89. Under this head will be considered the disparagement of title or quality of lands and goods.

Though the term "slander of title" is well established, it is largely a mere figure of speech. It directs attention. to the fact that there is here an assault, not upon the reputation of the individual, but upon the extent or value of a property right. But it is nevertheless misleading. In the first place, the action is not one of defamation, but is in the nature of trespass on the case for the special damages sustained. Second, it is not essential that there be oral defamation. "The fact that the publication is written. or printed, and not oral, makes no difference in the ground of the action, and goes only to the question of dissemination, and consequent damage." 3 Third, the wrong, it is true, may consist of an assault upon plaintiff's title, but it is not limited thereto. There may be a disparagement of quality, as if it should be asserted that a horse was aged,"

1 See Kendall v. Stone, 5 N. Y. 14, 18.

2 Wilson v. Dubois, 35 Minn. 471, 29 N. W. 68, 59 Am. Rep. 335; Meyrose v. Adams, 12 Mo. App. 329; Hatchard v. Mége, 56 L. J. Q. B. 397; Malachy v. Soper, 3 Bing. N. C. 371, 2 Hodges, 217, 6 L. J. C. P. 32, 3 Scott, 725, 32 E. C. L. 176.

3 Meyrose v. Adams, 12 Mo. App. 329, 332, per Bakewell, J. Cf. Chesebro v. Powers, 78 Mich. 472, 44 N. W. 290.

4 Hill v. Ward, 13 Ala. 310; Chesebro v. Powers, 78 Mich. 472, 44 N. W. 290; Long v. Rucker, 166 Mo. App. 572, 149 S. W. 1051; Dodge V. Colby, 108 N. Y. 445, 15 N. E. 703.

Wilson v. Dubois, 35 Minn. 471, 29 N. W. 68, 59 Am. Rep. 335.

that the ore of a mine would suddenly run out, or that a dinner furnished by a caterer on a public occasion was "wretched," and was served “in such a way that even hungry barbarians might justly object," that "the cigars were simply vile, and the wines not much better." It should be noted, however, that although assertions of inferiority are no doubt disparaging, yet a certain leeway must be allowed to trade rivalry. Hence it is not actionable merely to assert that one's goods are better than those of a competitor. Were it otherwise, as Lord Chancellor Herschell remarked, "the courts of law would be turned into a machinery for advertising rival productions by obtaining a judicial determination which of the two was the better." But competition will not excuse the charge of a positive defect."

ELEMENTS

90. Publication, is, of course, essential. In addition, plaintiff must aver and establish (a) the falsity of the charge; (b) the sustaining of a special damage, proximately resulting; and (c) under certain circumstances, malice.10

• Paull v. Halferty, 63 Pa. 46, 3 Am. Rep. 518.

7 DOOLING v. BUDGET PUB. CO., 144 Mass. 258, 10 N. E. 809, 59 Am. Rep. 83, Chapin Cas. Torts, 235. For further illustrations, see Kennedy v. Press Pub. Co., 41 Hun (N. Y.) 422; Cleveland Leader Printing Co. v. Nethersole, 84 Ohio St. 11S, 95 N. E. 735, Ann. Cas. 1912B, 978; Lyne v. Nichols, 23 T. L. R. 86.

8 White v. Mellin, [1895] App. Cas. 154, 165.

9 "Thus, if A. simply says, 'My soothing syrup is better than B.'s,' this statement is not actionable, although it is not true, and A. knew it was not. But, suppose A. says, 'My syrup is better than B.'s syrup, because there is opium in B.'s syrup.' If there is in fact no opium in B.'s syrup, and damage follows upon this statement, then A. is at least prima facie liable." "Disparagement of Property," by Jeremiah Smith, 13 Columbia Law Rev. 133.

10 Burkett v. Griffith, 90 Cal. 532, 537, 27 Pac. 527, 13 L. R. A. 707, 25 Am. St. Rep. 151; Meyrose v. Adams, 12 Mo. App. 329, 332; Cardon v. McConnell, 120 N. C. 461, 27 S. E. 109; Le Massena v. Storm, 62 App. Div. 150, 154, 70 N. Y. Supp. 882; Like v. McKinstry, 41 Barb. (N. Y.) 186, 190; Potosi Zinc Co. v. Mahoney (1913) 36 Nev. 390, 135

(a) Falsity

Plaintiff has the burden of proving the falsity of the charge, in which respect this action differs from personal defamation, where falsity is presumed, and where the burden of establishing truth rests upon a justifying defendant.11

(b) Damage Proximately Resulting

Special damage must also be "distinctly and precisely set out in the declaration and established by the proof." 12 Hence mere general allegations of loss of custom or sales. will not be enough.13 There should be averment and proof of a loss of sale to some particular person.14 Recovery has been denied where defendants' act has caused the third party to break a contract made with plaintiff. If the lat- ter has consented to the breach and canceled the agreement, he has himself brought about the loss.15 If he has

Pac. 1078. "If some portions of the statement which a person makes are bona fide, but others are mala fide, and occasion injury to another, the injured party cannot recover damages, unless he can distinctly trace the damage as resulting from that part which is made mala fide." Brook v. Rawl, 4 Exch. 521, 524, per Parke, B.

