3 Wend. 291 | N.Y. Sup. Ct. | 1829
By the Court,
The defendant was not justified in speaking the words in question on the ground that he and the witness to whom they were [addressed were both directors of the same bank. They were not spoken at the board of directors with a view of communicating information, which might properly influence the operation of the board. A bank director would undoubtedly be justified in communicating to his associates any report which he might have heard in relation to the solvency or circumstances of the customers of the bank, or probably of any other person. The legal presumption would be that his motive in making the communication was to guard the interest of the institution to which he belonged; and it would be incumbent on the plaintiff, under such circumstances, to repel this presumption by proof of express malice. (2 Phil. Ev. 109, note a. Starkie on Slander, 228. 3 Johns. R. 180. 1 T. R. 110. Burr. 2425. Bull. N. P. 8.) But where the words are spoken hi the street or market place, and there is nothing to shew that they were intended an a confidential communica
The evidence of N. G. Carnes, that he heard the report that the Sewalls had failed, and that in consequence thereof his house took from the Sewalls business worth $1500 a year, was properly rejected. This evidence was offered for the purpose of showing the special damage sustained by the plaintiff from the words spoken by the defendant. There was no evidence that the report heard by the witness came from the defendant; it was not traced to him. The judge decided correctly, that the plaintiff could not recover for any special damage, unless he could trace the report which occasioned the damage to the defendant; that where the plaintiff claimed general damands only in consequence of a report started or repeated by the defendant, the jury might take into consideration the probable effect of such slander, and give damages accordingly; but where a specific injury is alleged, the report which occasioned it must be clearly traced to the defendant.
I am inclined to think the words were actionable in themselves being spoken of the plaintiffs as merchants. The witness inquired of the defendant, “ If there were any failures yesterday; to which he replied, “ Not that I know of, but I understand there is trouble with the Messrs. Sewalls.” This answer in connection with the interrogation, was most obviously calculated to convey an injurious impression in relation to the mercantile standing and credit of the plaintiffs. The witness had heard of no failures, but he had heard that the Sewalls were in trouble. Every person would understand from this expression, when used in reply to such a question, that the Sewalls were embarrassed, were very hardly pressed and would probably fail, and such was the sense in which the witness understood them. Any words which in common acceptation imply a want of credit or responsibility, when spoken of a merchant, are actionable. (Starkie on Slander, 117, and cases there cited. 2 Phil. Ev. 100. 5 Johns. R. 476. 17 id. 218, and cases there cited.)
The nonsuit must be set aside and a new trial granted.
