Chapter VIII: Interference with Advantageous Relations (3)

Lord Penzance said: “The learned counsel for the underwriters contended that they, by virtue of the policy which they entered into in respect of this ship, had an interest of their own in her welfare and protection, inasmuch as any injury or loss sustained by her would indirectly fall upon them as a consequence of their contract, and that this interest was such as would support an action by them in their own names and behalf against a wrong-doer. This proposition virtually affirms a principle which I think your Lordships will do well to consider with some care, as it will be found to have a much wider application and signification than any which may be involved in the incidents of a contract of insurance. The principle involved seems to me to be this,—that where damage is done by a wrong-doer to a chattel, not only the owner of the chattel, but all those who by contract with the owner have bound themselves to obligations which are rendered more onerous, or have secured to themselves advantages which are rendered less beneficial by the damage done to the chattel, have a right of action against the wrong-doer, although they have no immediate or reversionary property in the chattel, and no possessory right by reason of any contract attaching to the chattel itself, such as by lien or hypothecation. This, I say, is the principle involved in the respondent’s contention. If it be a sound one, it would seem to follow that if by the negligence of a wrong-doer goods are destroyed, which the owner of them had bound himself by contract to supply to a third person, this person, as well as the owner, has a right of action for any loss inflicted upon him by their destruction. But if this be true as to injuries done to chattels, it would seem to be equally so as to injuries to the person. An individual injured by a negligently driven carriage has an action against the owner of it. Would a doctor, it may be asked, who had contracted to attend him and provide medicines for a fixed sum by the year, also have a right of action in respect of the additional cost of the attendance and medicine cast upon him by the accident? And yet it cannot be denied that the doctor had an interest in his patients safety. In like manner an actor or singer, bound for a term to a manager of a theatre, is disabled by the wrongful act of a third person to the serious loss of the manager; can the manager recover damages for that loss from the wrong-doer? Such instances might be indefinitely multiplied, giving rise to rights of action which in modern communities, where every complexity of mutual relations is daily created by contract, might be both numerous and novel.” See, also, the cases of Randal _v._ Cockran, 1 Ves. Sen. 97; North of England Insurance Association _v._ Armstrong, Law Rep. 5 Q. B. 244; Stewart _v._ Greenock Marine Insurance Co., 2 H. L. C. 159; Davidson _v._ Case, 8 Price, 542; Mason _v._ Sainsbury, 3 Douglas, 61; Yates _v._ Whyte, 4 Bing. N. C. 272.

This action cannot therefore in my judgment be maintained, nor is there any substantial injustice in such a result, because, as it seems to me, the insurance company are in this dilemma; the loss and damage caused by the wrongful act of the wife either is or is not a loss which the company have agreed to indemnify the husband against; now, if it is such a loss, an attempt by the company to enforce against the husband a return indemnity or reimbursement is at variance with the very substance of their undertaking to indemnify him; if, on the other hand, the loss, by reason of its having arisen from the act of the wife, is not within the risks and losses covered by the policy, then this action is as wholly misconceived, unnecessary, and unfounded, as if the loss had been caused by any other risk not covered by the policy. The truth is that the real and substantial contention on the part of the insurance company is, that the loss in question having been caused by the wilful act of the wife of the assured, although acting without the privity of her husband, is not a loss covered or insured against by the policy. That question might be raised in the action brought by the assured against the company upon the policy, but it does not arise, and indeed could not be raised, so as to receive a binding and judicial determination, in such an action as the present. As however the question has been fully and ably argued before me, and as the parties have expressed a desire to elicit an opinion upon the point, I have no hesitation in saying that it appears to me to be upon principle perfectly clear and free from doubt that such a loss would be covered by an ordinary policy against loss caused by fire; under such a policy the company would be liable for every loss caused by fire, unless the fire itself were caused and procured by the wilful act of the assured himself or some one acting with his privity and consent. In order to escape from responsibility for such a loss as the present the company ought to introduce into their policy an express exception.

_Judgment for the defendants._

KLOUS _v._ HENNESSEY
SUPREME COURT, RHODE ISLAND, JUNE 14, 1881.
_Reported in 13 Rhode Island Reports, 332._

DURFEE, C. J.[550] This is an action on the case for conspiracy. The declaration charges in effect that the defendants and one Patrick Kenney, said Kenney being then a debtor of the plaintiffs, conspired together to prevent the plaintiffs and the other creditors of said Kenney from getting payment of their claims out of his property, and that, in pursuance of the conspiracy, Kenney made fictitious mortgages of his real and personal property to the defendants, under cover of which the defendants removed the personal property out of the possession of Kenney, and secreted it so that the plaintiffs were prevented from attaching it, and thus lost their claims. At the trial, after the plaintiffs had introduced their testimony in proof of the declaration, the court, on motion of the defendants, it having appeared that the plaintiffs were merely creditors at large of Kenney, without any interest in his property or lien upon it by attachment, levy, or otherwise, ruled that the action, in respect of the charges aforesaid, was not maintainable. The plaintiffs excepted to the ruling for error, and now petition for a new trial.

