Dorland v. Patterson, 23 Wend. 422

Dorland v. Patterson

23 Wend. 422 | N.Y. Sup. Ct. | 1840

Cowen, J.

By the Court, The concluding innuendoes in both counts infer a charge that forgery has been committed, and that the plaintiff was the guilty agent. That the words, as laid in the first count, import a charge that the name of Gilbert Dorland had been forged can scarcely admit of a dispute, when we consider them as adressed to Vanderbilt. Both he and the defendant are shown to have had a full knowledge of all the concomitant circumstances: as that the note had been given by the plaintiff for his own debt, with his father’s name as a surety, &c. Under these *424known circumstances the defendant is presented as stating *to [ *424 ] the payee that the note was a forgery ; a note coming from the plaintiff, the only person interested in getting it up ; and for whom no one would certainly volunteer to commit the forgery. Therefore, if G. Dorland’s name was forged at all, this must be done by the plaintiff. Such is the train of thought which must have been started by the suggestion, in the mind of Vanderbilt, and for the conclusion which followed, the defendant stands responsible. Tho rule is that he is accountable for the import of words as it will naturally be understood by the hearer : Harrison v. Thornborough, 10 Mod. 196; Gidney v. Blake, 11 Johns. R. 54; and explanatory circumstances, known to both parties, speaker and hearer, are to be taken into the account as a part of the words. Andrews v. Woodmansee, 15 Wend. 232. Miller v. Maxwell, 16 id. 9. This view sustains the first count. That the slander addressed to Vanderbilt is charged as at the same time reaching the ears of others who could not understand it, will not vitiate the count.

The fatal objection to the second count is, that the words are charged as addressed to casual hearers, who are not presented as knowing, or having any of those things explained to them by which Vanderbilt must have understood the words to insinuate the plaintiff’s guilt. The defendant is put forward as speaking of the plaintiff and the note, but in what terms does not appear. Non constat but his words were calculated to avert, rather than fix the charge upon him. I can collect nothing more from that count, than a general charge that the note was a forgery. There is nothing to intimate that any hearer understood particularly what the the note was, or that the plaintiff had ever seen it. It was not enough that the defendant could point the slander in his own mind, so long as it appears to have been pointless in the minds of the hearers. Miller v. Maxwell says that circumstances must be put on the record in such a way that the court may read them as part of the slander. That cannot be unless they are presented as speaking in connection with the words.

Judgment for plaintiff on demurrer to first count, and for defendant on the second count.