230 must fail; I know it is so; they can’t get trusted a dollar : the company is a bankrupt; they can’t pay their debts ; the company is a dishonest, rotten concern.” Evidence was also given to prove the words spoken, as follows: “the store is involved, and in debt in New York andi * Boston ; I am on a note for them and have requested my name to be taken off; they must eventually come down ; they cannot borrow money ; the store is unable to pay its debts.” Also, evidence tending to prove that Hollister said, “ that the store was the rottenest, dishonestest piece of business ever invented ; that the company was not good for anything; Ossian Simonds was not worth a dollar if his debts were paid; Horatio Hollister had more ways for his money than to have any in the store; they were owing a large amount below, and the store must fail; it was a rotten concern ; they were insolvent and bankrupt; the Uinon store could not pay its debts, and could not get trusted below; the Union store was a rotten, dishonest and unsafe concern; they were owing a good deal of money in Boston and New York, and a note for five hundred dollars on which his name was, and they trusted everything to their agent; that through the management of their agent they must fail up ; that the Union Store must close ; the banks would not give them credit, and individuals would not trust them.” Evidence was also introduced tending to prove the speaking of the words imputing dishonesty to Lincoln, which, under the decision of the court, it is unnecessary to repeat. I, The defendant denied the speaking of the words, and gave evidence tending.to show that he did not speak them; and also gave evidence tending to show that Gerry Brown and Artemas Wilcox, two of the plaintiffs of record, were not members of the Union, although it was conceded that Brown traded at the same rates as members of the firm, who, it appeared by the rules of the association, were to be, and who were, charged a less price than persons not members. The defendant offered the statement of Brown, to the effect that he never was a member of the firm, drawn up by one of the attorneys of the defendant, and signed and sworn to by Brown, which was objected to, but admitted by the court. The evidence as to whether Brown and Wilcox were members of the association, is sufficiently stated in the opinion of the court. The plaintiffs, to rebut the defendant’s evidence in relation to Wilcox, offered a paper which, it appeared, was signed by the wife of Wilcox, but it did not appear that it was signed. »by her in his presence, or with his consent or knowledge, though it did appear that, when the paper was first drawn, Wilcox refused to sign it, and said he had done nothing to get into the company and would do nothing to get out of it; afterwards, it was signed by the wife, in the name of her husband, and Wilcox’s son said he took the paper, by his mother’s direction, to the clerk to obtain an order for the withdrawal of the money, (which had been paid in by her) which order was obtained with the paper; and the same witness stated that he did not know that his father knew of the signing of the paper, and that his father would not assent to its being signed. On this evidence the paper -was excluded by the court, and the plaintiffs excepted. The first and second constitutions, or articles of association, were introduced in evidence, and evidence was given to show that, on the adoption of the second constitution, none of the members signed it, and that the signing was practically dispensed with. The material portions of the constitutions are recited in the opinion of the court. The court charged the jury, as to the slanderous words laid in the declaration and the evidence to sustain them, that the allegations as to Lincoln, and the evidence tending to prove them, ought not to be considered by the jury in assessing damages, as there were no averments in the declaration sufficient to connect him with the plaintiffs, so as to make the words spoken of him become slander of the plaintiffs ; that the only words alleged in the declaration which the evidence tended to prove, and which were so connected, by a proper colloquium or averments, with the plaintiffs as to make them actionable, were the following: “they cannot pay their debts;” “ theware bankrupt;” “ it is a dishonest concern ;” and as to these wmids alleged in the declaration, it was not necessary for the plaintiffs to prove the very form of expression, the identical words laid ; it was enough if the plaintiffs proved the substance of the alleged slander, if the words as proved, though not the very ones laid in the declaration, conveyed the same idea, the same and no other meaning; and upon this point they should consider the evidence tending to show that the defendant had said of the plaintiffs, as partners and merchants, “ the company is bankrupt and cannot pay their debts ; the company is a dishonest and rotten concern; they are unable to pay their debts ; they are owing more than they can pay; the store is unable to pay its debts ; the company is not good for anything ; the store was the rottenest and dishonestest piece of business ever invented ; that they were insolvent,” and other similar expressions ; and if they found that the defendant had in substance spoken of them the slanderous words laid in the declaration, and which the court had already stated were actionable, then this point would be made out for the plaintiffs; but that unless the words so alleged, or the substance of them, were proved by the plaintiffs, they could not recover; that if proved, the jury might then consider the evidence of the other slanderous language as tending to show malice, and so to enhance the damages, but for no other purpose. The court also charged the jury that they must find all the persons, as alleged in the declaration, to have been partners, or the plaintiffs could hot recover ; and that if either Brown or Wilcox was not a partner, the action must fail; that the association entered into, as shown by the constitution and the other testimony, for