73 Mo. App. 217 | Mo. Ct. App. | 1898
This action is for the slander of title to land. Plaintiff recovered in the trial court. The petition was in three counts, but at the close of testimony for plaintiff a demurrer to the evidence was sustained as to the first and third counts and overruled as to the second.
It appears that plaintiff was the owner of the land, the title to which he alleges defendant slandered, and that he owed defendant a sum of money; that being in need of more funds he borrowed more money of defendant, and to secure the aggregate sum of his indebtedness he made an absolute deed to the land to defendant and took back from defendant a lease for five years whereby he was to pay’ certain sums semiannually as rent. The lease provided that plaintiff had authority to sell the premises during the term, at any sum in excess of the consideration in the deed from plaintiff to defendant; such excess to be plaintiff’s.
Afterward, plaintiff and defendant came to a disagreement as to the true relations existing between them by reason of the deed and the lease aforesaid. Plaintiff’s claim was and is now, that the whole transaction amounted to a loan from defendant to him of the sum named as the consideration for the deed and
Afterward plaintiff brought this suit on account of defendant’s alleged slander of-his title whereby he was damaged. The suit is based on the following state of facts as made out by plaintiff: During the term of the lease plaintiff had agreed to sell the premises to one Groves for $50 per acre, a price amounting, in the aggregate, to a sum largely in excess of the. loan, he, Groves, being ready and willing to buy. But that defendant willfully, wrongfully and falsely stated to Groves that plaintiff had no interest or equity whatever in the lands, and thereby prevented said Groves from making the purchase. That plaintiff was compelled to institute the suit aforesaid whereby the defendant’s lien was satisfied and released. And that afterward plaintiff sold the land for $42.50 per acre, thus receiving a much less sum than he would have received from Groves if defendant had not committed the wrong as above set out.
Defendant relies upon several points to reverse the judgment. He contends that since plaintiff obtained a decree against this defendant redeeming the land he is barred of the present action of damages for slander
This case is, however, not of the class just referred to. Though the injury complained of in this ease may have come about in a course of causation, by reason of the contractual relation existing between the parties and which was the subject-matter of the former suit, yet the causes of action are wholly distinct and independent of each other. Thus if one hire a horse and buggy to another, his recovery of the hire will not bar a subsequent action for an injury done to the buggy by the hirer. Shaw v. Beers, 25 Ala. 449. By course of remote causation the present action might be said to be dependent upon the former; that it to say, but for the contract between the parties securing plaintiff certain rights or title to the land, the occasion for defendant’s defamation would not have arisen. But it is apparent that such course of reasoning is unsound.
2. It is next urged that the petition does not state a cause of action in slander since it fails (as is con-fenclecD to allege malice in defendant. The petition was not demurred to, and the *• ' question is made on a motion m arrest. We think the point was properly overruled by the trial court. It is true the pleader has not used the word
3. It is next claimed that the court erred in refusing defendant’s instruction number 5, wherein, in effect, it is declared that in claiming that plaintiff had no right or title to the land, defendant was asserting title in himself and the difference between the parties was a matter of dispute, that therefore plaintiff could not recover. The instruction was faulty in omitting any hypothesis of good faith in defendant in making claim in himself. It is, of course, not actionable for anyone to assert and maintain his own rights, or to assert what he honestly believes to be his own right to a piece, of property, whether real or personal, though he be in error as to the claim. But at the same time no one will be permitted to willfully and falsely claim title in himself to
We are not unmindful that great abuse, as well as great wrongs, might be perpetrated against parties making claim to things in which they have an interest, if they are to be mulct in damages which may flow from such claim. To guard against such injustice it is, as before stated, necessary to show that the party charged acted not merely ignorantly or mistakenly, but maliciously and falsely, without so much as a probable cause, in the light of his surroundings and sikiation, to believe in the truth of his statement.
Complaint is made of instructions given for plaintiff and of the refusal of those offered by defendant and placing in their stead those given by the court ot its own motion. We have gone over them and find that, taken in their entirety, they fully cover the issues made. Prom a consideration of them the jury would not be misled; on the contrary, it seems to us, could not fail to understand the case in all material respects. Prom them, taken together, the jury must'have understood that in order to find for plaintiff they must believe that defendant maliciously and falsely spoke the defamatory words of plaintiff’s right, title or interest in the lands whereby plaintiff was damaged in losing the sale to G-roves, as shown by the testimony. Not only that, but the jury were, by such instructions, told that defendant could
