Hartnett v. Goddard , 176 Mass. 326 ( 1900 )

Lathrop, J.

This case in some respects resembles Weston v. Barnicoat, 175' Mass. 454, and in other respects differs from it. Th,e machinery of the association, which the defendant, who was a member thereof, set in motion, did not contemplate an absolute boycott, as in Weston v. Barnicoat, but merely that a person who did not pay his debts could not buy of members of the association, except by paying cash before delivery. The bill of exceptions states that when the question arose between the parties, which formed the basis of the defendant’s acts, the plaintiff was owing the defendant #500 and over. As we understand the somewhat lengthy declaration, in several counts, the plaintiff complains that what was done amounted to a false, scandalous, and malicious libel.

The answer was a general denial, with an allegation that the alleged libellous matter was true, and was written without malice, and also that it was a privileged communication.

The exceptions state that there was conflicting testimony on the point as to whether the plaintiff’s loss of business was or was' not ascribable to the defendant’s acts. The jury found for the defendant, under instructions to which no exceptions were taken; and the only exceptions are to matters of evidence.

Under the Pub. Sts. c. 167, § 80, the truth of the libellous matter may be given in evidence, and forms a complete justification, unless malice is shown. Whether the statement was true, and whether there was malice, were issues proper to be submitted to the jury. The questions first objected to relate to the purpose of the defendant in forming and carrying on the association, and we see no objection to their admission. As is said in Weston v. Barnicoat, ubi supra, the jury might have found that “ the whole organization was a mere scheme ... to enforce colorable claims of the members by a boycott intended to take the place of legal process, and that there was no pretence of any duty about the matter,” or they might have found, as is said by the court in the same case, that “ the purpose of the association and publication was and was understood to be merely to give information to members concerning the credit of people with whom they might deal.”

The last question put to the defendant by his counsel was properly allowed, in the discretion of the presiding judge, as the plaintiff who called him as a witness had opened the matter of what his intention was.

The remaining exception relates to the admission of the testimony of one Dupee, the secretary of the association. He was called as a witness for the plaintiff, and identified several circulars and letters referred to in the plaintiff’s declaration, as well as others relating to the process of dealing with the plaintiff through that association. The defendant was then permitted to examine him upon the practice of the association in regard to arbitration in case of differences, though no evidence had been put in on either side, that either of the parties had requested or submitted to arbitration in regard to such differences. We do not think that the last fact stated is of any importance. The defendant was on trial for starting the machinery of an association, which might be a very unjust association, or which might be a very fair one, intended not to collect debts not due, but merely honest debts. The machinery of the association was called in question, and we do not see that the plaintiff has any ground of exception to the subject matter of the inquiry.

It also seems to us that the extent of the cross-examination was within the discretion of the presiding judge. Jones v. Smith, 121 Mass. 15. Commonwealth v. Nash, 135 Mass. 541. Barrett v. Murphy, 140 Mass. 133, 143, 144. Exceptions overruled.