has mortgaged other property to the extent of $10,000; and that he is heavily indebted to banks, upon which indebtedness he is paying a high rate of interest mentioned. If this has no significance further than a personal one, it is not libellous per se. If, however, it can be said to apply to the business of the plaintiff, it may be. The declaration, by way of inducement, states that plaintiff was in the habit of purchasing goods, with which to maintain his stock, of certain firms, naming them; that defendant, with the intention and for the purpose of injuring his credit with, and preventing his purchase of goods from, said firms upon credit, made certain statements concerning his indebtedness, and incumbrances upon his property, and the transfer of property to his wife upon an ostensible consideration of one-half its value. The innuendo charges defendant with meaning that plaintiff was fraudulently disposing of his property, was in failing circumstances, and unworthy of credit.

Counsel for defendant assert that this language is not libellous per se, and it is possible that, standing alone, it might not be, as in that case it might have to be construed as written concerning the person merely; and there is nothing in the act of conveying property to a wife, with or without consideration, or in securing creditors, or borrowing money at a lawful rate of interest, that can be said to be reprehensible or disgraceful, or that necessarily tends to beget ridicule or contempt in the sense essential to a libel. But the declaration charges this publication in connection with other facts, which, if true, authorize the conclusion that it was made in connection with the business of the plaintiff. It has been held that it is not actionable to say of traders that they had executed a chattel mortgage. Newbold v. Bradstreet, 57 Md. 38. But those familiar with mercantile affairs, or the litigation which they beget, understand that the filing of mortgages, conveyance of property to relatives, and large lines of credit at banks invariably provoke distrust and caution, and usually cause a loss of credit, and legal proceedings to collect accounts. So well understood is this that we feel justified in holding that a false statement of the kind set up in this declaration would necessarily cause a loss of credit, and therefore would be actionable per se when applied to one alleged to be a trader, in the habit of purchasing upon credit. A case very similar to this will be found in Newell v. How, 31 Minn. 235, 17 N. W. 383, where the defendant reported of the plaintiff, to his correspondent as follows, viz.:

"His assets, consisting of merchandise, show cases, tools, book accounts, as per his own guess, is about $1,800. His indebtedness is, as far as I know, about the same amount. He may know more. I speak of what I know. $1,300 is to merchants like you, and $500 a demand note. If any one of his creditors should crowd him, the demand would be pushed. We would advise caution on your part in selling, and a prompt payment of indebtedness."

This was held libellous per se, within the rule that those callings in which, ordinarily, credit is essential to their successful prosecution,

language which imputes to one in any such calling a want of credit or responsibility is actionable per se. Read v. Hudson, 1 Ld. Raym. 610; Davis v. Lewis, 7 Term R. 17; Dobson v. Thornistone, 3 Mod. 112; Chapman v. Lamphire, id. 155; Sewall v. Catlin, 3 Wend. 291; Ostrom v. Calkins, 5 Wend. 263; Mott v. Comstock, 7 Cow. 654; Lewis v. Hawley, 2 Day, 495; Whittington v. Gladwin, 5 Barn. & C. 180; Southam v. Allen, T. Raym. 231; Phillips v. Hoefer, 1 Pa. St. 62. But this is not the end of the question in this case. Plaintiff ascribed a certain meaning to the words used, - beyond their ordinary import, - which he sets forth in the innuendo, i. e., substantially a design to defeat or defraud his creditors by conveying property to his wife, etc., and that he was unworthy of credit, and in failing circumstances. The words used are not in themselves ambiguous, and, unless they are to be taken in some other than their ordinary sense, they cannot legitimately be construed to express the meaning alleged in the innuendo. To ascertain this, we must examine the facts alleged in the declaration, and see if these words, read in the light of such facts, are susceptible of the construction claimed. These circumstances have been detailed as describing plaintiff's business and the fact of his dealing upon credit with the persons to whom the information was sent, to injure which, and to cause the repute and credit of plaintiff and his said business to be injured and degraded, the writing was published. The declaration also alleges that it had the intended effect. We can understand how words may be used and understood in a different, and even opposite, sense from what they naturally and ordinarily import, as where used ironically, or in the nature of slang, or as a quotation having a wellunderstood significance, or where they are used in cipher; but in all such cases it is necessary that the declaration should allege facts which, if proved, will enable a Court to say that these words, interpreted in the light of them, may reasonably be held to bear the construction claimed, leaving to the jury the truth or falsity of the allegation upon which the alleged meaning depends, as well as the question of the meaning. It is not enough for the pleader to allege that the language meant a certain thing. The innuendo cannot enlarge the language complained of, except as it is supported by the inducement. It must be the circumstances surrounding the case, not the intention of the defendant, that modifies the language. A declaration that complained that a defendant had said of the plaintiff (a woman) that she was chaste, followed by innuendo to the effect that he thereby meant that she was unchaste, would not warrant a Court in leaving it to the jury to say what was meant. But if, by way of inducement, it was alleged that the parties were enemies, and that in a conversation in which the defendant was speaking in a derogatory manner of the plaintiff (giving his statements) he had said in an ironical manner and tone that she was chaste, following it with the innuendo, it would be competent for the Court to leave the question to the jury whether the language used would not be so

