Paull v. Halferty

The opinion of the court was delivered, January 3d 1870, by Thompson, C. J. — This was an action in the nature of an action of slander for defamation of title. The narr. charges the defendant with falsely and maliciously misrepresenting the quality of a certain tract of land supposed to contain a large body of iron ore of which the plaintiff alleges he was about to make an advantageous sale, but was prevented by the malicious conduct of the defendant. A point was propounded to the court below by the counsel of the defendant, praying a charge that “land is not the subject of defamation, as offices, trades, professions and titles are, because the land itself is a standing refutation of any false statements in regard to it, so that it cannot be injured by them.” This the learned judge refused. The point concedes -that an action will lie for defamation of title. The authorities for that are numerous: Cro. Eliz. 196, 427; Cro. Jac. 484; Kel. 153; Styles’ Rep. 169; 54 Eng. C. L. 830; to which many others might be added. It might be true that land cannot be so misrepresented as to be the subject of damages where the reference is to its patent qualities. I fancy that a statement, however malicious, that land is without timber, when notoriously well timbered, could never be the subject of damages. But very different would be the case of those occult qualities or internal values which science and experience may be able to detect. As they never, or very rarely, can be certainly ascertained, and to some extent must rest upon opinion, it seems to me that the case is different. One may know more in regard to the value than others, and if, knowing or believing the condition to be one thing, and representing the facts in a different light and prejudicial to the owner, he does him an injury, he ought to pay the damages his misrepresentation produces, or is the direct cause of. [50] The representation in this case was, that an experienced iron manufacturer Ayas of opinion that the iron-ore in the land was hut a “ pocket” or nest, that would suddenly run out, and that he had used ore from the bank with other ores, in order to save it. This was a most successful mode of depreciating the value of the land as mineral land, and if this was false and malicious as well as injurious to the plaintiff, why shall he not be indemnified ? The defendant did not pretend to prove that Col. Mathiot ever did say what he imputed to him, or that the fact, independently of him, was true. The witness, the party in treaty for the land, says that in consequence of this communication from the defendant, having confidence in him, he refused to go on with the purchase, and thus the matter ended. As the use of the words in question Avas not in se actionable, the plaintiff proved their falsity, so far as observation, experience, judgment and the declarations of the defendant could go. This made a case for the jury, and it would, we think, have been manifest error in the judge to have affirmed the defendant’s point. It would hardly be denied, I think, if one were falsely and maliciously to represent that a piece of land and residence which a neighbor was about to sell, was very unhealthy, and thus break off an advantageous sale, that this would be actionable, if damage was. shown. For misrepresenting personal qualities, such as the imputation of the want of chastity, by which an advantageous marriage was lost, an action lies, although the words employed may not in themselves be actionable. Moody v. Baker, 5 Cowen 351, is of this sort, and there are many such in the books. For falsely representing a ship as unseaworthy, an action lies: Ingram v. Lawson, 9 Car. & P. 326. This, although the seaworthiness of the vessel might be claimed as “ a standing refutation” of the slander, being a thing easily ascertained. I regard the text of Starkie on Slander, page 172, ed. of 1869, as quite to the point in a case of this kind. It is there said, “ where a party is prevented from selling, exchanging, or making any advantageous disposition of land or other property, in consequence of the impertinent interference of the defendant, he may maintain an action for the inconvenience he has suffered.” Burr. R. 2622 is cited for this by the learned author. With all these analogies and principles to sustain the ruling of the learned judge, we think he committed no error in answering the defendant’s first point as he did. In regard to the second assignment of error, which is the answer of the learned judge to the defendant’s second point, much need not be said. It seems to us, that if the law, in answer to it, were wrong to any extent, the facts did not raise the question. The defendant’s testimony did not refer, at all, to any completed contract of purchase by McLaughlin from the plaintiff, but he claimed [51] it to have been shown by the plaintiff. But when we look at that, we discover nothing like a contract with any time for performance, and necessary details on either side, even by parol. The preliminaries to a contract were spoken of, nothing more, and this the defendant seemed to understand, for he interposed his notice not to buy a “ pig in a poke” in order to prevent its completion. A contract for the sale of land is not made by a statement of the price asked and an answer “ that I will take it,” as said in this case. Arrangements are to be made, as to how and Avhen to be paid, when the conveyance, and what kind of conveyance, is to be made, and then the reduction of the contract to writing and signing it, at least, by the party who is to convey. There was neither a parol nor written contract in evidence in this cause; such an one as a court would have allowed to have gone to the jury as a binding contract for the sale of land. I admit that if there had been a binding contract between the plaintiff and McLaughlin, for the land, and then the latter had refused to comply with his contract on account of the defamatory representations received, the authorities show that the plaintiff’s remedy would have been on the contract for damages. This is very clearly asserted by Lord Eldon, C. J., in Morris v. Longdale, 2 Bos. & Pul. 283; see also Vicars v. Wilcocks, 8 East 1; and Bailey v. Drew, 5 Barb. 297. But Ave need not enlarge; if there were error in this answer, it was innoxious, as the proof did not raise the point. The learned court entered judgment on the verdict, although it had reserved the question, whether under all the facts the plaintiff was entitled to recover. This was certainly insufficient as a point reserved, Clark & Thaw v. Wilder, 1 Casey 314, and the plaintiff in error cannot ask a review here of anything but what he took exceptions to on the trial. We have, however, discussed all the questions in the case. Judgment affirmed.