also ordered to pay damages.1 Similarly, where Richard Hayward & Sons distributed circulars stating in substance that Hayward & Co. in previous litigation had been "ordered" by the court not to represent themselves as the original firm of Richard Hayward & Sons, when in fact the action had been dismissed, and a voluntary undertaking had been entered into, it was held that the report was libelous as imputing fraudulent and dishonest conduct, and the court awarded nominal damages and an injunction.2

In Scotland an injunction was granted to restrain an insurance company from circulating handbills entitled "Scandalous revelations," stating that a rival company was conducting its business in a scandalous and improper manner, and had defrauded a woman policyholder and withheld money legally due under its policies.3

In Canada it has been held actionable for a watch manufacturer to charge that a rival deceived and defrauded the public by selling cheap Swiss watches as English, at twice or three times their true value, and to caution the public that certain unprincipled dealers sold worthless Swiss counterfeits as genuine American watches at far more than their value. In another Canadian case it appeared that the defendant, who sold lightning rods, published a statement to the effect that a competitor charged from 37 to 424 cents per foot whereas the defendant could furnish a better rod at from 7 to 10 cents per foot, and that he felt it to be an imposition practiced by the plaintiffs on the public when rods could be sold at such low prices. The statements were untrue, in that the prices charged by the plaintiffs included the cost of erection, while the sums charged by the defendant only included the price of the rod, although, as the jury found, they were intended to convey the impression that the cost of erection was also included. The jury found for the plaintiffs, and on appeal it was held that a cause of action had been disclosed." It has also been held actionable to publish a “caution," warning those dealing with the plaintiff that his pumps are an infringement of the defendant's patent, and advising them to "beware of the fraud and save costs."

Statements impeaching the credit of business rivals have also been condemned. Thus, a firm dealing in sewing machines secured an injunction against their former manager restraining him from stat

1 Kerr v. Gandy, 3 Times Law Reps., 75 (1886).

2 Hayward & Co. v. Hayward & Sons, 34 Ch. D., 198 (1886). See Saxby v. Easterbrook and Hannaford, L. R. (1878), 3 C. P. D., 339.

* British Legal Life Assurance & Loan Co. (Ltd.) v. Pearl Life Assurance Co. (Ltd.), 14 Session Cases (4th Series), 818 (1887).

4 Russell et al. v. Wilkes, 27 Upper Canada Q. B., 280 (1868).

Ontario Copper Lightning Rod Co. r. Hewitt, 30 Ontario Common Pleas, 172 (1879). See also Sloman v. Chisholm, 22 Upper Canada Q. B., 20 (1862), and Cohen v. Bell, (1910) Transvaal Leader Law Reps., 331.

Cousins v, Merrill, 16 Upper Canada C. P., 114 (1865).

ing to their customers that they were about to stop payment, or were in difficulties, or were insolvent, or from making other statements. of like effect. And where a business was being conducted by a receiver, a circular leading customers to believe that the business was in a failing state, or would shortly fail, was held libelous, and was punished as a contempt of court. In this case it was urged that the business when under the management of a receiver was no more entitled to protection from fair competition than the business carried on by the original firm. With respect to this, Bowen, L. J.,said: "If the acts complained of merely amounted to such fair competition, the argument would be unanswerable. But when I examine the facts I come to a different conclusion." Likewise, Cotton, L. J., observed: "If it had been fair competition, that argument would have to be dealt with. But in my opinion this was not a case of fair competition. No fair competition would justify the act of the appellant in sending round a copy of the report in the Times, which, if taken alone, would lead the customers to think that the business was in a failing state or would shortly fail."2

Publications tending to expose competitors to public hatred, contempt, or ridicule are also actionable. Thus an English court granted an injunction, where it appeared that a firm, taking advantage of popular prejudice, caused the publication of a statement to the effect that the directorate of a rival company was composed of Germans, and that by purchasing its commodities the public would be assisting the enemies of Great Britain.3

1 Hermann Loog v. Bean, L. R. (1884), 26 Ch. Div., 306.

2 Helmore r. Smith, L. R., 35 Ch. Div., 449, 454, 456 (1886).

J. Lyons & Co. (Ltd.) r. Lipton (Ltd.), Law Journal, Sept. 26, 1914, p. 542; and see Berridge r. Billinghurst, ib., and Hambourg r. The London Mail (Ltd.), Law Journal, Oct. 31, 1914, p. 597.

See also Coleman r. Southwick, 9 Johns., 44, where the editor of the New York Evening Post, in 1812, recovered damages for a libel appearing in the Albany Register, the effect of which was to cause it to be believed, among other things, that the plaintiff was under the influence of an unprincipled devotion to Great Britain and promulgated treasonable sentiments.

See also Marais v. The Volksstem Co., 3 O. R., 66 (1896), where the following words which appeared in the Volksstem, under the heading "British intervention," were held by the high court of the South African Republic to constitute a libel:

"This is the actual state of affairs, which widely differs from the view of the Star, of Land en Volk, Cape Times, Argus, and other hired Rhodes's organs.

