Knowles v. Peck
42 Conn. 386
Conn.
1875
Check Treatment
Pardee, J.

Upon the application and complaint of H. B. Goodyear and others, owners of certain patents for a new and useful improvement in the manufacture of india-rubber, the United States Circuit Court for the district of Connecticut on the 7th day of December, 1868, enjoined the plaintiff from making or selling any dental plates or other articles made of india-rubber mixed with sulphur.

The patentees, believing that the plaintiff disregarded the injunction, were desirous of knowing whether he still kept in his possession the substance known as vulcanized rubber, which was the subject of one of their patents, and whether he would use or sell it in any manner or under any circumstances, and if so, in what manner and under what circumstances; what he would do and how far he would go in the direction of a violation, if opportunity presented itself to him. They therefore, through Bacon their general agent, and through Peck, one of the defendants, their special agent for this particular matter, sent Jeffreys, the other defendant, to the plaintiff, with instructions to ask him to make for Jeffreys a set of teeth upon a hard rubber plate. This request the plaintiff complied with in the manner set forth in the motion. He delivered the teeth to Jeffreys and received eight dollars therefor. Subsequently Jeffreys made, and Peck sent to the patentees, the affidavit set out in the motion, upon the making and sending of which this action is based.

The case as presented by the motion, taken in connection with facts determined by the jury, does not disclose any initiatory act, in combination or otherwise, on the part of the defendants to induce the patentees to institute proceedings in *396the Circuit Court of the United States against the plaintiff. On the contrary the patentees began to seek for the information of their own motion, and their first action was prompted by a suspicion which they already entertained. They subsequently called the defendants to their aid as assistants or agents in obtaining knowledge which might thereafter be of value to them in the protection of their patents, if they should see fit to avail themselves of it.

The plaintiff admits, in substance, that the plate made for Jeffreys was made for him as an ordinary customer and in ignorance of the reason for his application therefor; that he did not then act, or believe that he had any right to act, as licensee of the patentees; that they had not intended to grant, and he had not intended to receive, any such right; and that it was contrary to the will of both parties that the relation of licensor and licensee should exist between them.

And if it be conceded that, by reason of the fact that the patentees asked the defendant Jeffreys to test the'intention of the plaintiff, his request of him to make and sell the plate involved an offer on their part to the plaintiff of a permission to do the act, yet the plaintiff being utterly ignorant of such offer, did not then actually accept it by word or deed. The question as to his interest remains unaffected. What he then did was done in furtherance of his intention to sell the plate without paying a royalty thereon.

The case does not call upon us to determine whether for an act performed under such circumstances the court would or would not punish the plaintiff for a violation of the injunction. The patentees, for the better protection of their property, had a right to resort to the method adopted by them of learning whether he had the patented material in his possession and his intention as to the use and sale thereof; and under the circumstances of this case Jeffreys was entitled to the privilege of communicating to them the knowledge thus obtained by him upon these points. And even if we should concede that his communication involved an erroneous conclusion on his part as to the legal consequences which would follow the act of the plaintiff as described in the affidavit, the court *397properly submitted to the jury the question as to the malicious intent or the good faith of the defendants in malting and sending it to the patentees. The charge falls within the principle laid down in the following cases.

In Harrison v. Bush, 32 Eng. Law & Eq. R., 173, Lord Campbell, C. J., said: “A communication made bona-fide upon any subject matter in which the party communicating has an interest or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contains criminatory matter which, without this privilege, would"be slanderous and actionable. Duty, in the proposed canon, cannot be confined to legal duties which may be enforced by indictment, action or mandamus, but must include moral and social duties of imperfect obligation.”

In Toogood v. Spyring, 1 Cromp. Mees. & Ros., 193, Parke, B., said: “If communications be fairly warranted by any reasonable occasion or exigency and honestly made, such communications are protected by the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.”

In Coxhead v. Richards, 10 Jurist, 984, Tindal, C. J., said: “ I do not find the rule of law so narrowed and restricted by any authority that a person having information materially affecting the interests of another, and honestly communicating it, in the full belief, and with reasonable grounds for the belief, that it is true, will not be excused, though he has no personal interest in the subject matter.”

In Cockayne v. Hodgkisson, 5 Car. & P., 548, Parke, B., said: “ I have already said that every willful and unauthorized publication to the injury of the character of another is a libel; but where the writer is acting on any duty, legal or moral, towards the person to whom he writes, or where he has by his situation to protect the interests of another, that which he writes under such circumstances is a privileged communication.”

The rule is thus stated by the court in the case of Lewis & Herrick v. Chapman, 16 N. York, 369: “ There is no doubt *398that where the communication is made bonft-fide in answer to inquiries from one haring an interest in the information sought, or where the relation between the parties by whom and to whom the communication is made is such as to render it reasonable and proper that the information should be given, it will be regarded as privileged.”

In the case of Washburn v. Cooke, 3 Denio, 110, determined in the Supreme Court of the state of New York, and cited approvingly in the case of Lewis & Herrick v. Chapman, Bronson, C. J., said: “In this case it may be collected from the evidence given, and from that which was offered and rejected, that the sheriff had made a levy upon certain cattle which had afterwards been wrongfully driven away, in consequence of which the sheriff was likely to suffer damage; that the sheriff thereupon employed the defendant to ascertain and inform him of the facts in relation to the wrong which had been done and to advise what course it was best to pursue; and that the defendant wrote the letter in question to his employer concerning the subject matter of his employment. It was the communication of an agent to his principal, touching the business of his agency, and not going beyond it. The charge of larceny, of which the plaintiff complains, was directly pertinent to the matter in hand; and I think the letter must be regarded as a privileged communication. The occasion upon which it was written sufficiently rebuts the inference of malice, which under other circumstances would have arisen from the injurious nature of the charge. In such a case, although there may be no proof of the truth of the accusation, and even though it may be shown to be false, the jury are not to render a verdict for the plaintiff as a matter of course. They must first be satisfied, on looking at the whole case, that the defendant did not act honestly and in good faith, but intended to do a wanton injury to the plaintiff.”

In Bradley v. Heath, 12 Pick., 164, Shaw, C. J., says: “When words imputing misconduct to another are spoken by one having a duty to perform, and the words are spoken in good faith and in the belief that it comes within the discharge oí that duty, or where they are spoken in good faith to those *399who have an interest in the communication and a right to know and act upon the facts stated, no presumption of malice arises from the speaking of the words, and therefore no action can be maintained in such case without proof of express malice.”

In Gassett v. Gilbert, 6 Gray, 97, Bigelow, J., says: “A 'party cannot be held responsible for a statement or publication tending to disparage private character, if it is called for by the ordinary exigencies of social duty, or is necessary and proper to enable him to protect his own interest, or that of another, provided it is made in good faith and without a willful design to defame.”

A new trial is not advised.

In this opinion the other judges concurred.