the imputation of dishonesty in connection with the plaintiff's business, that he was wanting in honor and integrity, and that those who should deal with him would suffer loss.1 Similarly, it was held actionable for a milk dealer to write to a shipper, advising him to "look out" for the plaintiff, a rival dealer, “unless you have surety for your goods, as he does not pay any of his shippers anything."2 It is also actionable to impeach the credit of traders by imputing bankruptcy or even financial embarrassment. For example, in Florida a merchant recovered damages from a competitor who falsely stated that he had failed and had gone into bankruptcy.3 And where in a newspaper it was stated in substance that a rival paper had been maintaining for some time a precarious existence; that it was no longer able to meet its financial obligations; that it was tottering, bankrupt, and about to pass out of existence, it was held that the article was libelous per se.4

DISPARAGEMENT OF GOODS AS AN INDIRECT ATTACK ON A MANUFACTURER OR DEALER.-Although statements which merely disparage the goods of a tradesman or manufacturer are not actionable without proof of special damage, those which also impeach the character or reputation of the plaintiff in his business are actionable per se. Accordingly, it has been held actionable to charge a competitor with selling a spurious article under. labels and wrappers which he had caused to be counterfeited," or to charge a butcher with selling Chinese pork and lard which contained the seeds of disease and spread pestilence and death, or to make false statements concerning the pedigree of a breeding horse which had been represented by the owners to be imported and registered." So where a retailer advertised a certain brand of shoes as perfect and undamaged stock, and at reduced prices, it was held actionable, although no special damage was averred, for the manufacturers to advertise that their damaged shoes were sold to certain dealers under an agreement that they should be sold as imperfect goods, and that those who bought their shoes of others than their designated agents would have only themselves to blame for any

1 Hays v. Mather, 15 Ill. App., 30 (1884).

2 Brown v. Vannaman, 85 Wis., 451 (1893).

a Wolkowsky v. Garfunkel, 65 Fla., 10 (1913).

4 Bee Publishing Co. v. World Publishing Co., 82 N. W., 28 (Nebr. Sup. Ct., 1900). See also Newell v. How, 31 Minn., 235 (1883); Simons v. Burnham, 102 Mich., 189 (1894); and Hynds v. Fourteenth Street Store, 144 N. Y. Supp., 1030 (1913).

Steketee v. Kimm et al., 48 Mich., 322 (1882). See also Landon et al. v. Watkins, 61 Minn., 137 (1895); Burr's Damascus Tool Works v. Peninsular Tool Mfg. Co., 142 Mich., 417 (1905); New Iberia Extract Co. v. E. McIlhenny's Son et al., 61 So., 131 (La., 1912).

6 Mowry v. Raabe et al., 89 Cal., 606 (1891).

7 Henkle et al. v. Schaub, 54 N. W., 293 (Mich. Sup. Ct., 1893). Per Long, J.: "It is apparent that the action is based, not only upon the slander of the horse, but also upon the character, fame, and credit of the plaintiffs, who are the owners thereof, and engaged in the business and calling of keeping the horse for hire, gain and reward." See also Wier v. Allen, 51 N. H., 177 (1871).

disappointment or loss that might ensue.1 On the other hand, in a case in which the facts were very similar, the Supreme Court of Massachusetts reached a different conclusion. There, it appeared that a representative of a manufacturer sold a tradesman a quantity of stockings, stating that they were first-quality navy blue, and that the dealer subsequently advertised them for sale at 12 cents a pair. The manufacturer thereupon published an advertisement containing the following:

Caution. An opinion of Shaw Knit hosiery should not be formed from the navy-blue stockings advertised as of first quality by Messrs. S. W. Boynton & Co. at 12 cents, since we sold that firm, at less than 10 cents a pair, some lots which were damaged in the dye-house.

Although the plaintiff submitted evidence tending to show that the stockings were not damaged in any respect, but were of first quality, the trial court instructed the jury to return a verdict for the defendant. This ruling was affirmed on appeal.2

In another case it appeared that the plaintiff and defendants were the only persons handling stoves in a certain town, and that the defendants published an advertisement purporting to be the statement of a satisfied customer to the effect that he had purchased of a certain hardware dealer, not the defendants, a stove which was represented as new and one of the best on the market, but that after only three years of careful usage he gave it to a drayman for hauling it away; and further stated that it may be that the American people like to be humbugged, and that some dealers still think so, but the great majority prefer a square deal. The court held that the article was libelous and that the contention that the defendants' interest as competing dealers refuted the presumption of malice and made the article in a sense privileged was without merit. Although it was urged that it was merely a disparaging criticism of the goods, the court

1 Holmes v. Clisby, 118 Ga., 820, 824 (1903). Per Cobb, J.: "Such a publication, in our opinion, exceeds the bounds of legitimate competition. It is right and proper for tradesmen to puff their own goods to the disparagement of those of others, but they must not allow their zeal to betray them into an attack upon the personal reputation of their competitors for honesty and integrity."

