Colbert v. Caldwell

3 Grant 181 | Pa. | 1858

The opinion of the court was delivered

by Thompson, J.

It is undoubtedly settled that to charge a person with the commission of an infamous offence, the corpus of which never existed, is, notwithstanding, actionable, “for the risk of a prosecution which it induces shall be compensated in damages.” Per C. J. Gibson, in Deford v. Miller, 3 P. R. 103. And when an indictable or infamous offence is unequivocally imputed in the words used, for -instance, to say of one that he is a thief, or has Committed perjury, the terms imputing the offence being generic and expressive of every ingredient to constitute it, are per se, and without any reference to extrinsic matters, actionable. But when they are qualified or explained at the time of speaking so as to negative an indictable charge, which a court may perceive, and in view of which the judge would be bound to charge the jury that the words were not actionable, he may properly at Nisi Prius award a non-suit under the act. of assembly.

Had the charge in this case been that the plaintiff “ had obtained the goods ” from the defendant “ by false pretences,” it would doubtless have been held actionable. It would have been a clear imputation of an indictable and infamous offence, one involving fraud, deceit, concealment, and misrepresentation successfully practised. But the defendant did not stop at a point which any one would understand from the words that this was his meaning, for he negatived the turpitude and indicated the qualities by saying in_the same sentence that the plaintiff had got the goods for the purpose of making bags, and that he (the defendant) afterwards found them in an auction store.” This was simply a charge of dealing with the goods in a different manner from what the plaintiff had represented he was going to do, and there was not a word of evidence or any room to show that the defendant charged the plaintiff with procuring the credit upon a promise to make bags, and that such pretence induced the defendant to part with the goods. That taking them to auction when bought on credit is a reprehensible and injurious practice is proved, and that this was the import of the charge is evident. There was no double sense discoverable in them, and none alleged as existing, so as to-require the action of a jury. If the plaintiff had been put upon his trial for obtaining goods under false pretences, and the proof had been just what the defendant charged, no one could for a moment have imagined that he could legally have been convicted on such evidence. This case differs from the class of cases in which a groundless charge is made, but in terms clearly imputing an infamdus offence. In such cases the defendant will not be permitted to escape upon the poor excuse that the charge is so utterly a fabrication that by no possibility could the party be injured, no such offence having been committed. Eckart v. Wilson, 10 S. & R. 45. Eor, as clearly shown, the party is entitled to be compensated for the risk he runs of being prosecuted. The words in this case did not subject the party to such risk. They were not actionable, and could not be made so by innuendoes.

The evidence to prove special damages arising out of words spoken by defendant was a failure. It was shown that the plaintiff lost credit from the fact that he had ¿taken goods to auction-houses for sale to raise money, but not one of the witnesses gave the name of the defendant as his informant. Indeed, the fact was clearly shown to have existed, and this it was, as the witnesses testified, that occasioned the withdrawal of credit, and, of course, the special damages, if there were any.

Nor was the case any better for the plaintiff on his last point, that certain words laid in the narr. were actionable because spoken of the plaintiff in regard to his business. The' defect of the case in this particular was the entire absence of evidence that any such were spoken. We think the judge was right in awarding the non-suit.

Judgment affirmed.