There is some conflict of authority on the question thus raised, but the more numerous and, we think, the better-reasoned and stronger cases are against the action. The principal ground of decision in these cases is that the damage, which is the gist of the action, is too remote, uncertain, and contingent, inasmuch as the creditor has, not an assured right, but simply a _chance_ of securing his claim by attachment or levy, which he may or may not succeed in improving.[551] It is impossible to find any measure of damages for the loss of such a mere chance or possibility. Another ground, added in some of the cases, is that no action would lie in favor of such a creditor against the debtor for putting his property beyond the reach of legal process, if the debtor were to do it by himself alone, and that what would not be actionable if done by himself alone cannot be actionable any the more when done by him with the assistance of others. The first of these grounds, which is the fundamental one and has been chiefly relied on, has been so exhaustively analyzed and discussed in the cases that it is impossible for us to add anything to the reasons adduced in support of it; and therefore, without reproducing them, we deem it sufficient simply to cite the cases themselves, all of which are accessible and can be readily consulted. Lamb _v._ Stone, 11 Pick. 527; Wellington _v._ Small, 3 Cush. 145; Moody _v._ Burton, 27 Me. 427, 431; Adler _v._ Fenton, 24 How. U. S. 407; Austin _v._ Barrows, 41 Conn. 287, 296; Kimball _v._ Harman & Burch, 34 Md. 407, 410; Bradley _v._ Fuller, 118 Mass. 239. See also Bump on Fraudulent Conveyances, 505, 506; Cooley on Torts, 124, 586.

_Petition dismissed._[552]

HUTCHINS _v._ HUTCHINS
SUPREME COURT, NEW YORK, JANUARY, 1845.
_Reported in 7 Hill, 104._

_By the Court_, NELSON, C. J.[553] The case is substantially this:—The father of the plaintiff devised to him, in due form of law, a farm consisting of one hundred and fifty-one acres of land. The defendant, being aware of the fact, and intending to deprive the plaintiff of the benefit and advantage of the devise, and of his expected estate and interest in the farm, falsely and maliciously represented to the father, that, after his decease, the plaintiff intended to set up a large demand against the estate, which would absorb the greater part of it, and thus deprive the other children of their just share; at the same time defaming and calumniating the character of the plaintiff in several particulars. By these fraudulent means the defendant prevailed upon the father to revoke and cancel the will, and to make and execute a new one, by which the plaintiff was excluded from all participation in his father’s estate.

This is the substance of the case, in its strongest aspect, as presented by the pleadings; and the question arises whether any actual damage, in contemplation of law, is shown to have been sustained by the plaintiff?

Fraud without damage, or damage without fraud, gives no cause of action; but where both concur, an action lies. Damage, in the sense of the law, may arise out of injuries to the person or to the property of the party; as any wrongful invasion of either is a violation of his legal rights, which it is the object of the law to protect. Thus, for injuries to his health, liberty and reputation, or to his rights of property, personal or real, the law has furnished the appropriate remedies. The former are violations of the absolute rights of the person, from which damage results as a legal consequence. As to the latter, the party aggrieved must not only establish that the alleged tort or trespass has been committed, but must aver and prove his right or interest in the property or thing affected, before he can be deemed to have sustained damages for which an action will lie.

Now, testing the plaintiff’s declaration by these principles, has he made out a case from which it can be said that damage has resulted to him? I think not. In respect to the farm devised to him by the first will, he fails to show that he had any such interest in it as the law will recognize. The only foundation of his claim rests upon the mere unexecuted intention of his father to make a gift of the property; and this cannot be said to have conferred a right of any kind. To hold otherwise, and sanction the doctrine contended for by the plaintiff, would be next to saying that every voluntary courtesy was matter of legal obligation; that private thoughts and intentions, concerning benevolent or charitable distributions of property, might be seized upon as the foundation of a right which the law would deal with and protect.

I have not overlooked the cases referred to on the argument, of actions of slander, where special damage must be shown in order to make the words actionable; and where the deprivation of any present substantial advantage, even though gratuitous, such as the loss of customers, of a permanent home at a friend’s, or advancement in life, and such like, if the immediate and direct consequence of the words, will sustain the action. 1 Starkie on Slander, 158 to 186, Ed. of 1843. If this description of special damage is to be regarded as the gist and foundation of the action, I rather think the principle should be regarded as peculiar to that species of injury. I am not aware of any class of remedies given for a violation of the rights of property, where so remote and contingent a damage has been allowed as a substantial ground of action.

But the law applicable to the cases referred to proceeds upon the ground that the plaintiff, by the wrongful act complained of, has been deprived of the present, actual enjoyment of some pecuniary advantage. No such damage can be pretended here. At best, the contemplated gift was not to be realized till after the death of the testator, which might not happen until after the death of the plaintiff; or the testator might change his mind, or lose his property.

In short, the plaintiff had no interest in the property of which he says he has been deprived by the fraudulent interference of the defendant, beyond a mere naked possibility; an interest which might indeed influence his hopes and expectations, but which is altogether too shadowy and evanescent to be dealt with by courts of law.

I am of opinion that the defendant is entitled to judgment.

_Ordered accordingly._[554]

LEWIS _v._ CORBIN
SUPREME JUDICIAL COURT, MASSACHUSETTS, MAY 15, 1907.
_Reported in 195 Massachusetts Reports, 520._

Action of tort. Demurrer to declaration.