meant and understood, — i. e., whether that would not be the common and ordinary understanding of the language when used in that way, and under such circumstances. The innuendo would not, in such case, enlarge the words, or alter the sense in which they were used, except by reference to the inducement which would support it, and which would be susceptible of proof and contradiction by evidence. An issue can never be raised upon the truth of an innuendo. Fry v. Bennett, 5 Sandf. 54; Com. v. Snelling, 15 Pick. 335; Taylor v. Kneeland, 1 Doug. (Mich.) 67.

So we return to the question, do the words, read in the light of the alleged circumstances under which they were published, sustain the innuendo? For the purpose of this discussion we must assume the statements of the writing to be true as to the literal meaning of the words, i. e., that the plaintiff did make the conveyance, and was indebted and mortgaged, as therein stated. These things being true, can it be said that the sense or meaning of the statement is changed into a charge of fraud by the facts that the plaintiff was a merchant, who was in the habit of dealing upon credit with the persons to whom the writings were sent; that the defendant intended to injure his credit with such persons, and that it had that effect? To be consistent with what has been said of the effect of the acts alleged in the writing upon the mind of the average creditor, we must concede that the inference from such acts would probably be that the debtor was to a greater or less extent embarrassed, and perhaps that he was placing his property in the hands of his wife with fraudulent design, though the latter, at least, is not a necessary inference. There is nothing better settled in this State than the proposition that the truth of the publication is a complete defence to the action of libel. Here, then, the defendant has simply told the truth without comment of any kind. Shall we say that, because of the inferences which naturally follow, the meaning of the language should be extended to include the inferences? If so, it logically follows that the truth of the publication is not a complete defence in cases where inferences naturally follow the statement of certain facts. Would the character of the publication depend upon the expectation by plaintiff that the inference would be drawn? And would the failure of the person addressed to draw the inference relieve the plaintiff from liability? We get into deep water when we depart from the rule that actions for slander and libel do not lie upon inferences (Townsh. Sland. & L. § 133), though we must recognize a distinction between inferences which are the natural result of implications contained in the language of the publication - which may, in a sense, render it ambiguous, and justify a construction at variance with the strict meaning of the words as ordinarily used — and inferences drawn only from the facts themselves. In the former case the action may lie, not because of the inference, but by reason of the implication; in the latter it will not. Applying this rule to the case before us,

we feel constrained to say that these words are not susceptible to the construction alleged in the innuendo.

