211 F. 961 | 2d Cir. | 1914
The complaint sets forth that one Cummins was a stockholder and director of the Carnegie Trust Company, which was taken possession of in January, 1911, by the Banking Department of the state of New- York to be liquidated for the benefit of its creditors and that Charles H. Hyde was chamberlain of the city of New York. That shortly after the action of the Banking Department there appeared, from day to day, numerous editorials and articles in the columns of defendant’s newspaper, wherein and whereby the said Cummins and the said Hyde were, both openly and by imjplication, accused of various illegal and criminal acts in connection with the affairs of the Carnegie Trust Company; that among other things and more especially they were accused of borrowing and permitting their business associates and personal friends to borrow large sums of money from said trust company, upon insufficient security or upon no security at all, in fraud of the rights of the creditors and stockholders of said Carnegie Trust Company, and in violation of the laws of the state of New York. That in March, 1911, the defendant published in the columns of its newspaper an article headed “Plan on foot to pay depositors of Carnegie Trust Company in full,” and that said article contained the following language:
“The men who have thus come to the aid of the trust company have taken into consideration the long list of bills purchased, which really are promissory notes, upon which the company lent money to Cummins and the latter’s friends. They hold, however, that the notes will yield much more than was expected, now that the public knows about them, but even if they do not, they say they form only a comparatively small portion of the real assets.
. “In the following partial list of the makers of bills or notes the names of some friends of the City Chamberlain Hyde may be recognized.”
That a list of names and amounts is thereafter given as and for said “partial list,” among which appears the name “Charles P. Wiffard,” followed by figures $10,000.
By innuendo the complaint then alleges:
■ “That by the language above quoted the defendant meant and intended to mean, and was understood by the general public as meaning, that the moneys obtained by the persons named in said list were obtained by them through their friendship with or business connection or identity with the said Cummins or the said Hyde, with the dishonest purpose on the part of the persons so obtaining said loans of never repaying the same. That the spelling of the name of plaintiff was a mistake in the printing of the list; but it was the intention of defendant to insert therein the plaintiff’s name, and the name ‘Charles P. Woffard’ on such list was intended for the plaintiff and was so understood by the general public. That by the insertion of this plaintiff’s name*963 in said list the defendant meant and intended to mean, and was understood by the general public to mean, that plaintiff, through the friendship of or common interest with the said Cummins or said Hyde, or both, had obtained a loan of money from the Carnegie Trust Company with the dishonest purpose of never repaying it; and that by the figures $10,000 being set out in said list opposite said name was meant, intended to mean, and was understood by the general public to mean, that this plaintiff then owed to the Carnegie Trust Company the sum of $10,000 upon a loan obtained with the dishonest purpose aforesaid.”
The complaint further states that subsequent to the -publication complained of Cummins and Hyde were indicted; Cummins was convicted. What bearing these facts are supposed to have upon the prior publication it is difficult to understand.
A' majority of the court think it putting too much- strain on the theory of “innuendo” to justify the conclusion that the article complained of .is a libel on the plaintiff. Even if it were conceded that the prior publications of the newspaper might lead a reader to suppose that every friend of the chamberlain, who borrowed money from the trust company without security, did so “with- the dishonest purpose * * * of never repaying the same,” and such concession would seem to put an excessive strain on “innuendo,” the only statement in this issue is that in the published list the names of some friends of the chamberlain may be recognized. It is not stated that all the names on the list are “friends”; on the contrary, the phraseology would seem to indicate that some of them are not. No fact and no statement of defendant which is set forth in the complaint would, as it seems to us, warrant a jury in finding that the defendant has asserted, directly or indirectly, that the plaintiff borrowed money from the trust company with the fraudulent and dishonest intention of not repaying the loan.
The judgment is affirmed.