KNOWLTON, C. J.[555] This is an action of tort in which the defendant is charged with having deprived the plaintiff of a legacy, through his fraud in inducing a testatrix to execute the codicil by which the legacy purported to be given with only one witness, whereby the codicil was rendered invalid. The legatee named in the codicil was the plaintiff’s father, who had deceased before the codicil was made, although neither the testatrix nor the defendant then knew of his death.

One question is whether this legacy, which would be void at common law (see Maybank _v._ Brooks, 1 Brown Ch. 76; Dildine _v._ Dildine, 32 N. J. Eq. 78, 80; Moss _v._ Helsley, 60 Tex. 426, 436), is within the R. L. chap. 135, sec. 21, which provides that when a devise or legacy is made to a child or other relation of the testator who dies before the testator, leaving issue surviving the testator, such issue shall take the gift unless the will requires a different disposition of it.

* * * * *

We are of opinion that the purpose of the Legislature is best accomplished by holding the statute applicable to devises and legacies given to relations who died before the making of the will, as well as legacies and devises to those who died after the making of the will.

* * * * *

The defendant contends that the plaintiff’s declaration fails to aver damage suffered by him on account of the defendant’s misconduct. It is true, as he argues, that in order to create a liability of this kind, there must be, not only a wrong inflicted by the defendant, but damage to the plaintiff resulting directly therefrom. Lamb _v._ Stone, 11 Pick. 527, 534, 535; Wellington _v._ Small, 3 Cush. 145, 149; Bradley _v._ Fuller, 118 Mass. 239, 241. See also Jenks _v._ Hoag, 179 Mass. 583, 585; Freeman _v._ Venner, 120 Mass. 424, 426, 427; Adler _v._ Fenton, 24 How. 408, 410.

In this case the averments are, in substance, that the defendant was the executor and residuary legatee named in a will of one Jane V. Corbin, and that she formed a purpose to give a legacy of $5000 to Henry G. Lewis, the plaintiff’s father, who was her second cousin, that she was over eighty years of age, and, for advice and assistance in matters of business, was dependent upon the defendant, who occupied a confidential relation towards her, that, wrongfully and fraudulently intending and contriving to defeat her will and intention, and to deprive and defraud Henry G. Lewis and his heirs of the sum of $5000, he advised and procured the testatrix to execute a codicil to her will in the presence of only one witness, namely, the defendant, whereas the law of Rhode Island required the execution of the codicil in the presence of more than one witness, as the defendant well knew. It is then averred that the estate of the testatrix was large, and that, if the codicil had not failed for want of due attestation owing to the fraud practised by the defendant, the plaintiff would have received about $1650.

Whether a person named as legatee has a remedy, in a case like this, is a question which, so far as we know, has never been decided in this Commonwealth. See Melanefy _v._ Morrison, 152 Mass. 473, 476. The testatrix, desiring to give the legacy and intending to express her desire in a way that would be effectual after her death, unless in the meantime she should change her purpose, was fraudulently induced to express it ineffectually, when she supposed that she had made a legal and valid codicil. Plainly such fraudulent conduct was a wrong upon the plaintiff as well as upon the testatrix. The question in the case is whether the plaintiff has averred sufficient facts to show that damage resulted to him directly as a consequence of the wrong. The defendant relies strongly upon Hutchins _v._ Hutchins, 7 Hill, 104, decided by the Supreme Court of New York. The declaration in that case charged that the plaintiff’s father had made a will devising a farm to the plaintiff, and that the defendants, who were interested in the testator’s estate, he being a feeble man, advanced in years, and incapable of transacting business, fraudulently induced him to make another will in which the devise to the plaintiff was omitted. The case was heard on a demurrer. The court said “Fraud without damage, or damage without fraud gives no cause of action; but where both concur, an action lies.... The only foundation of his claim rests upon the mere unexecuted intention of his father to make a gift of the property, and this cannot be said to have conferred a right of any kind. To hold otherwise and sanction the doctrine contended for by the plaintiff would be next to saying that every voluntary courtesy was matter of legal obligation, and that private thoughts and intentions concerning benevolent or charitable distributions of property might be seized upon as the foundation of a right which the law would deal with and protect.... But the law applicable to the cases referred to proceeds upon the ground that the plaintiff, by the wrongful act complained of, has been deprived of the present actual enjoyment of some pecuniary advantage. No such damage can be pretended here. At best the contemplated gift was not to be received until after the death of the plaintiff, or the testator might change his mind, or lose his property.” This case has been cited with approval in this Commonwealth and elsewhere. Randall _v._ Hazelton, 12 Allen, 412, 416; Emmons _v._ Alvord, 177 Mass. 466, 471; Adler _v._ Fenton, 24 How. 408, 410. We have been referred to no other decision upon similar facts, and we have found no other. It seems pretty plain that, if a suit were brought in the lifetime of the testator, immediately after the practice of the fraud, no substantial damage could be recovered. Very likely the court was right in deciding that no action could be maintained. The plaintiff’s relation to the subject to which the fraud was directed was not close enough to cause him pecuniary loss, apart from the happening of subsequent events. Even if there were no fraud the legacy might never take effect. The testator might lose his property, or destroy his will, or make a different one. But the fraud put the plaintiff in a less advantageous position than he otherwise would have occupied in reference to the probability of receiving property under the will, and this change of position, accomplished by a fraud, naturally and probably might deprive him of that which, with fair dealing, he would receive. It seems to us that, while the fraud does not cause substantial damage apart from the happening of subsequent events which reasonably may be expected to happen, if these do happen, the defendant is chargeable with the natural consequences of his act. Suppose, in the present case, that the testatrix did not change her purpose to give the legacy of $5000 to Henry G. Lewis, and that for the rest of her life she desired and intended that this legacy should take effect, and thought that it would take effect. The fraud then would be operative up to the time of her death, and would accomplish the result intended by its author, by depriving the legatee of that which otherwise he would have received. It is averred that the testatrix left an estate sufficient to pay all or nearly all of this legacy, with the others. If the facts supposed above are proved, does it not follow that the fraud directly and proximately caused the plaintiff’s loss of his legacy? The defendant cannot complain that these supposed facts followed as conditions concurring with his fraud to cause the damage. His fraud was planned in reference to the probability that these events would follow. In Hutchins _v._ Hutchins, _supra_, there was no averment to show that the fraud was operative up to the time when the title to the property was changed by the death of the testator. The court treated the case as if the testator might have changed his purpose as to the disposition of his estate, for reasons of his own independently of the fraud.

