Babcock v. Raymond

By the Court, Hilton, J.

Thе defendants, proprietors of the New York Daily Times, a newspaper printed in this city, published at the head of its columns a “ Notice to Corresрondents,” as follows: “Voluntary correspondence, containing important news from all quarters of the world, is solicited; if used, it will be liberally paid for.” In Sеptember, 1856, and while the probability of the election of Mr. Fremont to the position of President of the United States, was a subject much discussed and сommented upon in our newspapers and elsewhere, the plaintiff prepared and sent to the defendants a communication contаining statistics, observations, and results, stated to have been derived from an actual canvass by him of the views, principles and preferences оf persons of all classes, and both sexes, traveling upon many of the railroads and other routes throughout the country, respecting the severаl candidates for the presidency, which were to be voted for at the then ensuing general election. The defendants published the communicаtion in their paper. It occupied about half a column of the daily issue of September 13th, 1856, and was preceded by an editorial paragraph assuring the public of the conscientious accuracy, and reliability of the record contained in it.

The object of these statistics аnd observations, and their publication thus endorsed, seems, from a careful perusal, to have been for the purpose of arriving at certаin results which are declared to have been obtained from the facts there stated. And, to show the inqoortant character of the communiсation, in it the particulars are given of 43 separate canvassings of promiscuous companies of persons traveling over different rоutes and sections of country, which it was alleged established the following extraordinary “results” or conclusions: ‍‌‌‌‌‌‌‌‌​‌‌‌‌‌​‌​​‌‌​‌‌‌‌‌‌​​​‌‌​‌‌​‌​​‌​‌​‌​‌​​‍1. That among the traveling and intelligent pоrtions of the community, Mr. Fremont had twice as many partisans as both the other candidates, Buchanan and Fillmore, together; while in the rural districts and back settlements—where, it seems left to inference, the people are not so enlightened or intelligent—opinion -was pretty equally divided betwеen Fillmore and Buchanan. 2. That, of the voters between 21 and 60, from five-eighths to five-sixths were for Fremont; while, of those over 60, nearly two thirds were for Buchanan. 3. That seven-eighths of all our literary men, professors, &c., and nearly every minister of the gospel, would vote for Fremont; while about four-fifths of all the voters for Buchanan were opposed to the Maine liquor law. 4. That nearly every district in Pennsylvania would go for Fremont, while the state would probably go for Buchanan. 5. That a very large proрortion of all the ladies were for Fremont—indeed, it appeared that, in this preference, very many of them were in direct oppositiоn to their husbands, although it was admitted “ that Mr. Fillmore’s fine personal appearance had not been without its effect.” Finally, That these “ results ” contained “ facts of the most cheering character,” which may be thus briefly stated:

“ That young men are more honest than old ones, and are overwhelmingly fоr Fremontand, as a consequence, the future public virtue and permanency of our republican institutions are secured. That ministers, ‍‌‌‌‌‌‌‌‌​‌‌‌‌‌​‌​​‌‌​‌‌‌‌‌‌​​​‌‌​‌‌​‌​​‌​‌​‌​‌​​‍men of sciеnce, loveliness, (evidently referring to the female sex), virtue, temperance, and intelligence throughout the land, were for' Fremont. The conсluding inquiry in the article, “ Who can be against us?” assuming all the previous statements and conclusions to be accurate, seems not only unnecessary, but rathеr difficult to answer.

It will not be denied that, if by the plaintiff’s communication these results and conclusions were satisfactorily established in advance of thе people expressing their views and preferences in the usual method, it would at the time have been deemed “ important news,” in the largest sеnse of that term, to any newspaper or person professing a partiality for the election of Mr. Fremont ; and, as by reference to the copy of the defendants’ ‍‌‌‌‌‌‌‌‌​‌‌‌‌‌​‌​​‌‌​‌‌‌‌‌‌​​​‌‌​‌‌​‌​​‌​‌​‌​‌​​‍paper containing the article, and attached to the return on this appeal, it appears that they so professed, there seems no reason for doubting that they regarded it as containing not only “ important news,” but information valuable to their readers.

On the trial before the justice of the First District Court, and from whose judgment this appeal is taken, the plaintiff proved that he prepared the article in consequence of the notice refеrred to, and sent it to the defendants, requesting, before its publication, if it was not liked, to return it, that he might get a market for it elsewhere, —thus plainly informing them that it wаs intended for sale, and, if they used it, he was to be paid what it was reasonably worth. The paper in which it was published, being then put in evidence, afforded a presumption, at least, that the defendants accepted it upon the terms thus proposed, and that in their estimation it contained informаtion of importance and value. It was further proven by the plaintiff that the production of this article cost him ten days of hard labor, and that he сonsidered it worth $20. Apart from this testimony, it is manifest, from the editorial preface, that the defendants believed it to be of some value, and that the fácts alleged in it had been conscientiously collected and recorded; that its publication would be beneficial in showing to the opponеnts of Mr. Fremont the uselessness of further opposition ; and that the facts and conclusions in it, to use the language of the communication, “augured well for future public virtue, and the permanency of our republican institutions.”

This evidence was not in any way controverted, (the defendants offering no testimony), and the justice erred in disregarding it and dismissing the complaint. He was not justified in determining the character and value of the communication by the result оf the subsequent election to which it related, and was intended ‍‌‌‌‌‌‌‌‌​‌‌‌‌‌​‌​​‌‌​‌‌‌‌‌‌​​​‌‌​‌‌​‌​​‌​‌​‌​‌​​‍to affect; nor was he warranted in regarding facts and results, shown to be so accurately and conscientiously collected, as a useless fabrication, intended to influence unsettled or weak minds in favor of Mr. Fremont, and to inducе them to vote for him in preference to the other candidates then before the people.

The defendants were, and are still, engaged in the publication of a valuable and highly influential newspaper, intended for the information of, and not for the purpose of misleading, the рublic; and, as the plaintiff testifies that he spent much time and labor in preparing the article, it would be obviously unjust to both parties to assume, under all the circumstances, that they did not at the time honestly believe that the facts and results stated in it embodied information which, in their opinion, was not only valuаble, but important. It therefore came within the class of correspondence referred to by the defendants in their notice; and, having been used, should be paid for.

The opinion as to its actual value was, as we have seen, formed with reference to the time and labor employed, and was at least presumptive evidence upon the ‍‌‌‌‌‌‌‌‌​‌‌‌‌‌​‌​​‌‌​‌‌‌‌‌‌​​​‌‌​‌‌​‌​​‌​‌​‌​‌​​‍question as to the amount the plaintiff was entitled to recover, and, standing uncontradicted as in this case, might have been regarded as conclusive. Crane v Morris, 6 Peters, 598; Kelly v. Jackson, Id. 622.

Judgment reversed.

Case Details

Case Name: Babcock v. Raymond

Court Name: New York Court of Common Pleas

Date Published: Jun 15, 1858

Citation: 2 Hilt. 61