Terrini v. New England Steamship Co.
244 Mass. 325
Mass.
1923
Check Treatment
Braley, J.

The plaintiff, a grocer doing business in New Bedford, bought eleven cases of macaroni of a wholesale dealer in the city of New York which was to be shipped to him over the defendant’s steamship line and, having received an “invoice bill,” he sent a clerk two or three times and telephoned to the defendant’s office "to see where the macaroni was.” It was not delivered, and, after being in the defendant’s possession nine days uncalled for, its agent, for whose acts the company is responsible, Mills v. W. T. Grant Co. 233 Mass. 140, wrote the shippers a letter, the material part of which is as follows: "Under date of May 4th, you shipped 11 boxes of macaroni consigned to S. Trini, this city. These goods are on hand at our pier unclaimed by consignees, and we also understand that consignees have filed a petition in Bankruptcy. Please advise us as to what disposition you wish made of these goods.” The plaintiff testified that about two weeks later the agent of the shippers showed him the letter, and it was conceded that the plaintiff had not filed a petition in bankruptcy although another grocer next door to the plaintiff’s place of business had “closed up within a few days of” the date of the letter. The jury could find that because of the letter the order for the macaroni was cancelled and other dealers with whom he had executory contracts for supplies declined to fill the orders.

It is contended by the plaintiff that the letter was a libel, and that its publication under the circumstances entitled him to damages. But the letter was written and mailed in the ordinary course of the defendant’s business to ascertain what it should do with the shipment in which the shipper and seller had a direct interest. It has often been decided that under such conditions a plaintiff, on whom the burden of proof rests, cannot recover without proof of actual malice, of which no evidence is found in the present record. Joannes v. Bennett, 5 Allen, 169. Brow v. Hathaway, 13 Allen, 239. Sweet v. Post Publishing Co. 215 Mass. 450. Doone v. Grew, 220 Mass. 171,182. Childs v. Erhard, 226 Mass. 454. See Squires v. Mason Manuf. Co. 182 Mass. 137.

*327The second, third and fourth counts go upon the ground that the defendant maliciously procured the breach of the contracts, previously described, on which the plaintiff relied for supplies of goods to enable him successfully to carry on his business. But there is no evidence that the defendant knew of their existence, and that with such knowledge it intentionally and malevolently persuaded the dealers and sellers to refuse performance. May v. Wood, 172 Mass. 11. McGurk v. Cronenwett, 199 Mass. 457, 461.

The exceptions to the rulings on evidence have not been argued, and, a verdict for the defendant having been directed rightly, judgment thereon is to be entered in accordance with the terms of the report.

So ordered.