While the declaration in the present case declares a result which might justify an inference that the loss was caused by the fraud alone, the averment seems hardly more than a statement of a conclusion of law from the facts given previously. Upon demurrer we think the pleading is defective in not averring facts which exclude the possibility that the testatrix changed her purpose in regard to this legacy, and which show that the fraud continued operative to the time of her death, and thus caused the loss to the plaintiff.

We think the charge of fraud is a sufficient statement of an actionable wrong. It charges much more than an expression of opinion by which the testatrix was misled. The defendant is accused of having dealt with a matter of fact, and with having fraudulently procured the making of the codicil without sufficient attestation of it.

We infer from the record that the testatrix was domiciled in Massachusetts, and that the construction of the will is governed by the law of this State. Welch _v._ Adams, 152 Mass. 74, 79; Sewall _v._ Wilmer, 132 Mass. 131, 136.

_Demurrer sustained._[556]

DULIN _v._ BAILEY
SUPREME COURT, NORTH CAROLINA, NOVEMBER 29, 1916.
_Reported in 172 North Carolina Reports, 608._

CLARK, C. J. The complaint alleges that after the death of W. A. Bailey the defendants conspired to deprive the plaintiff and others of the benefits of his last will by removing from the paper writing to which the sheet of paper containing the alleged signature of the deceased was attached, that part providing for the legacy to the plaintiff and others and substituting other provisions therefor. The plaintiff contends that thereby a previous will has been admitted to probate. In the course of the proceeding the plaintiff asked for the appointment of a commissioner to take the examination of the defendants in the nature of a bill of discovery. The defendants demurred that the complaint did not state a cause of action. The court sustained the demurrer, and held that unless the will that had been proven in common form was attacked and set aside by caveat, the plaintiff could not maintain the cause of action set out in the complaint. This put an end to the plaintiff’s further progress in the cause, and she took a nonsuit and appealed.

The plaintiff is not seeking to attack the will on record, nor to probate what she alleges was a subsequent will. She is not seeking to recover anything out of the estate, but is bringing an action of tort against the parties who, as she alleges, conspired and injured her by removing the clause of, and the signature to, what was a subsequent will by which she would have received a legacy. It is an action of spoliation by which she alleges the defendants have prevented her receiving the sum of money which was due her if they had not fraudulently altered and defaced the subsequent will. She alleges that she does not attempt to set up the second will because the evidence accessible to her would not prove its entire contents. She prefers, therefore, to bring this action against the defendants for their wrong-doing in fraudulently destroying the part of the will which was beneficial to herself.

Though this action seems to be of the first impression in this state, and is doubtless a very unusual one, there is foundation and reason for the action upon well-settled principles of law, and we are not entirely without precedent. In Tucker _v._ Phipps, 3 Atkins, 359; cited in Barnesly _v._ Powell, 1 Ves. Sr. 284, it was held that, the spoliation being clearly proven, the plaintiff could maintain his action without setting up the will by a probate. It was held that:

“Where a will is destroyed or concealed, while the general rule is to probate the alleged will by proof in the Ecclesiastical Court [which was there the court for probate wills], yet the legatee might bring his action for the damage sustained by spoliation and suppression.”

In that case the spoliation was alleged to have been a destruction or concealment of the will by the executor. Such action against a stranger is even more appropriate than an independent action against the executor. Tucker _v._ Phipps is to be found in 26 English Reports (Reprinted) 1008. Another case very much in point is Barnesley _v._ Powell, 1 Ves. 119, 27 English Reports (Reprinted) 1034, in which Tucker _v._ Phipps is cited as authority and the court also refers with approval to

“A late case where the defendant burned a will, in which was a legacy to the plaintiff, so that it could not be proven in the Ecclesiastical Court [which cannot prove a will on loose parts of the contents of it], yet on the evidence of there being such a will, and the defendants destroying it, the court decreed the legacy to the plaintiff, as the defendant by his own iniquity had prevented the plaintiff from coming at it.”

