Cutter v. Adams

The opinion of the court was delivered by Royce, J. -It is contended that the plaintiffs were no4 entitled to recover, admitting the representation to have been made precisely as the witness, Smith, stated it. And the objection is, that, in this kind of action, the representations proved should correspond as literally and fully with those alleged in the declaration, as is required in an action for slanderous words. If there is any such analogy as the objection supposes, it is only because the plaintiffs’ injury, in both cases, results from declarations wrongfully made by the defendant. Intrinsically the two actions have little or no resemblance. In slander the ground of action is the injury resulting from impaired reputation ; whereas, in actions of the present class, pecuniary injuries only, are to be redressed. The injury in one ease is effected by a groundless and malicious attack upon the plaintiff’s character ; in the other by deceit, operating to mislead him to his prejudice. In the one case the damage sustained is not supposed to result from any agency of the plaintiff himself; in the other, his own misguided act has occasioned it. It may be added that, according to the forms of declaring, furnished by Mr. Chitty and other approved authorities, it is allowed, in this sort of action, to allege the substance of the representation, without attempting a literal recital. This is a license not permitted in the action of slander. Stark. S1. 266; Newton v. Stubs, 3 Mod. 71. But should the proposition contended for, be granted, it would not warrant the conclusion assumed. It is not required, in slander, that the identical expressions charged should be proved, and much less that they should all be proved ; it is enough that words of the same import are proved, and that, to a sufficient extent, to show a legal cause of action. In this view, there can be no doubt that the testimony of Smith sufficiently tended to support the declaration. The remaining questions arise upon the charge of the judge. We think his instructions, in reference to Smith’s testimony, were unobjectionable. The testimony of Chapman and Fillmore tended to impeach the witness, and the evidence of his good character tended to support him. Under [243] such circumstances it became, as the judge remarked, a mere question of credit; and the jury were properly left at liberty to act upon the testimony of Smith, if they thought the impeaching testimony had been fully counteracted. As the cause on trial was neither a criminal prosecution, nor an action of a criminal nature, the judge was, also, warranted in charging that the plaintiffs would be entitled to a verdict, if a fair balance of evidence should be found in their favor. The defendant requested instructions to the jury, that if the representation was as Chapman had stated it, the plaintiffs were not entitled to recover. The charge was : “ that if the goods were delivered to Ferris in consequence of the •representation made by the defendant, the plaintiffs trusting therein, it was all that the law required in this particular ; and as to the fraudulent allegations in the declaration, it was incumbent upon the plaintiffs to prove them substantially as alleged.” In passing upon this part of the charge, it is to be borne in mind, that but a single representation had been made ; and this must be taken to have been as Smith had stated it, or as Chapman had stated it. And though it may be more probable that the jury proceeded upon the former than the latter statement, it is not certain, upon the record, that they did so. The statement of Chapman is now claimed, in argument, as sufficient to support the action, and, for aught appearing in the case, it may have been so claimed at the trial; indeed, the defendant’s request for a charge in reference to that statement, renders the fact probable. And since the judge did not distinguish between the two statements, the defendant has-a right to insist, that the verdict for the plaintiffs may have been found upon Chapman’s statement. This raises the question whether, under their present declaration, the plaintiffs were entitled to recover upon the representation as given by Chapman. It is not, strictly, a question of variance, but rather a question as to the extent of proof. And unless the representation, as stated by Chapman, tended to prove the substance of some one count in the declaration, the judge committed aif error in declining to charge, as requested. Now the only clause in the testimony of Chapman which seems to have tended, even in substance, to support any averment in [244] the first count, was the defendant’s declaration that Ferris was “ doing a fair business.” But this, being preceded by the remark that his means were small, did not satisfy Smith, who immediately inquired if he had other means aside from his business. It can scarcely be pretended that the defendant’s reply (concerning the property in expectancy for the wife and children of Ferris) had a tendency to prove the alleged assertion that he was worth five thousand dollars. I shall next inquire whether this testimony had a proper tendency to prove the second and third counts in the declaration. Here the allegation is, that the defendant asserted and represented, in substance, that Ferris was a fit person to be trusted, and the plaintiffs might safely sell him goods on credit. As no limitation is expressed, an indefinite, or general, credit is to be understood ; such a credit as Ferris, in his business as a country merchant, might think it beneficial to ask, or, perhaps more properly, such credit as most merchants in the country are accustomed to receive. The question is, whether it should have been inferred, as the natural and obvious import of the defendant’s conversation, as detailed by Chapman, that Ferris was a fit person to receive such a credit. And as a means of testing the correctness of such an inference, we may suppose the statement of Chapman to have been declared upon as he gave it, and the representation alleged in these counts to have been subjoined by way of innuendo. It would then be required, that the representation so declared upon should justify and support the innuendo which professed to allege its meaning. The case of Gainsford v. Blackford, 6 Price, 36, and 7 Price, 544, furnishes an illustration. The declaration set forth that the defendant, on being inquired of, as to the circumstances of a person asking credit of the plaintiff, said that he had been paid a debt due to himself from that person, and that he was ready to give him credit for any thing he wanted. It was held that this colloquium did not support an innuendo alleging the meaning to be, that such person was in good circumstances, and fit to be trusted, generally, with goods, on credit. In the case cited, the defendant was doubtless guilty of insincerity and fraud, because he knew that the person referred to had recently obtained his discharge under the insolvent laws. The case [245] is, therefore, not to be understood as deciding that the plaintiff was without remedy against the defendant, but only that he had assumed to construe the defendant’s words in a sense beyond their appropriate meaning. We think the same should be said of the second and third counts of the present declaration in reference to the testimony of Chapman. That testimony does not, in our opinion, sustain the general and unqualified allegations of those counts. The result is, that the defendant was entitled to the charge requested. Were the averments in the declaration properly adapted to such a case as this testimony tends to make out, the rights of the parties would rest upon grounds not affected by the present decision. Judgment reversed.