2 Boynton v. Shaw Stocking Co., 15 N. E., 507, 510 (1888). Per Allen, J.: "No doubt a case might be imagined where, from peculiar circumstances, as, for example, from the nature of the article offered for sale, or from the long continued habit of selling goods of a different character or quality from that represented, it would be a natural inference from a charge otherwise like that which is the subject of this action that the party was practicing fraud or imposition, or was guilty of trickery or meanness. In the present case, such an inference does not naturally arise, and the object of the defendant's advertisement, judging from its language, appears to have been rather to uphold and maintain the character of their goods, than to attack the plaintiff's character."

The Supreme Court of Georgia, in Holmes v. Clisby, above, referred to this decision and Boynton v. Remington, 3 Allen, 397, and, while admitting that they were very closely in point, declined to follow them, saying: "Notwithstanding the very high respect which we entertain for the distinguished court which rendered those decisions, we are unwilling to allow them to influence us to make a decision which in our judgment would be unsound."

was of the opinion that the article clearly intended to charge the dealer of being guilty of deception and unfair dealing.1

DISPARAGEMENT OF COMPETITORS' GOODS.-Actions based on statements merely in disparagement of a trader's goods have been brought less frequently in this country than in England, and they have generally been unsuccessful. This appears to be due partly to the fact that the pleadings were drawn on the theory that the disparaging language reflected also on the conduct of the plaintiff in the way of his trade, and was therefore actionable per se.

One of the earliest American cases of this description was brought in New York in 1830 by a watchmaker, who complained that a rival had said that the plaintiff's watches were not good, but were "bad" and "inferior." The court gave judgment for the defendant, observing that the words were not actionable in themselves and that special damage was not alleged. Likewise in Maryland, where the manufacturer of a dentifrice brought an action against a competitor who, it was alleged, had falsely stated that the plaintiff's article was nothing but grit, was very harmful to the gums, and would take the enamel off the teeth, it was held that in the absence of an averment of special damage the plaintiff could not recover.3

The same rule is applied in the Federal courts. Thus, where the defendants, in referring to a covering manufactured by a competitor, used the words, "You recommend something which the experience of all practical men demonstrates is a fraud," and further, "that it is a short-lived affair; that it warps, twists, chars, and becomes generally disintegrated, useless, and dangerous as a nonheat conducting cover to be applied to steam pipes," the court gave judgment for the defendant, being of opinion that the word "fraud" related to the covering and not to the plaintiff, and that the language amounted merely to the expression of an unfavorable opinion of the goods of a competitor. So, in the absence of an allegation of special damage,

1 Ramharter v. Olson et al., 128 N. W., 806 (S. Dak. Sup. Ct., 1910).

2 Tobias v. Harland, 4 Wend., 537, 543 (N. Y., 1830). Per Marcy, J.: "It appears to me, that when the words are spoken, not of the trader or manufacturer, but of the quality of the articles he makes or deals in, to render them actionable, per se, they must import that the plaintiff is guilty of deceit or malpractice in the making or vending of them. The words used by the defendant here do not import such charge, nor do they amount to a charge of the want of skill. They do not assert that the defendant could not make or did not deal in good watches, or that he practiced any deceit in making them by which purchasers were imposed upon.

"The principle on which this action must be sustained, if it be sustainable, would make a new class of words actionable; and when applied, as it would be, to the business communications of every description of citizens, its practical effects would, in my judgment, be alarming."

3 a Hopkins Chemical Co. v. Read Drug & Chemical Co. of Baltimore City, 92 Atl., 478 (Md. Ct. of App., 1914).

* Nonpareil Cork Manufacturing Co. v. Keasbey & Mattison Co. et al., 108 Fed., 721, 723 (C. C., 1901). Per Dallas, Circuit Judge: Such expressions are not uncommon instance is for determination by

among rivals in trade, and their correctness in each those whose custom is sought, and not by the courts."

it has been held not actionable to state that safes of a certain make and type are "very cheaply constructed" and "easily burglarized." 1 Owing to the absence of decisions on the merits in cases of this description, it is impossible to determine the extent to which a manufacturer or dealer in this country may disparage the goods of a competitor without rendering himself liable. This branch of the law, however, has been developed to some extent in England, as will appear hereafter.2

LIBEL AND SLANDER NOT ENJOINED.-It appears to be a settled doctrine in this country that the courts will not restrain the publication of a libel, as such, however great the injury to property may be. Thus, the United States Supreme Court directed the dismissal of a bill in which it was alleged that the defendants had combined for the purpose of destroying the plaintiff's business "by publications in the newspapers" and in various other ways. Mr. Justice Field observed that the plaintiff had a full remedy in the courts of law, and that if the publications were false and injurious he could prosecute the publishers for libel. Likewise, a Federal circuit court declined to restrain a light and power company from making statements to the effect that a certain competitor was insolvent, in great financial straits, or on the verge of bankruptcy, that it would very soon be out of business or in the hands of a receiver, or that it would not be able long to furnish electricity to its customers; and in another case refused to restrain the editor of a commercial newspaper from publishing articles supporting certain action taken by a retail merchants' association against mail-order houses. Likewise, where the manufacturer of Everett pianos alleged that a dealer kept at his place of business an untuned instrument which he falsely represented to be a new Everett piano, just received from the factory, the court declined to grant an injunction, being of opinion that the bill stated nothing more than a trade libel and consequently not a case for the interposition of a court of equity. In an early case in New York the court refused to restrain a pill manufacturer from publishing a pamphlet unquestionably intended as a gross libel upon a rival