There may be other precedents, but the instances must have been rare. Even if there had been no precedent, it would seem that, upon the principle of justice that there is “no wrong without a remedy,” the plaintiff is entitled to maintain this action, if, as she alleges, the defendants conspired and destroyed the subsequent will in which the legacy was left her. If she cannot prove the destroyed will because unable to prove the entire contents thereof (_In re_ Hedgepeth, 150 N. C. 245, 63 S. E. 1025), surely she is entitled to recover of the defendants for the wrong they have done her by the conspiracy and destruction of the will, and the measure of her damages will be the legacy of which she has been deprived. It may be very difficult for her to prove her allegations by legal evidence and satisfactory to a jury, but with that we have nothing to do. The only question presented to us is the ruling of the court below that the complaint does not state a cause of action, and in this we think the court below was mistaken.

As the action is not to set up the will, nor against the estate, but against the defendants individually for their tort, the action could be brought in the county where the plaintiff resides.

Reversed.

RATCLIFFE _v._ EVANS
IN THE COURT OF APPEAL, MAY 26, 1892.
_Reported in [1892] 2 Queen’s Bench, 524._

Motion to enter judgment for the defendant, or for a new trial, by way
of appeal from the judgment entered by Mr. Commissioner Bompas, Q. C.,
in an action tried with a jury at the Chester Summer Assizes, 1891.

The statement of claim in the action alleged that the plaintiff had
for many years carried on the business, at Hawarden in the county of
Flint, of an engineer and boiler-maker under the name of “Ratcliffe &
Sons,” having become entitled to the good-will of the business upon
the death of his father, who, with others, had formerly carried on the
business as “Ratcliffe & Sons;” that the defendant was the registered
proprietor, publisher, and printer of a weekly newspaper called the
“County Herald,” circulated in Flintshire and some of the adjoining
counties, and that the plaintiff had suffered damage by the defendant
falsely and maliciously publishing and printing of the plaintiff in
relation to his business, in the “County Herald,” certain words set
forth which imported that the plaintiff had ceased to carry on his
business of engineer and boiler-maker, and that the firm of Ratcliffe
& Sons did not then exist.

At the trial the learned commissioner allowed the statement of claim
to be amended by adding that “by reason of the premises the plaintiff
was injured in his credit and reputation, and in his said business of
an engineer and boiler-maker, and he thereby lost profits which he
otherwise would have made in his said business.” The plaintiff proved
the publication of the statements complained of, and that they were
untrue. He also proved a general loss of business since the
publication; but he gave no specific evidence of the loss of any
particular customers or orders by reason of such publication. In
answer to questions left to them by the commissioner, the jury found
that the words did not reflect upon the plaintiff’s character, and
were not libellous; that the statement that the firm of Ratcliffe &
Sons was extinct was not published _bona fide_; and that the
plaintiff’s business suffered injury to the extent of £120 from the
publication of that statement. The commissioner, upon those findings,
gave judgment for the plaintiff, for £120, with costs. The defendant
appealed.[557]

The following judgment of the court (LORD ESHER, M. R., BOWEN, and
FRY, L.JJ.), was read by

BOWEN, L. J. This was a case in which an action for a false and
malicious publication about the trade and manufactures of the
plaintiff was tried at the Chester assizes, with the result of a
verdict for the plaintiff for £120. Judgment having been entered for
the plaintiff for that sum and costs, the defendant appealed to this
court for a new trial, or to enter a verdict for the defendant, on the
ground, amongst others, that no special damage, such as was necessary
to support the action, was proved at the trial. The injurious
statement complained of was a publication in the “County Herald,” a
Welsh newspaper. It was treated in the pleadings as a defamatory
statement or libel; but this suggestion was negatived, and the verdict
of the jury proceeded upon the view that the writing was a false
statement purposely made about the manufactures of the plaintiff,
which was intended to, and did in fact, cause him damage. The only
proof at the trial of such damage consisted, however, of evidence of
general loss of business without specific proof of the loss of any
particular customers or orders, and the question we have to determine
is, whether in such an action such general evidence of damage was
admissible and sufficient. That an action will lie for written or oral
falsehoods, not actionable _per se_ nor even defamatory, where they
are maliciously published, where they are calculated in the ordinary
course of things to produce, and where they do produce, actual damage,
is established law. Such an action is not one of libel or of slander,
but an action on the case for damage wilfully and intentionally done
without just occasion or excuse, analogous to an action for slander of
title. To support it actual damage must be shown, for it is an action
which only lies in respect of such damage as has actually occurred. It
was contended before us that in such an action it is not enough to
allege and prove general loss of business arising from the
publication, since such general loss is general and not special
damage, and special damage, as often has been said, is the gist of
such an action on the case. Lest we should be led astray in such a
matter by mere words, it is desirable to recollect that the term
“special damage,” which is found for centuries in the books, is not
always used with reference to similar subject-matter, nor in the same
context. At times (both in the law of tort and of contract) it is
employed to denote that damage arising out of the special
circumstances of the case which, if properly pleaded, may be
superadded to the general damage which the law implies in every breach
of contract and every infringement of an absolute right: see Ashby
_v._ White, 2 Ld. Raym. 938; 1 Sm. L. C. 9th ed. p. 268, _per_ Holt,
C. J. In all such cases the law presumes that _some_ damage will flow
in the ordinary course of things from the mere invasion of the
plaintiff’s rights, and calls it general damage. Special damage in
such a context means the particular damage (beyond the general
damage), which results from the particular circumstances of the case,
and of the plaintiff’s claim to be compensated, for which he ought to
give warning in his pleadings in order that there may be no surprise
at the trial. But where no actual and positive right (apart from the
damage done) has been disturbed, it is the damage done that is the
wrong; and the expression “special damage,” when used of this damage,
denotes the actual and temporal loss which has, in fact, occurred.
Such damage is called variously in old authorities, “express loss,”
“particular damage:” Cane _v._ Golding, Sty. 169; “damage in fact,”
“special or particular cause of loss:” Law _v._ Harwood, Cro. Car.
140; Tasburgh _v._ Day, Cro. Jac. 484.

