I. Several of the errors assigned relate to matters regarding which a liberal discretion must be allowed to the judge conducting the trial, or there could never be an end to litigation. Of this class was the ruling of the circuit judge in permitting the plaintiff to show what his sales were for the year 1873. The objection to this was, that the showing-covered some time which was previous to the publication complained of. It might have been better, perhaps, if the
II. It is objected that the plaintiff was allowed to shoiv that those who sold pianos of a particular make were called in the trade, “agents,” though they bought and sold on their own account. The importance of the showing appears from the declaration, in Avhich the plaintiff is described as agent. But there can be no legal objection to such evidence. It is always competent to show that a particular word has acquired a peculiar meaning in a certain business, and to construe it accordingly, when it is made use of in reference to that business. — Coit v. Commercial Ins. Co.,
III. Complaint is made that plaintiff was allowed to put in evidence other publications than the one counted upon, but like it, which were made on the same or the following day. But this was competent, as bearing on the question of malice. — Plunkett v. Cobbett, 5 Esp., 136; Finnerty v. Tipper, 2 Camp., 72; Macleod v. Wakley, 3 C. & P., 311; Wallis v. Mease,
IV. The question to the plaintiff, what was the comparative number of Steinway and Knabe pianos sold by him from 1865 to 1867, seems to us proper. The defendants had undertaken to show that plaintiff while selling both pianos had recommended the Knabe as best, and this was important to their defense. The answer to this question might have some tendency to rebut that showing, and on that ground was competent.
V. The charge of the court, that to make out a defense. the truth of the publication must be proved just as it is charged, and that proving the truth of part of the charge is not a defense, was excepted to, as was also the refusal of the judge to charge, that if the jury believed certain witnesses for the defense who were named, they must find a verdict for defendants. The witnesses named were called for the purpose of showing that plaintiff, while selling both pianos, recommended the Knabe as best. Their testimony was not very direct, and we cannot say that if believed it would establish
VI. The judge charged the jury that “malice is to be presumed from the publication, and its falsity; that to rebut this presumption defendants must prove that they made the publication in good faith, believing it to be true in all its essential parts, and for a proper purpose.” Defendants insist that the purpose is immaterial, if they believed what they published, and made the publication in good faith. This might be so'if the publication had been true; but good faith cannot protect a false publication; nor can one excuse himself for making a mistaken assault upon his neighbor’s reputation by showing the absence of malice, when, even had his charge been true, there was no proper purpose in bringing the matter to public notice. If one makes an attack which the occasion does not justify, there is no injustice to him in requiring him to show its truth.
VII. The defendants requested the court to charge the jury, that they might consider a certain advertisement of the plaintiff preceding the publication complained of, and if they found that advertisement provoked such publication, they might consider it in mitigation of damages. The advertisement contained no reference to the defendants, and was only a very boastful proclamation of the merits of the Steinway pianos. The judge was right in holding that this was no provocation for a libel.
VIII. It is alleged for error that the judge refused to charge, that unless the jury should find that the publication complained of occasioned an actual injury and loss of trade to the plaintiff, then, under the declaration, which only alleged such injury, the plaintiff could only recover nominal damages. That might be true if the words had not been actionable per se; but being so, if the jury found they were maliciously published, the jury could not, whatever the proof as to the influence upon business, be thus limited in their verdict. In many cases it is impossible to show actual dam
IX. The judge was requested to instruct the jury, that a certain letter by the plaintiff in which he had spoken of selling the Knabe pianos “for the best,” was an admission that he had sold them as superior to the Steinway pianos. But that would have been a forced construction. Things may be “best,” in the sense of ranking in the very first class, without being superior to each other, and one piano may be best for one purpose, and another for another. The letter seems to have been- called out by some charge conveyed to Mr. Knabe that plaintiff was recommending the Stein way pianos as 'superior to the Knabe pianos; and while by implication at least it denies that charge, it is not clear that it goes further.
No error is discovered in the record, and the judgment must be affirmed, with costs.