Many of the colonial newspapers, among others the South African Telegraph and De Zuid Afrikaan, agree with our views; but what can we say of papers in the employ of Mr. Rhodes, which exist in this country, such as the Star, Advertiser, Land en Volk which throw their weight against the true interests of their country in favor of a foreign power?"

It was alleged that as Rhodes was considered by the burghers to be an enemy of the State, the plaintiff's paper was brought into contempt, and he suffered serious and irremediable damage through the withdrawal of subscriptions.

In 1905 the United Flexible Metallic Tubing Co. brought an action against one Crowther, alleging that he had slandered their goods by stating that they were made in Germany and not in England. The defendant offered a perpetual undertaking, which was accepted. (Crowther v. United Flexible Metallic Tubing Co. (Ltd.), 22 R. P. C., 549, 551.)

DISPARAGEMENT OF GOODS AS AN INDIRECT ATTACK ON A MANUFACTURER OR DEALER.-As noted above, a statement disparaging the quality of goods may also be defamatory of the manufacturer or dealer, and actionable without proof of actual damage. Such a case was Salmon v. Isaac, where the plaintiff, a manure dealer, recovered damages from a competitor who distributed circulars stating in effect that the plaintiff sold a mixture of sand, sawdust, and other worthless materials as genuine Peruvian guano. In another case it appeared that the Linotype Co. sent to the editors of two papers an article referring to certain Empire composing machines which had been installed in the office of the New York Evening Sun. The article concluded with the following paragraph:

1

So short-lived, however, does this installation appear to have been that we learn the machines were discontinued on Wednesday, April 29, and now the Empire Co. is in receipt of notice to remove them altogether in the course of a few days. This will be a very serious blow for this machine.

It appeared that in consequence of trade-union rules, the presence of the machines made it necessary for the owners of the Sun to pay higher wages to their workmen, and that the machines were removed for this reason. The jury found, among other things, that the publication imputed that the plaintiffs were knowingly selling useless machines, and, although no special damage was alleged or proved, judgment was entered for the plaintiffs in the sum of £500. This judgment was affirmed in the court of appeal and the House of Lords. On the other hand where a firm of paint manufacturers complained of a circular issued by a competitor which purported to be the report of a test of the latter's "Bell Brand Genuine White Zine" and the plaintiff's Patent White Zinc, showing that the former was slightly better than the latter, it was held that the circular was not defamatory of the plaintiff company.3

So where the publishers of a newspaper brought an action against the Advertiser's Protection Society grounded on a published statement by the latter to the effect that the paper had a circulation

1 Salmon v. Isaac, 20 Law Times Reps., 885 (1869).

2 British Empire Typesetting Machine Co. and Empire Typesetting Machine Co. of New York . Linotype Co., 14 Times Law Reps., 253 (Q. B. D., 1898); 79 Law Times Reps., 8 (1898); 81 Law Times Reps., 331 (1899).

* Hubbuck & Sons (Ltd.) r. Wilkinson, Heywood & Clark (Ltd.), L. R. (1899), 1 Q. B., 86, 92. Per Lindley, M. R.: "The fact that the defendants call their white zine genuine and contrast it with the plaintiff's patent white zinc, which is not called genuine, is relied upon by the plaintiffs as showing that the circular is or may be fairly regarded as a defamatory libel on the plaintiffs, i. e., a libel on them in the way of their trade. But when the whole circular is looked at, and it is found that the defendants state that for all practical purposes the two contrasted paints are in every respect equal, it is impossible to treat the circular as anything more than a disparagement of the white zinc paint made and sold by the plaintiffs. No ingenuity can convert the circular into a defamatory libel on the plaintiff company." Cf. Clarkson r. The Book Supply Co., p. 371.

of about 5,000, when, it was alleged, the circulation amounted in fact to some 30,000, it was held that the statement was not libelous.' Likewise where an action was brought by certain contractors installing the "G. B." system of electric traction, grounded on certain statements imputing that the system was a failure both generally and with reference to a particular installation, it was held that the language was not susceptible of a defamatory meaning. In another case it appeared that an asphalt company laid some roofing for a customer, and that the secretary of a rival company said to him: "You will regret ever using the rubbish put on by others as asphalt; it is only Trinidad rock, and not asphalt at all." The jury found that the words referred only to the article sold, and as it was also found that they were not used maliciously, and that there was no special damage, judgment was given for the defendant.

DISPARAGEMENT OF COMPETITORS' GOODS.-Although it now appears to be a well-settled rule in England that it is actionable to publish false statements disparaging the goods manufactured by another, provided that they have resulted in actual damage, it would seem that this branch of the law is of comparatively recent origin. Thus, in 1862 Chief Justice Cockburn speaking for the court, observed that "not one of us recollects such an action in the course of his experience." The first successful action of this description appears to have been brought in 1874. In this case a manufacturing company published a comparative analysis of four samples of artificial manure, accompanied with the statement that one of them, manufactured by the plaintiffs, appeared to contain "a considerable quantity of coprolites," and was "altogether an article of low quality, and ought to be the cheapest

case.