the purpose of buying and selling goods, was a partnership; that in order to show a partnership between the plaintiffs, to sustain this action, they must show that the plaintiffs and all of them were partners as between themselves, and that they had agreed to become members of the firm, or association, called the “New England Protective Union, No. 230 that it was not necessary that they should understand all the liabilities they might eventually incur by entering into the contract, nor that they should call their contract by the name of a partnership ; but they must agree to become members of the association in order to make their contract a partnership ; that if Brown and Wilcox did agree to become members of the -liK E. Protective Union, No. 230, and did, in fact, by their agreement and understanding, so become members, then on this point the plaintiffs sustained their action ; but that if either of them did not so become a member of the association, then the action must fail; that this was a question of fact for the jury to determine from the evidence, and if the jury were satisfied that Brown and Wilcox respectively understood that they were members, or that they must, as reasonable men, have so understood it from what they respectively said and did, and what was said and done to and with them by the company, in regard to becoming and being members, then the action as to this part of the defence was sustained. As to damages, the court charged that if the jury found actual malice in the defendant, and that from this malice he uttered the slanders with intent to injure the plaintiffs in their business as merchants in company, then the jury could give exemplary damages. To the portions of the charge above stated the plaintiffs excepted. The court gave such furlher instructions as the case required, to which no exceptions were taken. Verdict for the defendant, 1. The written admission of Brown should have been rejected, for the reason that Brown himself was a competent witness, and because all the reasons that forbid the attorney in a cause from writing a deposition designed for use in such cause, weigh with equal force against admitting the paper in question. 2. The court, instead of excluding altogether the paper signed by Wilcox’s wife, should have admitted it with proper instructions to the jury as to the facts it would be necessary for them to find, in order that the paper should be allowed to affect the issue. 8. The words spoken of Lincoln should not have been excluded from the consideration of the jury, as the declaration is not defective in the particular essential to make the words admissible. 4. The court should have fairly recapitulated the testimony on the question of whether, or not, Brown and Wilcox were members of the company, and instructed the jury as a matter of law, in the light of the facts left for them to find, whether the facts, if found, would constitute them members ; and not have left it to the jury, as a question of fact, whether they were members. 5. The court charged the jury that the only words actionable, which the evidence tended to prove, were the following; “they cannot pay their debts “they are bankrupt“it is a dishonest concern.” The plaintiffs contended that there were other words in the declaration actionable, which were supported by the evidence : as, “they must run out“it will be shut up “he did not consider the Division safe “the store will fail-;” “they cannot get trusted in market a dollar“O. H. Simonds is not worth a dollar which were supported by the evidence. “Division 280 must fail“they must eventually come down“they must fail up;” “the Union Store must close;” “they cannot get trusted a dollar ;” “they could not get trusted below ;” “they could not borrow money“Ossian Simonds was not worth a dollar if his debts were paid.” Any words that have a tendency to injure the business or credit of a tradesman are actionable. Bacon’s Ab. Title, “Slander.” And it is sufficient to prove some of the words laid, provided those omitted do not alter the sense. Starlde’s Ev., Yol. II, p. 848. Chitty’s PI. 405. 6. Brown and Wilcox were members of the association on the facts proved. The court should have charged the jury, that if they paid in the eight dollars, enjoyed the privilege of the association and received a certificate of membership, they were members. It is entirely immaterial whether they understood that they were members or not. I. The admission of one of several joint plaintiffs is always receivable in evidence; and the rule is not varied by the fact that the admission was drawn up by one of the attorneys of the defendant. Brown v. Munger, 16 Vt. 13. Oampbell v. Dewey, 16 Vt. 538. 2. The paper signed by Wilcox’s wife was properly rejected. It was not signed with the assent or knowledge of Wilcox, or by any agent authorized to execute instruments of that character. 3. In order to make the words spoken of Lincoln defamatory of the plaintiffs, and so entitled to be considered by the jury, the declaration should have alleged that the plaintiffs had knowledge of the dishonesty imputed to their agent. Stephen’s nisi prius, 2562 and 2539, note v. 4. There is no mention in the declaration, except by way of innuendo, that Lincoln was agent and clerk of the plaintiffs. There is no legal averment to that effect. Words imputing dishonesty to him are, therefore, no more defamatory of the plaintiffs than words imputing dishonesty to any other person. Stephen’s nisi prius, 2568, 2570; 1 Ohitty’s PI. 407; 1 Aikens, 33 ; 12 Vt. 51; 13 Vt. 42 ; 14 Vt, 462. 5. The charge of the court as to what was necessary to constitute Brown and Wilcox partners with the remaining plaintiffs, was correct. Collyer on Part. 2 ; 10 Vt. 170. 6. The only words in the declaration which the evidence tended to prove, and which were so connected with the plaintiffs, by proper colloquium or averments, as to make them actionable, were the following; “they cannot pay their debts“they are bankrupt“it is a dishonest concern.” As to variance see 1 Chitty’s PI. 405 ; Stephens nisi prius, 2575.