Ivey v. Pioneer Savings & Loan Co. , 113 Ala. 349 ( 1896 )

HEAD, J.

The letter alleged as libellous was a private business letter written by the defendant’s attorney, in Minneapolis, Minn., to his client’s agent, Mr. Stone, at Talladega, Ala., relative to a note and mortgage made by one Jacobs, and the expenses incurred, presumably, in reference thereto, including the charges of the plaintiff for completing or “bringing down” an abstract of titles. It appears satisfactorily from the letter, that Mr. Stone had attended to the business, in Talla-dega, for the defendant, and had forwarded to the latter the note and mortgage, together with bills of expenses incurred, viz., $25 for his own services, $2.50 for recording, and $5, plaintiff’s charge for bringing down the abstract. The defendant objected to this latter charge as being excessive, and wrote the letter to Mr. Stone, set out in the complaint, which will be reproduced by the reporter.

The plaintiff complains, first, that the letter charges him with petit larceny ; second, with the criminal offense of obtaining money by false pretenses; third, that it charges him with dishonesty, fraud and other moral turpitude ; and fourth, that the matter published caused him special damages in his business.

As we said in Iron Age Publishing Company v. Crudup, 85 Ala. 519, the “definitions of libel, as found in the cases, vary somewhat in phraseology, and are more or less comprehensive, as may be called for by the particular charge involved in the case. Generally, any false- and malicious publication, when expressed in printing or writing, or by signs or pictures, is a libel, which charges an offense punishable by indictment, or which tends to bring an individual into public hatred, contempt or ridicule, or charges an act odious and disgraceful in society. This general definition may be said to include whatever tends to injure the character of an individual, or imputes fraud, dishonesty or other moral turpitude, or reflects shame, or tends to put him without the pale of social intercourse. * * * * In construing the publication complained of, the scope and meaning of the whole must be considered, and interpreted as others would naturally understand it.”

It is plain the letter does not impute to Mr. Ivey the commission of a criminal offense. Larceny was not legally predicable of the act complained of, and the statement that the act was “petit larceny” was a misuse of terms, shown and obviated by the communication itself. The same is manifestly true in respect of the statutory offense of obtaining money by false pretenses. The letter does not contain the semblance of a charge that Ivey had falsely represented that he had rendered a service. Indeed, it shows that his representation was that he had entered three conveyances on the abstract, and the letter admits that he had done so, and complains only of the amount charged for the same.

The question of importance is whether the letter charged Ivey with having knowingly and corruptly demanded largely more for the service than it was reasonably worth ; and if so, whether such a charge is actionable per se. The language pertinent to the question, after showing that the work done by Ivey was to enter three conveyances on the abstract, is as follows : ‘ ‘In other States the charge would be 75 cents, and such a charge as Mr. Ivey makes ($5) is simply petit larceny. If you cannot get Mr. Ivey to do work for reasonable figures do not have him do it at all. A charge of $1.00 is ample to cover the amount of labor, and we are certain there is no law authorizing any such charge as he has made. If you have paid this bill we want you to collect $4 from Mr. Ivey for overcharge, and do notask him to do another cent’s worth of work for us again in any connection. Get along without it, in some way, or pay somebody else to do it, unless he makes the matter right. $5 for three entries on an abstract is about the biggest charge we ever heard of. * * * You must make Mr. Ivey do the square thing in this matter.” We are of the opinion that the plain, natural import of this language is that Mr. Ivey, knowingly and corruptly, preferred against the defendant, and undertook to collect, a charge for services rendered, greatly in excess of the reasonable and fair value of the service. The highly excessive charge’ is repeated with emphasis, and all further relations with Ivey, in any connection, emphatically forbidden, unless he makes the matter right. The act is given the character of petit larceny, which carries with it the imputation that it was wickedly done ; and this thought is accentuated by the injunction that Ivey must be made to do the “square” thing in the matter. The term “square” was here used in the sense of the following definitions given by lexicographers: “Rendering equal justice; exact; fair; honest.” See Webster. Taken with the context, which denounced the act as grossly unreasonable, and possessing characteristics of larceny, the term “square” was used in this letter in the sense of “honest,” and the command was that Ivey must be coerced to do the honest thing, which implies, in the connection used, that he had been dishonest.

Hence, the libellous character vel non of the publication may be tested by assuming that it, in terms, declared, that the plaintiff had, knowingly and corruptly, made and attempted to collect, against the defendant, a charge for services rendered, greatly in excess of their fair value, for the purpose of liis own aggrandizement, and in moral fraud of the rights of the defendant. We think it requires no argument or authority to show that such a publication is libellous per se and actionable.

The third count claims only special damages to plaintiff in his business of abstractor. The allegations are not sufficient to justify such a recovery. The letter was a private business communication of a confidential nature addressed by a principal to his agent. The only publication of the letter charged was its delivery through the post to the person addressed, who read it. It is not to be assumed that it was read by any other person. There is no allegation of any relations, existent or prospective, between plaintiff and Stone which the letter interrupted, but the allegation is general, that “plaintiff has been greatly damaged in his said business of abstractor.” The fact that defendant declined to have further business relations with plaintiff was, of course, independent of the letter complained of, and not to be considered as as a damage to the plaintiff. The defendant had the right so to decline with or without cause ; and, indeed, it is no part of the alleged libel. We think the count is not sufficiently specific to show wherein plaintiff suffered special damage in Ms business of abstractor, and for that reason the demurrer to it was properly sustained.

It is probable tlie 4th and 5th counts will not hereafter be insisted upon.

It is neccessary that the complaint ayer that the words alleged were falsely and maliciously published, but the allegation of want of probable cause is not required. The first original count was, therefore, good. The second required amendment so as to allege the false and malicious character of the publication. The demurrers to the original first count, and to the same as amended, and to the second count as amended, ought to have been overruled.

Reversed and remanded.