Smith v. Hollister

Poland, J. I. The written admission or affidavit signed and sworn to by Brown, one of the plaintiffs, was correctly admitted as evidence. He was one of the plaintiffs of record, and, for aught — 703 — that appears a party in interest equally with the other plaintiffs. The proper weight to he given to the paper as evidence of the facts stated in it, was wholly a question for the jury, and if the fact that it was drawn up by the defendants’ attorney had any tendency to induce a belief that it was unfairly obtained or was not a fair and truthful statement, all this was proper matter of argument to the jury as to the amount of evidence the paper furnished. II. The paper offered by the plaintiffs, signed by the wife of Wilcox, one of the plaintiffs, was properly excluded. It was not signed by him, and the evidence was that, when presented to him, he refused to sign it. There was no evidence that he assented to his wife’s putting his name to it, or that he knew it even, hut there was evidence that he did not assent. It does not appear that he assented to the paper being used in any way, for any purpose. How under this evidence it could be claimed that this paper was admissible as an act or admission by, or authority from, Wilcox, seems to us beyond conjecture. This paper has not been shown us, but from the exceptions seems to have been made by Mrs. Wilcox, to enable her to withdraw the eight dollars she had paid into this Union Store, without the consent and against the direction of her husband. III. It is claimed that the charge was not correct upon the evidence in relation to whether Brown and Wilcox, two of the plaintiffs, were really, members of the division or partnership. The general rule of law laid down by the court, that if they were not shown to be members of the division, the action could not be maintained, is not questioned, but it is claimed that the charge should have been specific, that upon the facts proved, and which were not denied by the defendant, those persons were members of the firm or division. To determine this it is necessary to see what was required to make one a member, and what was in fact done. The first constitution provided as to membership as follows: “ Any person of good moral character who shall subscribe this constitution and pay to the treasurer the sum of eight dollars, may become a member of this division, and be entitled to all its privileges and benefits.” The second constitution províúéd for admission of members as follows: “ Any person, with the consent of a majority of the — 704 — members who shall pay to the directors eight dollars and sign this constitution, shall be a member of this division, and shall receive a certificate of membership signed by the president and secretary, and be entitled to equal privileges and benefits.” Each constitution contained a provision allowing members to withdraw at the end of any year by giving previous notice, and each also provided that members should have goods at five per cent, less than they were sold to persons not members. The above provisions are substantially all that is provided as to the manner of becoming members, their privileges while members, and their right of withdrawing from the division. The evidence as to Brown was, that he never signed either constitution, but he paid eight dollars to Lincoln, the agent of the division, and requested him to present his name at the first meeting as an applicant for admission as a member ; that Lincoln presented his name either at a meeting, or to the directors, and was directed to give Brown a certificate of membership, which he did, and that Brown was afterwards allowed to trade as a member. These facts certainly tend very strongly to prove that he became a member of the division. On the other hand, the defendants’ evidence tended to prove that when Brown paid the eight dollars to Lincoln, it was understood between them that Brown was not to become a member of the division, but that he paid the eight dollars upon the consideration that he was to be allowed to have goods at members’ prices. If this was the whole effect of the arrangement it clearly would not constitute him a member, even if Lincoln exceeded his authority or violated his instructions in making it. The plaintiffs’ counsel insists that it is wholly a question of law, whether an existing joint arrangement between two or more persons constitutes a partnership, and does not depend upon the intent or even upon the agreement of the parties, and to a certain extent this is true. If two or more persons join their funds in an enterprize in which they are to share in the profit or loss, the law declares it a partnership, even though the parties have expressly agreed that it shall not be so. But here the question was, not what should be the legal effect of his becoming a member, but whether he ever became a member, and entitled to a — 705 — division of profits. This was a question of fact, to be determined by the jury, and like any other ease, when it is in dispute whether a contract has been made, the intent and understanding of the parties was a material consideration for the jury. None of the facts proved by the plaintiffs were legally conclusive that Brown became a member of the division. They tended to prove that he did ; the defendant’s evidence tended to prove that he did not, and it properly belonged to the jury to decide the question whether he became a member or not. Wilcox signed the first constitution, but it was not claimed that this alone constituted him a member, as he refused to pay the eight dollars. Afterwards his wife paid the eight dollars, and he and his family were then permitted to trade at the same prices as members, and the plaintiff’s evidence tended to prove that he attended the meetings of the company The defendant’s evidence tended to prove that the payment of the eight dollars by Mrs. Wilcox, was against the express direction of her husband, and if this was so, it could not have any legal effect upon him ; his wife could notpnake him a member of the company against his will. The evidence of his attending the meetings, and trading at the store at members’ prices, was evidence tending undoubtedly to prove a subsequent assent and approbation of this payment but not conclusive. It all terminated in a question of fact for the jury, whether he became a member or not. The county court left it to the jury to find whether these persons were members of the firm, and no objection is now made to any part of the charge as detailed, on this part of the case, but they claim the instructions should have been more specific. It does not appear that any specific instruction was asked which was refused, and exceptions were taken merely to that part of the charge stated. The ease stated that the charge, except such as is given, was satisfactory. ‘We are to assume that in reference to the details of the evidence and the proper effect of each part of it, the charge was satisfactory. IV. The court below correctly laid out of the case all that was alleged in the declaration, or proved on the trial, in reference to the defendant’s statements against the