Boynton v. Shaw Stocking Co.

C. Allen, J. An action will not lie for mere disparagement of the plaintiff’s goods, without averment and proof of special damage. Dooling v. Budget Publishing Co. 144 Mass. 258. But the plaintiff contends that the words used by the defendant contain an imputation upon his character,- and that they imply that he was deceiving the public by advertising goods as of first quality which he knew were damaged. The question, therefore, is this.: Taking the words in their natural sense, and without a forced or strained construction, do they contain this imputation ? If the words may fairly bear that meaning, then the case should have been submitted to the jury; otherwise not. Twombly v. Monroe, 136 Mass. 464. Simmons v. Mitchell, 6 App. Cas. 156. Capital & Counties’ Bank v. Henty, 7 App. Cas. 741, 744, 771, 772, 790, 793. We are of opinion that the words, fairly construed, do not bear that meaning, and that, in order to reach such a construction, it is necessary to include something which the defendant did not say, and which its words do not imply. No doubt a case might be imagined where, from peculiar circumstances, — as, for example, from the nature of the article offered for sale, or from the long continued habit of selling goods of a different character or quality from that represented, — it would be a natural inference from a charge otherwise like that which is the subject of this action, that the party was practising fraud or imposition, or was guilty of trickery or meanness. In the present case, such an inference does not naturally arise, and the object of the defendant’s advertisement, judging from its language, appears to have been rather to uphold and maintain the character of its goods than to attack the plaintiff’s character. The court might properly withdraw the case from the jury. See Boynton v. Remington, 3 Allen, 397; Evans v. Harlow, 5 Q. B. 624; Solomon v. Lawson, 8 Q. B. 823. Exceptions overruled.