Tobias v. Harland, 4 Wend. 537

Tobias v. Harland

4 Wend. 537 | N.Y. Sup. Ct. | 1830

By the Court,

Marcy, J.

Special damages are not so alleged in the declaration that proof of them could be received on the trial. The general allegation of the loss of customers is not sufficient to enable the. plaintiff to shew a particular injury. (Bull. N. P. 71. Saund. 243, n. 5. 1 Str. 666.) If the plaintiff in this suit can recover at all it must be because the words are actionable in themselves. Whether they are so or not is the only question presented by the demurrer.

The words charged do not directly impeach the integrity, knowledge, skill, diligence or credit of the plaintiff. They only relate to the quality of the article which he manufactures, or in which he deals. The words in both sets of counts which relate to a particular watch, and those which are obviously mere comparisons, are clearly not actionable. No *541instance can be found, I believe, where an action has been sustained on words for misrepresenting the quality of any single article which a person has for sale, unless special damages are alleged and proved. To impute ignorance to an attorney or counsellor in a particular cause, or want of skill to a physician in relation to the disease of a particular patient, is not actionable. (8 Johns. R. 64. Cro. Eliz. 620.) On the same principle, an allegation that a manufacturer has made a particular article bad cannot be a slanderer. A contrary doctrine would, in my apprehension, be exceedingly pernicious. It would render a man liable to be called into court to justify an unfavorable opinion he might express of any manufactured article which another had for sale. It would involve a strange contradiction to hold a man answerable for words imputing defects in an article of merchandize, and to exonerate him from responsibility when he charges his neighbor with a defect or want of moral virtue, or the neglect of moral duty or obligations. A charge of the moral deficiencies above referred to is declared not to be actionable. (3 Wils. 177.)

I do not find that even an attempt has been made to sustain an action on words of comparison. To say that the watches manufactured by the plaintiff are inferior to those made by any other particular manufacturer, can never be held actionable where no special damages result therefrom, without embarrassing the freedom of judgment in matters of private concern, and making errors of opinion in relation to the common and necessary transactions of life a fruitful source of litigation.

It only remains to determine whether an action can be maintained for those words which allege that the plaintiff’s watches were not good, or were bad. Good and bad are generally terms of comparison. The same article may be called, not inaccurately, good when compared with one of the same kind of a much inferior quality; and it may, with equal correctness, be characterized as bad when spoken of with reference to the most perfect article of the kind. But suppose the words to be spoken positively, and not comparatively, I do not believe they are actionable per se. The *542cases referred to on the argument for the plaintiff do not go par enough to support the action in this case. Those which seem to give the most countenance to this action relate to charges against brewers. It is true that in England it has been held actionable to say of a brewer that he makes unwholesome beer; (Freeman’s Rep. 25; 1 Vin. Abr. 477;) but that case is put expressly upon the ground that it is a statutable offence to make and sell such beer. It is very ev ident, from the language of the court, that if the charge had not imputed to the plaintiff deceit or mal-practice in adulterating his beer, the words would not have been adjudged actionable in themselves. In the case of Dixie v. Fenn, (Sir Wm. Jones, 444,) the words were spoken of the beer made by the plaintiff, and were extremely disparaging, but they were held not to be actionable. They represented the beer to be worthless, but not unwholesome. The case which most resembles the present is one found in 12 Mod. 420, wherein the words charged were, “ The defendant keeps nothing but rotten goods in his shop.” The court say, if the words were only that he had rotton goods, the action would not lie ; for the slander is, to have nothing but rotten goods. It appears to me that this case proceeded upon the ground that the words imputed deceit or mal-practice; hence the distinction which' the court make between having rotten goods and nothing but such goods. If he had nothing but rotten goods, he must of necessity practice an imposition upon all who dealt with him. The case of Tobart v. Tipper, (1 Campb. 330,) was for a libel, and the rules in such a casd differ from those that govern slanderous words spoken; but even in that case the report shews that something more than the imputing to the plaintiff the publication of an absurd poem was contained in the charge. All of the piece complained of is not, I believe, stated; and I infer from some of the remarks of Lord Ellenborough that the action was not maintained for characterizing the plaintiff’s work as absurd, but for imputing to it an immoral tendency. It was not represented as merely good for nothing, but as having noxious qualities. The question submitted to the jury was whether the defendant, by the publication, intended to put down a nuisance to *543public morals, or to prejudice the plaintiff. Nothing can be drawn from that case to establish a principle that will sustain this.

It appears to me, that when the words are spoken, not of the trader or manufacturer, but of the quality of the articles he makes or deals in, to render them actionable, per se, they must import that the plaintiff is guilty of deceit or mal-practice in the malting or vending -of them. The words used by the defendant here do not import such charge, nor do they amount to a charge of the want of skill. They do not assert that the defendant could not make or did not deal in good watches, or that he practiced any deceit in malting them by which purchasers were imposed on.

The principle on which this action must be sustained, if it be sustainable, would made a new class of words actionable ; and when applied, as it would be, to the business eommuni-s cations of every description of citizens, its practical effects would, in my judgment, be alarming.

Judgment for defendant.