character' of Lincoln. The action is brought to recover damages for a slander of the . plaintiffs’ firm, as a mercantile house, for words tending to injure — 706 — their mercantile credit, and character as fair dealers. Whether words imputing dishonesty to their clerk could be actionable in favor of the firm, without charging that it was known or approved by the firm, it is not necessary to decide at this time. The difficulty with the plaintiffs’ case in this respect is, that nothing appeared properly upon the declaration but that Lincoln is a mere stranger to them, wholly unconnected with their affairs or business. If he was so connected with them, or their business, that charges of dishonesty against him would injure the credit or character of their firm, this should have been distinctly set forth by a distinct introductory averment. The statement of the words in the declaration relative to Lincoln, is followed by an innuendo (meaning the plaintiffs’ agent and clerk,) but this is no averment of the fact. The authorities on the subject of declarations in slander, and the respective offices of introductory averments, or colloquiums, and of innuendoes, are all in harmony, but I have found them nowhere stated more concisely and clearly than by Royce, J., in Fitzsimmons v. Cutler, 1 Aik. 33. “There is a material distinction in a declaration of this sort between an inducement, introduction or colloquium, and an innuendo. The office of the former is to set forth the occasion and circumstances of the publication, and to allege all extrinsic facts which are necessary to be taken in connection with the words spoken, in order to complete the sense; while the latter has no other use than simply to ascertain the application of previous expressions to particular persons or things. “ It means no more than the words id est, scilicet, or meaning or aforesaid, as explanatory of a subject matter sufficiently expressed before, as such an one, meaning the defendant, or such a subject, meaning the subject in question. But as an innuendo is only used as a word of explanation, it cannot extend the sense of the words spoken by the defendant beyond their own meaning, unless something is previously put upon the record for it to explain. Hence it is universally agreed that if words spoken are not actionable, with a mere explanation of the persons or things intended by them, they cannot be made so by an innuendo, for an innuendo is only a word of explanation, and never of addition or extension.” — 707 — V. The only other point upon these exceptions reserved, is in reference to the charge of the court to the proof of the speaking the words laid in the declaration. The court charged the jury that it was not necessary for the plaintiffs to prove the very form of expression, the identical words as laid; it was enough if the plaintiffs proved the substance of the alleged slander, if the words as proved, though not the very ones laid in the declaration, conveyed the same idea, the same, and no other meaning. The authorities all agree that a declaration in slander to be good must profess to set forth the very words spoken by the defendant; it is not enough to allege generally that the defendant charged the plaintiff with the commission of a crime, as that he had committed perjury or arson. This was decided in this State in Hazelton v. Wears, 8 Vt. 480. So in a plea of justification in slander the defendant must justify speaking the same words set out in the declaration ; this was held in this State in the case of Skinner v. Grant, 12 Vt. 456. From these well established doctrines as to declaring and pleading in these actions, it would seem on principle necessary, when the plaintiff is called upon to support his declaration by proof, that he should prove the words precisely as alleged. This was the ancient rule in the English courts; 2 Selwyn’s N. P. 1267, and cases cited in notes. But from the great difficulty in actions for verbal slander in proving the words precisely as alleged, some relaxation in the rule on this subject has been allowed. Mr. Selwyn says on the page above quoted that it is now “ sufficient to prove the substance of the words.” It is clear, however, from what follows that Mr. Selwyn does not mean that it is sufficient to sustain the charge by other language having the same meaning, but that the substance of the same words must be proved. Mr. Chitty states the rule as follows : “ The plaintiff need not prove all the words laid, if they do not constitute one entire charge, and the non-proof would not alter its meaning; though he must prove such of them as will be sufficient to sustain his action, and it will not suffice to prove equivalent expressions.” In the American notes to Selwyn above cited it is laid down “ that though all the words alleged need not be proved, it is necessary — 708 — some of those which are actionable should be proved as laid;” citing Foster v. Small, 3 Whart. 138 ; Cumings v. Butler, 3 Blackf. 190; Wheeler v. Robb, Ib. 330 ; Whiting v. Smith, 13 Pick. 364. In another note on the same page, it is said, “ but though the words proved are equivalent to those laid in the declaration, yet if they are not the same in substance, judgment will be arrested,” and cites Olmstead v. Miller, 1 Wend. 506 ; McAlmont v. McClelland, 14 S. & R. 359. In Hazelton v. Weare, above cited, Royce, J., says, “It is a rule laid down in all the books that in an action for slander the words constituting the slanderous charge must be set forth. And to avoid inconvenience from the strictness of this rule, some slight relaxation is permitted in the evidence. This need not correspond in every minute particular with the words as laid, provided the identity of the charge is substantially made out.” In Smith v. Miles 15 Vt. 245, Redeield, J., says, “ The jury must find the speaking of the words as alleged, i. e. so many of the same words as go to constitute the sting of the charge.” All these authorities seem to amount to the same thing, though expressed differently somewhat. All agree that it is not necessary to prove all the words laid, unless those not proved vary the sense and meaning of the others which are proved so as to make the charge proved a different one from that alleged. We think the true rule to be gathered from them all is that the substance of the alleged charge must be proved in substantially the same words laid in the declaration. That any mere variation in the form of expression merely would not be material, but that the words alleged cannot be proved by showing that the defendant expressed the same meaning but in different words. The language of the charge would admit of a more liberal and extended application than this, but probably was intended to be substantially as we now hold. If not, however, the plaintiffs cannot complain, as the error was in their favor. We need take no time to examine the particular application of the rule by the county court to all the different statements of the defendant proved. It is sufficient to say that in our judgment it was quite as liberal to the plaintiffs, as the rules of law would justify. The judgment of the county court is affirmed.