11 Fant v. Sullivan (Tex. Civ. App. 1912) 152 S. W. 515; Burnett v. Tak, 45 L. T. 743. And see Pater v. Baker, 3 C. B. 831, 869; Steward V. Young, L. R. 5 C. P. 122, 127.

12 Swan v. Tappan, 5 Cush. (Mass.) 104, 109. To the same effect, Ebersole v. Fields (1913) 181 Ala. 421, 62 South. 73; Stark v. Chitwood, 5 Kan. 141; Cleveland Leader Printing Co. v. Nethersole, 84 Ohio St. 118, 95 N. E. 735, Ann. Cas. 1912B, 978; McGuinness v. Hargiss, 56 Wash. 162, 105 Pac. 233, 21 Ann. Cas. 220; Malachy v. Soper, 32 E. C. L. 176.

13 Marlin Firearms Co. v. Shields, 171 N. Y. 384, 64 N. E. 163, 59 L. R. A. 310; Tobias v. Harland, 4 Wend. (N. Y.) 537.

14 "The rule is not technical, but substantial. It imposes no hardship upon the plaintiff. If there is a person to whom a sale could have been made in the absence of the disparagement, he can be named, so as to inform defendant of the particular charge of damage which he is required to meet. If there is no such person, there is no cause of action." Wilson v. Dubois, 35 Minn. 471, 473, 29 N. W. 68, 59 Am. Rep. 335, per Berry, J. To the same effect, Stevenson v. Love (C. C.) 106 Fed. 466; Tasburgh v. Day, Cro. Jac. 484; Manning v. Avery, 3 Keb. 153.

15 Kendall v. Stone, 5 N. Y. 14.

not consented, then he has a perfect remedy against the third party.16 But it would seem illogical to deny recovery in the latter case. If A.'s wrongful act is the foreseeable consequence, and therefore the proximate result, of the wrongful act of B., surely the injured party should not be refused redress against the latter. Why should B. be permitted to escape liability merely because there happens to exist a cause of action against another?

(c) Malice

Though malice is usually said to be an essential ingredient, yet as a learned author 17 has pointed out, where there has been disparagement of title, a distinction must be drawn between actions against strangers and against rival _claimants. If by "malice" is meant "malice in fact," it really forms no part of plaintiff's case when defendant is a stranger. Here the conclusion that a wrongful act, done without just cause or excuse, was prompted by an improper motive, i. e., "malice in law," may well be drawn. Though defendant may in fact have acted honestly, he has none the less caused loss to an innocent party, which the latter should not be compelled to bear. On the other hand, if the defendant is a rival claimant, he occupies a position somewhat analogous to that of one charged with defamation uttered on an occasion conditionally privileged. Here bad motive should not be presumed merely because he has made an unfounded claim. "Malice in fact" should be established. Not only has one the right to assert what he believes to be his title, but it may even be his duty to do so, where a sale is in contemplation, in order that innocent purchasers may not be misled; and though a sale be thereby prevented, his assertion will give rise to no cause of action, unless it is "bottomed on fraud." 18 Plaintiff

16 Burkett v. Griffith, 90 Cal. 532, 27 Pac. 527, 13 L. R. A. 707, 25 Am. St. Rep. 151; Felt v. Germania Life Ins. Co., 149 App. Div. 14, 133 N. Y. Supp. 519; Cohen v. Minzesheimer (Sup.) 118 N. Y. Supp. 385. Cf. Walkley v. Bostwick, 49 Mich. 374, 13 N. W. 780.

17 Jeremiah Smith, "Disparagement of Property," 13 Columbia Law Rev. 13, 19.

18 Cardon v. McConnell, 120 N. C. 461, 463, 27 S. E. 109. To the

is not unduly burdened when he is required to prove that defendant could not honestly have believed in the existence of the right claimed. Even where there appears no reasonable or probable cause for the belief, still, as the latter may have acted from mere stupidity, the jury are not bound to find malice, though they are at liberty to do so.1o Where quality is disparaged, there would seem no reason why defendant's bad faith must be shown by plaintiff. The position of a rival trader is not analogous to that of a claimant. If the latter remain silent, he may jeopardize his title; but the possible increase of a trader's sales, which may be brought about by spreading reports of the quality of a rival's goods, scarcely constitutes an interest worthy of protection.20 A fortiori, should a mere stranger be forced to make good the damage he has caused, irrespective of the motive which prompted him.

same effect, Hill v. Ward, 13 Ala. 310; Duncan v. Griswold, 92 Ky. 546, 18 S. W. 354; Harriss v. Sneeden, 101 N. C. 273, 7 S. E. 801; Smith v. Spooner, 3 Taunt. 246. Cf. Hovey v. Rubber Tip Pencil Co., 57 N. Y. 119, 15 Am. Rep. 470.

19 Harrison v. Howe, 109 Mich. 476, 67 N. W. 527; Butts v. Long, 106 Mo. App. 313, 80 S. W. 312; Hopkins v. Drowne, 21 R. I. 20, 41 Atl. 567; Pitt v. Donovan, 1 M. & S. 639. Cf. Gent v. Lynch, 23 Md. 58, 87 Am. Dec. 558, note.

20 Cf. Western Counties Manure Co. v. Lawes Chemical Manure Co., L. R. 9 Exch. 218.