4

1 Victor Safe & Lock Co. v. Deright, 147 Fed., 211 (C. C. A., 1906). See also Swan v. Tappan, 5 Cush., 104 (Mass., 1849); Dooling v. Budget Publishing Co., 144 Mass., 258 (1887); Wilson v. Dubois, 35 Minn., 471 (1886); Dust Sprayer Manufacturing Co. v. Western Fruit Grower, 126 Mo. App., 139 (1907); Kennedy v. Press Publishing Co., 41 Hun, 422 (N. Y., 1886); Bosi v. New York Herald Co., 68 N. Y. Supp., 898 (1901); Le Massena v. Storm, 62 N. Y. App. Div., 150 (1901); Marlin Fire Arms Co. v. Shields, 171 N. Y., 384 (1902); and West Va. Transportation Co. v. Standard Oil Co. et al., 50 W. Va., 611, 622 (1902).

2 See p. 382.

3 Francis et al. v. Flinn, 118 U. S., 385 (1886).

Citizens' Light, Heat & Power Co. v. Montgomery Light & Water Power Co., 171 Fed., 553 (C. C., 1909). See also American Malting Co. v. Keitel, 217 Fed., 672 (D. C., 1914). 5 Montgomery Ward & Co. v. South Dakota Retail Merchants & Hardware Dealers' Association et al., 150 Fed., 413 (C. C., 1907).

Everett Piano Co. v. Maus., 200 Fed., 718 (C. C. A., 1912).

manufacturer.1 And in Pennsylvania, where it was alleged that an agent and collector formerly employed by the complainant, an insurance company, entered the service of a competitor and falsely informed the members of the complainant association that it was going out of the sick-benefit branch of its business and would pay no more sick benefits, the court refused an injunction, observing that so far as a cause of action had been stated it was one for slander or libel and cognizable at law. So in Georgia the supreme court held that a sewing machine company was not entitled to an injunction to prevent a rival from publishing false statements to the effect that it, and not the complainant, had received a premium at a certain exhibition. It is likewise the rule in Massachusetts that a court of equity will not restrain false representations as to the character and business standing of the plaintiff, or as to the character or quality of his property or his title thereto, if there is no breach of trust or contract involved.

ENGLISH AND COLONIAL DECISIONS.6

PERSONAL DEFAMATION.-In England as in this country false words disparaging another in the way of his trade, by imputing fraudulent or dishonorable conduct in business, are actionable without proof of special damage. Thus it has been held a libel to state that a certain newspaper of limited circulation had reprinted columns of old advertisements from other newspapers to inveigle manufacturers into

1 Brandreth . Lance, 8 Paige, 23 (1839). See also Mauger v. Dick, 55 How. Pr., 132 (1878), where it was said that "the jurisdiction of a court of equity does not extend to false representations as to the character or quality of the plaintiff's property, or to his title thereto, when it involves no breach of trust or contract, nor does it extend to cases of libel or slander." And see Marlin Fire Arms Co. v. Shields, 171 N. Y., 384 (1902), refusing to enjoin the proprietor of a magazine from publishing any article attacking, misrepresenting, or depreciating the plaintiff's rifle, although the plaintiff had no remedy at law because of his inability to prove special damage.

2 Baltimore Life Insurance Co. v. Gleisner and The Commonwealth Beneficial Association, 202 Pa. St., 386 (1902). But see Continental Insurance Co. v. Board of Fire Underwriters of the Pacific et al., 67 Fed., 310, 323 (C. C., 1895), where McKenna, circuit judge, continued a restraining order prohibiting advertisements by a representative of certain insurance companies to the effect that he had authority to cancel the policies of certain competing companies when in fact he had no such authority. In answer to the claim that it was competitive retaliation, the court said: "But the advertisement exceeds proper competition, and advertises to the public that which is not true, to wit, that said Rucker & Co. had the right to cancel policies issued by plaintiff."

Singer Manufacturing Co. v. Domestic Sewing Machine Co. et al., 49 Ga., 70, 74 (1873). Per McCay, J.: "If a wrong capable of redress before the courts at all, it comes more nearly within the definition of a libel or of slander concerning one's trade or business, than anything else. Equity, it must be remembered, will not enjoin every wrong. * Libel and slander, however illegal and outrageous, will not be enjoined." Raymond v. Russell et al., 143 Mass., 295 (1887).

*

Boston Diatite Co. v. Florence Manufacturing Co. et al., 114 Mass., 69 (1873); Whitehead et al. v. Kitson, 119 Mass., 484 (1876).

Acts passed in England in 1854 and 1873 conferred on the courts of common law and chancery power to grant injunctions in all personal actions of contract or tort with no limitation as to defamation.