Chapman v. Ordway

87 Mass. 593 | Mass. | 1863

Merrick, J.

The evidence derived from the testimony of Lord was inadmissible, and should upon objection made to it have been excluded. It had no tendency to prove the truth of either of the alleged defamatory accusations set forth in the declaration as having been uttered and published by the defendant. It is averred in the first count that he accused the plaintiff of “ the crime of buying and selling by unsealed weights and measures ; ” and in the second, that he accused him of “ the crime of gross fraud and cheating at common law.” Giving to the testimony its utmost force, and all the import and meaning of which it is really susceptible, or of which the defendant himself contends that it is capable, it shows only the intention or purpose of the plaintiff, upon one particular occasion, to cheat and defraud other persons, if he could induce the individual to whom he applied to cooperate with him in the sale of damaged meat. But it was a mere application on his part; and it does not appear from any statement in the bill of exceptions, nor has it been suggested that in fact, any evidence was tendered, or offered to be produced, to show that the application was successful, or that anything was done or attempted to be done in pursuance of it. Such a proposal was undoubtedly very discreditable to the party making it, but it was not a positive violation of law, and did not constitute a criminal offence. The mere proposal to another to assist him in selling “ damaged meat ” certainly indicated no intention on the part of the plaintiff to sell it by “ unsealed weights ; ” nor, unaccompanied by proof, or the offer of proof, of some additional act, admission or declaration connected with or attending it, had it any tendency to show that a fraudulent or criminal purpose was actually accomplished. The testimony should therefore, considered in reference to the circumstances under which it was offered and objected to, have been rejected.

The evidence was inadmissible in mitigation of damages. It is only the general character of the plaintiff, or his rank and condition in life, which may be proved for this purpose, and not particular instances of misconduct. Wolcott v. Hall, 6 Mass. 514. Alderman v. French, 1 Pick. 1. Bodwell v. Swam, 3 Pick. 376. As it was not admissible for this purpose, and had no tendency to support the justification set up by the defendant that the alleged defamatory accusations were true, its only effect could have been to create a prejudice against the defendant in the minds of the jury, and it should not therefore have been submitted to their consideration. Exceptions sustained.