1 Publishers of the Observer (Ltd.) r. Advertiser's Protection Society (Ltd.) et al., London Times, Feb. 3 (p. 3), 1910. Per Darling, J.: "The action was based on two grounds, first, on that of libel, secondly, it was what might be called an action on the It was clear law that a company might be libeled as well as an individual, but a libel could only be constituted by something calculated to bring the company into ridicule or contempt. This might be done by statements relating to the conduct of the business by the directors, but he did not think that a mere statement that the circulation of a newspaper was 5,000 could amount to a libel, and therefore he held that as far as the action was based on libel there was no case." Cf. Heriot r. Stuart, 1-2 Espinasse, 437 (1796).

2 Griffiths et al. . Benn, 27 Times Law Reps., 346, 350 (C. A., 1911). Per Cozens Hardy, M. R.: "There is a violent, and, as the jury have found, an unjustifiable attack upon the G. B.' system-an attack which has not been proved to have caused any special damage. It seems to me extravagant to argue that an attack upon the system must be regarded as an imputation upon the owner of the patents who supplies the parts and licenses the use of the system."

* Société Francaise Des Asphaltes r. Farrell, 1 Cababé & Ellis, 563 (1885).

Young v. Macrae, 3 B. & S., 264, 269 (1862). The court did not refer to Evans v. Harlow, 5 A. & E. (n. s.), Q. B., 624, 8 Jurist, 571 (1844), where the court held that an advertisement disparaging the plaintiff's lubricators was not, in the absence of an allegation of special damage, ground for an action.

of the four." It was alleged that in consequence of these statements, which were untrue, certain persons ceased to deal with the plaintiffs. The court therefore held that the action could be maintained.1 Upon similar principles it was held actionable for a company which imported Australian karri and jarrah wood for street paving to write to members of a borough council advising them, before deciding to use American red-gum blocks on a certain roadway, to inspect certain roads which had been paved with this wood and were in a rotten condition after from 6 to 18 months' use. A firm importing the American blocks brought an action based on these letters and alleged special damage. Damages were awarded and the judgment was affirmed on appeal. In an earlier case where it appeared that "Liebig's Extract of Meat" was merely a descriptive title that might be used by any person manufacturing the article according to the Liebig recipe, the defendant was enjoined from issuing labels and advertisements containing the words "This is the only genuine" in connection with extract sold by him.3

Similarly, in New South Wales it has been held actionable for a photographer to state, "We are the only photographers supplying the rococo, as it is our own production," where it appeared that the plaintiff also used the so-called rococo process, and that the statement had resulted in loss of business. And in Canada, where the Acme Silver Co. sought to recover special damages resulting from the publication by a competitor of an advertisement in which it was

222.

1 Western Counties Manure Co. v. Lawes Chemical Manure Co., L. R. (1874), 9 Ex., 218, Per Bramwell, B.: "On the general principle, that an untrue statement disparaging a man's goods, published without lawful occasion, and causing him special damage, is actionable, we give our judgment for the plaintiffs."

Per Pollock, B.: "This case, no doubt, involves first principles. On the one hand, the law is strongly against the invention or creation of any rights of action, but on the other hand, where a wrong has actually been suffered by one person in consequence of the conduct of another, one is anxious to uphold as far as possible the maximum ubi jus ibi remedium. It seems to me the present case comes within that rule."

Alcott v. Millar's Karri and Jarrah Forests (Ltd.) et al., 91 Law Times Reps., 722 (C. A.. 1904). Per Collins, M. R.: "The learned judge, in his summing up, pointed out clearly to the jury what are the conditions under which an action of this kind can be maintained. The learned judge told the jury that you may crack up your own goods as long as you like; you may say that your goods are better than anybody else's, and that your goods have qualities that others have not. It may be true or untrue, but you are entitled to do that. You have no right to say of your neighbor's goods that they are bad, or rotten, or whatever it may be, if it is untrue, and if damage results to your rival.''

son.

3 Liebig's Extract of Meat Co. (Ltd.) v. Anderson, 55 Law Times Reps., 206 (1886). George v. Blow, 20 New South Wales Law Reps., 395, 399 (1899). Per Darley, C. J.: "The case closely resembles the case of Liebig's Extract of Meat Co. v. AnderMr. Justice Chitty, in granting an injunction to restrain the use of these words, stated that they amounted to a clear statement that what the plaintiffs sold was not genuine, and so in this case the statement put forward to the public was a clear intimation that no photographer but the defendant can supply genuine rococo photographs, and that all others purporting to be rococo photographs are spurious." Cf. Thorley's Cattle Food Co. v. Massam, p. 378, and Jarrahdale Timber Co. v. Temperley & Co., p. 385n.