The term “special damage” has also been used in actions on the case
brought for a public nuisance, such as the obstruction of a river or a
highway, to denote that actual and particular loss which the plaintiff
must allege and prove that he has sustained beyond what is sustained
by the general public, if his action is to be supported, such
particular loss being, as is obvious, the cause of action: see Iveson
_v._ Moore, 1 Ld. Raym. 486; Rose _v._ Groves, 5 M. & G. 613. In this
judgment we shall endeavor to avoid a term which, intelligible enough
in particular contexts, tends, when successively employed in more than
one context and with regard to different subject-matter, to encourage
confusion in thought. The question to be decided does not depend on
words, but is one of substance. In an action like the present, brought
for a malicious falsehood intentionally published in a newspaper about
the plaintiff’s business—a falsehood which is not actionable as a
personal libel and which is not defamatory in itself—is evidence to
show that a general loss of business has been the direct and natural
result admissible in evidence, and, if uncontradicted, sufficient to
maintain the action? In the case of a personal libel, such general
loss of custom may unquestionably be alleged and proved. Every libel
is of itself a wrong in regard of which the law, as we have seen,
implies general damage. By the very fact that he has committed such a
wrong, the defendant is prepared for the proof that some general
damage may have been done. As is said by Gould, J., in Iveson _v._
Moore, 1 Ld. Raym. 486, in actions against a wrong-doer a more general
mode of declaring is allowed. If, indeed, over and above this general
damage, further particular damage is under the circumstances to be
relied on by the plaintiff, such particular damage must of course be
alleged and shown. But a loss of general custom, flowing directly and
in the ordinary course of things from a libel, may be alleged and
proved generally. “It is not special damage”—says Pollock, C. B., in
Harrison _v._ Pearce, 32 L. T. (O. S.) 298,—“it is general damage
resulting from the kind of injury the plaintiff has sustained.” So in
Bluck _v._ Lovering, 1 Times L. R. 497, under a general allegation of
loss of credit in business, general evidence was received of a decline
of business presumably due to the publication of the libel, while loss
of particular customers, not having been pleaded, was held rightly to
have been rejected at the trial: see also Ingram _v._ Lawson, 6 Bing.
N. C. 212. Akin to, though distinguishable in a respect which will be
mentioned from, actions of libel are those actions which are brought
for oral slander, where such slander consists of words actionable in
themselves and the mere use of which constitutes the infringement of
the plaintiff’s right. The very speaking of such words, apart from all
damage, constitutes a wrong and gives rise to a cause of action. The
law in such a case, as in the case of libel, presumes, and in theory
allows, proof of general damage. But slander, even if actionable in
itself, is regarded as differing from libel in a point which renders
proof of general damage in slander cases difficult to be made good. A
person who publishes defamatory matter on paper or in print puts in
circulation that which is more permanent and more easily transmissible
than oral slander. Verbal defamatory statements may, indeed, be
intended to be repeated, or may be uttered under such circumstances
that their repetition follows in the ordinary course of things from
their original utterance. Except in such cases, the law does not allow
the plaintiff to recover damages which flow, not from the original
slander, but from its unauthorized repetition: Ward _v._ Weeks, 7
Bing. 211; Holwood _v._ Hopkins, Cro. Eliz. 787; Dixon _v._ Smith, 5
H. & N. 450. General loss of custom cannot properly be proved in
respect of a slander of this kind when it has been uttered under such
circumstances that its repetition does not flow directly and naturally
from the circumstances under which the slander itself was uttered. The
doctrine that in slanders actionable _per se_ general damage may be
alleged and proved with generality must be taken, therefore, with the
qualification that the words complained of must have been spoken under
circumstances which might in the ordinary course of things have
directly produced the general damage that has in fact occurred. Evans
_v._ Harries, 1 H. & N. 251, was a slander uttered in such a manner.
It consisted of words reflecting on an innkeeper in the conduct of his
business spoken openly in the presence of divers persons, guests and
customers of the inn—a floating and transitory class. The court held
that general evidence of the decline of business was rightly
receivable. “How,” asked Martin, B., “is a public-house keeper, whose
only customers are persons passing by, to show a damage resulting from
the slander, unless he is allowed to give general evidence of a loss
of custom?” Macloughlin _v._ Welsh, 10 Ir. L. Rep. 19, was an instance
of excommunication in open church. General proof was held to be
rightly admitted that the plaintiff was shunned and his mill
abandoned, though no loss of particular customers was shown. Here the
very nature of the slander rendered it necessary that such general
proof should be allowed. The defamatory words were spoken openly and
publicly, and were intended to have the exact effect which was
produced. Unless such general evidence was admissible, the injury done
could not be proved at all. If, in addition to this general loss, the
loss of particular customers was to be relied on, such particular
losses would, in accordance with the ordinary rules of pleading, have
been required to be mentioned in the statement of claim: see Ashley
_v._ Harrison, 1 Esp. 50. From libels and slanders actionable _per
se_, we pass to the case of slanders not actionable _per se_, where
actual damage done is the very gist of the action. Many old
authorities may be cited for the proposition that in such a case the