From what has been said, the third count should be excepted. In that count the charge consisted of the real-estate transfer, followed by the words, "In time of peace, prepare for war." The statement of the paper was true as to the transfer. If the writing was libellous, it must be by reason of the use of the words, "In time of peace, prepare for war." The natural meaning of this will depend largely on the circumstances under which the words were written, and unless we can say that they do not contain an intimation that the plaintiff was in failing circumstances, or unworthy of credit, it was proper to leave this question to the jury. Ewing v. Ainger, 96 Mich. 587, 55 N. W. 996. It is patent that the marking and sending of the real-estate transfer to plaintiff's creditor may have been, and probably was, intended to apprise such creditor of the fact that his debtor had conveyed the property. The advice, in connection with it, may reasonably be thought to imply that the creditor better look after his interests in that direction while it was yet a time when he might secure them; that delay in that particular case might be dangerous. If the jury so found, the words were actionable per se. If they could not so find, they were not actionable, being fully justified by the proof of the truth of the conveyance. From what has been said, it is-plain that the jury might have been directed that some of the counts did not contain language that could be construed in accordance with the innuendo. Such instruction was not asked, except as the request applied equally to the other count. Error might have been assigned upon the language of the charge upon this subject, inasmuch as the Court expressed a different view to the jury from that contained herein, rendering it possible that they found defendant guilty upon all of the counts. But we find no assignment of error upon this language, nor is the point made in the brief of counsel that it was error. Inasmuch as there is one count which will sustain the verdict, we cannot reverse the cause upon the ground that the jury was allowed to find a verdict upon a declaration containing two bad ones.

165. LEE v. CRUMP

SUPREME COURT OF ALABAMA. 1906

146 Ala. 655, 40 So. 609

APPEAL from City Court of Gadsden; John H. Disque, Judge. Action by J. D. Crump against Fitzhugh Lee. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The complaint contains three counts. In the first count, the libellous words imputed are, "You stole my cabbage," viz., on about the 15th day of December. The libellous words in the second count are, “Id Crump stole my cabbage" (same date as above). In the third count

the words were alleged in substance at follows: "I did say you stole my cabbage, and you are the only man I ever knew to steal a wagon load of cabbage" (same date). The plea was the general issue. The plaintiff requested the Court in writing to give the following charges, which the Court gave:

Charge 1: The Court charges the jury that there is no evidence in this case that Crump stole the cabbage.' Charge 2: "The Court charges the jury that if they find from the evidence that the words used as charged in the complaint were used by the defendant in the presence of others as charged in the complaint, and, further, that the defendant intended by the use of these words to impute to the plaintiff the charge of larceny, then, if the jury further find that these words were used for slander, and also that they were used by defendant because he was mad at the plaintiff and had ill will against him, then the words were used maliciously."

The defendant requested the general affirmative charge, which the Court refused to give. There was verdict and judgment for plaintiff, and his damages were assessed in the sum of $300.

W. H. Denson, for appellant.

Goodhue & Blackwood, for appellee.

WEAKLEY, C. J. The complaint contains three counts, each alleging that the defendant falsely and maliciously charged the plaintiff with larceny, by speaking of and concerning him the words set forth. The words in substance are that the defendant stole the plaintiff's cabbage, or, as expressed in the third count, that the defendant stole a wagon load of cabbage." The case was tried upon the plea of the general issue, the only plea filed, and the plaintiff obtained a verdict and judgment. The appellant, who was the defendant in the Court below, first insists that error was committed in refusing his request for the affirmative charge; and this contention rests upon three grounds, which we will consider in the order in which they have been argued.

The words used by the defendant, in their ordinary signification and standing alone, imputed to the plaintiff the infamous crime of larceny, and hence were, if false and malicious, actionable without proof of special damage. No doubt the defendant, upon settled principles of law, would have been allowed to show, if he had offered to make such proof, that the words were spoken in reference to the severing by the plaintiff from the soil of growing cabbage and his taking them away by one continuous act, thereby imputing a trespass merely, notwithstanding the use of the more offensive word "steal," and that this application of the words was known or communicated to his hearers at the time. Norton v. Ladd, 5 N. H. 203, 20 Am. Dec. 573; Dunnell v. Fiske, 11 Metc. (Mass.) 559; Parmer v. Anderson, 33 Ala. 78; Williams v. Cawley, 18 Ala. 206; 18 Am. & Eng. Ency. Law (2d ed.), 888. But there is an entire absence of any proof that the hearers of the words either knew or were informed that the defendant had reference to a mere trespass, instead of to a felony. It will not avail the defendant