Opinion
April Term, 1903.
John S. Sheppard, Jr., for the appellant.
George E. Miner, for the respondent.
This is an appeal from an interlocutory judgment overruling a demurrer to the complaint. The action is for a libel alleged to be contained in a letter written by the defendant to one of its correspondents, and inclosing a copy of a letter which the defendant wrote to the plaintiff who seems to have carried on business, not in his individual name, but under the name of the "Willis Park Row Bicycle Company," of New York. In the letter first above referred to the plaintiff is charged with "cutting prices," on the "Morrow Coaster Brake," which seems to be a bicycle appliance. The letter complained of by the plaintiff states that by the action of Mr. Willis he not only injured the defendant's business, but the trade and those jobbers who have maintained the contract price. The plaintiff contends that it is charged in the letter that he cut the contract price of this article, being bound to maintain that price, and it is alleged that that accusation is false, and by way of innuendo in the complaint it is charged that the defendant meant and intended to lead the party to whom the letter was addressed and other business acquaintances of the plaintiff, to believe that the plaintiff had violated and repudiated his contracts and obligations, and was an unsafe and unreliable business man engaged in injuring and ruining the business of the defendant and also of all jobbers throughout the country, and, therefore, not of good repute, etc., among business men.
It is evident from a reading of the letter complained of that the innuendo expands the meaning of what is charged in that letter far beyond any reasonable intendment that can be drawn from it. There is nothing whatever in the letter to charge that the plaintiff was bound by any contract not to cut prices, or that connected him with any contract to maintain prices. He is not even charged with the violation of a contract; nor is there anything in the letter from which it can be inferred that he was bound by any contract, or that the writer of the letter intended so to represent.
We are, therefore, not able to perceive that anything contained in this letter is libelous per se, for there is nothing in it which would necessarily injure the plaintiff in his business or disparage him as a business man. Inasmuch as the matter is not libelous per se, the complaint is defective in that it does not allege special damage; and for this reason we think the judgment of the court below was wrong and that the demurrer should have been allowed.
The interlocutory judgment must, therefore, be reversed, with costs, and the demurrer sustained, with costs, with leave to the plaintiff to amend his complaint within twenty days on payment of costs in this court and in the court below.
VAN BRUNT, P.J., O'BRIEN, INGRAHAM and HATCH, JJ., concurred.
Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend complaint within twenty days on payment of costs in this court and in the court below.