actual loss must be proved specially and with certainty: Law _v._
Harwood, Cro. Car. 140. Many such instances are collected in the
judgments in Iveson _v._ Moore, 1 Ld. Raym. 486, where, although there
was a difference as to whether the general rule had been fulfilled in
that particular kind of action on the case, no doubt was thrown on the
principle itself. As was there said—in that language of old pleaders
which has seen its day, but which connoted more accuracy of legal
thought than is produced by modern statements of claim—“damages in the
‘_per quod_,’ where the ‘_per quod_’ is the gist of the action, should
be shown certainly and specially.” But such a doctrine as this was
always subject to the qualification of good sense and of justice.
Cases may here, as before, occur where a general loss of custom is the
natural and direct result of the slander, and where it is not possible
to specify particular instances of the loss. Hartley _v._ Herring, 8
T. R. 130, is probably a case of the kind, although it does not appear
from the report under what circumstances, or in the presence of whom,
the slanderous words were uttered. But if the words are uttered to an
individual, and repetition is not intended except to a limited extent,
general loss of custom cannot be ordinarily a direct and natural
result of the limited slander: Dixon _v._ Smith, 5 H. & N. 450;
Hopwood _v._ Thorn, 19 L. J. (C. P.) 95. The broad doctrine is stated
in Buller’s Nisi Prius, p. 7, that where words are not actionable, and
the special damage is the gist of the action, saying generally that
several persons left the plaintiff’s house is not laying the special
damage. Slanders of title, written or oral, and actions such as the
present, brought for damage done by falsehoods, written or oral, about
a man’s goods or business, are similar in many respects to the
last-mentioned class of slanders not actionable in themselves. Damage
is the gist of both actions alike, and it makes no difference in this
respect whether the falsehood is oral or in writing: Malachy _v._
Soper. The necessity of alleging and proving actual temporal loss with
certainty and precision in all cases of the sort has been insisted
upon for centuries: Lowe _v._ Harewood, W. Jones, 196; Cane _v._
Golding, Sty. 176; Tasburgh _v._ Day, Cro. Jac. 484; Evans _v._
Harlow, 5 Q. B. 624. But it is an ancient and established rule of
pleading that the question of generality of pleading must depend on
the general subject-matter: Janson _v._ Stuart, 1 T. R. 754; Lord
Arlington _v._ Merricke, 2 Saund. 412, n. 4; Grey _v._ Friar, 15 Q. B.
907; see Co. Litt. 303 d; Westwood _v._ Cowne, 1 Stark. 172; Iveson
_v._ Moore, 1 Ld. Raym. 486. In all actions accordingly on the case
where the damage actually done is the gist of the action, the
character of the acts themselves which produce the damage, and the
circumstances under which these acts are done, must regulate the
degree of certainty and particularity with which the damage done ought
to be stated and proved. As much certainty and particularity must be
insisted on, both in pleading and proof of damage, as is reasonable,
having regard to the circumstances and to the nature of the acts
themselves by which the damage is done. To insist upon less would be
to relax old and intelligible principles. To insist upon more would be
the vainest pedantry. The rule to be laid down with regard to
malicious falsehoods affecting property or trade is only an instance
of the doctrines of good sense applicable to all that branch of
actions on the case to which the class under discussion belongs. The
nature and circumstances of the publication of the falsehood may
accordingly require the admission of evidence of general loss of
business as the natural and direct result produced, and perhaps
intended to be produced. An instructive illustration, and one by which
the present appeal is really covered, is furnished by the case of
Hargrave _v._ Le Breton, 4 Burr. 2422, decided a century and a half
ago. It was an example of slander of title at an auction. The
allegation in the declaration was that divers persons who would have
purchased at the auction left the place; but no particular persons
were named. The objection that they were not specially mentioned was,
as the report tells us, “easily” answered. The answer given was that
in the nature of the transaction it was impossible to specify names;
that the injury complained of was in effect that the bidding at the
auction had been prevented and stopped, and that everybody had gone
away. It had, therefore, become impossible to tell with certainty who
would have been bidders or purchasers if the auction had not been
rendered abortive. This case shows, what sound judgment itself
dictates, that in an action for falsehood producing damage to a man’s
trade, which in its very nature is intended or reasonably likely to
produce, and which in the ordinary course of things does produce, a
general loss of business, as distinct from the loss of this or that
known customer, evidence of such general decline of business is
admissible. In Hargrave _v._ Le Breton it was a falsehood openly
promulgated at an auction. In the case before us to-day, it is a
falsehood openly disseminated through the press—probably read, and
possibly acted on, by persons of whom the plaintiff never heard. To
refuse with reference to such a subject-matter to admit such general
evidence would be to misunderstand and warp the meaning of old
expressions; to depart from, and not to follow, old rules; and, in
addition to all this, would involve an absolute denial of justice and
of redress for the very mischief which was intended to be committed.
It may be added that, so far as the decision in Riding _v._ Smith can
be justified, it must be justified on the ground that the court
(rightly or wrongly) believed the circumstances under which the
falsehood was uttered to have brought it within the scope of a similar
principle. In our opinion, therefore, there has been no misdirection
and no improper admission of evidence, and this appeal should be
dismissed with costs.

_Appeal dismissed._[558]

DUDLEY _v._ BRIGGS
SUPREME JUDICIAL COURT, MASSACHUSETTS, MAY 8, 1886.
_Reported in 141 Massachusetts Reports, 582._

Tort. Writ dated Sept. 18, 1885. The declaration was as follows:

“And the plaintiff says that he is, and has been for many years, a compiler and publisher of directories of cities, towns, and counties in this Commonwealth and elsewhere; that by care, attention, skill, and faithfulness, and after great labor and expense, he had acquired a large number of subscribers among business men and other people, throughout the cities and towns of Bristol County, and elsewhere in this Commonwealth, for ‘The Bristol County Directory,’ which the plaintiff has compiled and published biennially for many years, and until the acts and doings of the defendant hereinafter complained of; that, at great labor and expense, he had acquired a large and valuable list of advertisers in his said directory, from whom, as well as from the said subscribers to said directory, he obtained a large income, and would have continued to do so, but for the acts and doings of the defendant hereinafter alleged and set forth.

“And the plaintiff says that, according to his usual and ordinary custom in the compilation and publication of the said ‘The Bristol County Directory,’ he would have compiled and published the same in this year, A. D. 1885, and he made his preparations therefor, but he says that the defendant and his canvassers, and other servants and agents, in order to injure the plaintiff, and to deprive him of the opportunity of compiling and publishing said directory for said year of 1885, and thereafterwards, and receiving the gains and profits therefrom, and to secure the same to the defendant, together with all the gains and profits arising therefrom, and otherwise to injure the plaintiff and get gain, profit, and advantage to the defendant, knowingly and wilfully, falsely and fraudulently, pretended and represented to many persons, and particularly to the plaintiff’s patrons, the advertisers in said directory and the subscribers thereto throughout said Bristol County, that the plaintiff had gone out of the business of compiling and publishing said directory, that the plaintiff had sold out said business to the defendant, that the said canvassers and the defendant’s other servants and agents were compiling the materials for the plaintiff’s directory, the same as formerly, and other false and fraudulent representations then and there made, of which the plaintiff is not yet fully informed, and thereby deceitfully and wrongfully induced the plaintiff’s said patrons, advertisers, and subscribers, in and throughout said Bristol County, to give to the defendant their advertisements and subscriptions, and to pay him instead of the plaintiff therefor.

“Whereas, in truth and in fact, the said representations were wholly false and untrue; the plaintiff had neither gone out of the business of compiling and publishing the said directory, as he had done for years before, nor had he sold out to the defendant, nor had he any intention of doing so; nor were the defendant and his canvassers, and other agents and servants, compiling the said directory the same as formerly or for the plaintiff; all of which the defendant, as well as his said canvassers and other servants and agents, well knew. And the defendant did knowingly, wrongfully, injuriously, and deceitfully compile and publish the said ‘The Bristol County Directory,’ for the year A. D. 1885, and vend and sell the same to the plaintiff’s patrons, advertisers, subscribers, and other persons, as aforesaid. And the plaintiff says that thereby he has been prevented from compiling, publishing, and selling his said directory this year, A. D. 1885, as he has always done heretofore; that he has lost the great gains and profits which he would otherwise have made and received from the sale thereof, and from advertisers in and subscribers to said directory, and has been put to great loss and expense in preparing for said compilation and publication, till he learned of the defendant’s said act and doings, and thereby he will be hereafter prevented from compiling and publishing said directory except at an increased expense and with diminished profits.”

The defendant demurred to the declaration, on the ground that it did not set forth a legal cause of action.

The Superior Court sustained the demurrer; and ordered judgment for the defendant. The plaintiff appealed to this court.

FIELD, J. The plaintiff in his declaration does not allege that, by the acts of the defendant, he has been deprived of the benefit of any contract he had made, or of any property in existence and in his possession, or that the defendant published his directory for 1885 as a directory prepared and published by the plaintiff; and does not bring his case within such decisions as Lumley _v._ Gye, Marsh _v._ Billings, 7 Cush. 322; Thomson _v._ Winchester, 19 Pick. 214; Blofeld _v._ Payne, 4 B. & A. 410; Morison _v._ Salmon, 2 M. & G. 385; and Sykes _v._ Sykes, 3 B. & C. 541.

He does not allege that he had any copyright in the previous publications which the publication of the defendant infringed; and the courts of the Commonwealth have no jurisdiction over infringements of copyright. If each publication of a directory by the plaintiff every two years was a separate publication, then the plaintiff’s declaration amounts to this,—that he intended to publish a directory for 1885, whereby he expected to make profits, but, by reason of the acts of the defendant, he abandoned such an intention, and lost the profits he otherwise would have made. But an intention in the mind of the plaintiff to compile and publish a directory is not property, and the abandonment of such an intention is not a loss of property. Bradley _v._ Fuller, 118 Mass. 239.