Durfee, C. J.[550] This is an action on the case for conspiracy. The declaration charges in effect that the defendants and one Patrick Kenney, said Kenney being then a debtor of the plaintiffs, conspired together to prevent the plaintiffs and the other creditors of said Kenney from getting payment of their claims out of his property, and that, in pursuance of the conspiracy, Kenney made fictitious mortgages of his real and personal property to the defendants, under cover of which the defendants removed the personal property out of the possession of Kenney, and secreted it so that the plaintiffs were prevented from attaching it, and thus lost their claims. At the trial, after the plaintiffs had introduced their testimony in proof of the declaration, the court, on motion of the defendants, it having appeared that the plaintiffs were merely creditors at large of Kenney, without any interest in his property or lien upon it by attachment, levy, or otherwise, ruled that the action, in respect of the charges aforesaid, was not maintainable. The plaintiffs excepted to the ruling for error, and now petition for a new trial.
There is some conflict of authority on the question thus raised, but the more numerous and, we think, the better-reasoned and stronger cases are against the action. The principal ground of decision in these cases is that the damage, which is the gist of the action, is too remote, uncertain, and contingent, inasmuch as the creditor has, not an assured right, but simply a chance of securing his claim by attachment or levy, which he may or may not succeed in improving.[551] It is impossible to find any measure of damages for the loss of such a mere chance or possibility. Another ground, added in some of the cases, is that no action would lie in favor of such a creditor against the debtor for putting his property beyond the reach of legal process, if the debtor were to do it by himself alone, and that what would not be actionable if done by himself alone cannot be actionable any the more when done by him with the assistance of others. The first of these grounds, which is the fundamental one and has been chiefly relied on, has been so exhaustively analyzed and discussed in the cases that it is impossible for us to add anything to the reasons adduced in support of it; and therefore, without reproducing them, we deem it sufficient simply to cite the cases themselves, all of which are accessible and can be readily consulted. Lamb v. Stone, 11 Pick. 527; Wellington v. Small, 3 Cush. 145; Moody v. Burton, 27 Me. 427, 431; Adler v. Fenton, 24 How. U. S. 407; Austin v. Barrows, 41 Conn. 287, 296; Kimball v. Harman & Burch, 34 Md. 407, 410; Bradley v. Fuller, 118 Mass. 239. See also Bump on Fraudulent Conveyances, 505, 506; Cooley on Torts, 124, 586.
By the Court, Nelson, C. J.[553] The case is substantially this:—The father of the plaintiff devised to him, in due form of law, a farm consisting of one hundred and fifty-one acres of land. The defendant, being aware of the fact, and intending to deprive the plaintiff of the benefit and advantage of the devise, and of his expected estate and interest in the farm, falsely and maliciously represented to the father, that, after his decease, the plaintiff intended to set up a large demand against the estate, which would absorb the greater part of it, and thus deprive the other children of their just share; at the same time defaming and calumniating the character of the plaintiff in several particulars. By these fraudulent means the defendant prevailed upon the father to revoke and cancel the will, and to make and execute a new one, by which the plaintiff was excluded from all participation in his father’s estate.
This is the substance of the case, in its strongest aspect, as presented by the pleadings; and the question arises whether any actual damage, in contemplation of law, is shown to have been sustained by the plaintiff?
Fraud without damage, or damage without fraud, gives no cause of action; but where both concur, an action lies. Damage, in the sense of the law, may arise out of injuries to the person or to the property of the party; as any wrongful invasion of either is a violation of his legal rights, which it is the object of the law to protect. Thus, for injuries to his health, liberty and reputation, or to his rights of property, personal or real, the law has furnished the appropriate remedies. The former are violations of the absolute rights of the person, from which damage results as a legal consequence. As to the latter, the party aggrieved must not only establish that the alleged tort or trespass has been committed, but must aver and prove his right or interest in the property or thing affected, before he can be deemed to have sustained damages for which an action will lie.
Now, testing the plaintiff’s declaration by these principles, has he made out a case from which it can be said that damage has resulted to him? I think not. In respect to the farm devised to him by the first will, he fails to show that he had any such interest in it as the law will recognize. The only foundation of his claim rests upon the mere unexecuted intention of his father to make a gift of the property; and this cannot be said to have conferred a right of any kind. To hold otherwise, and sanction the doctrine contended for by the plaintiff, would be next to saying that every voluntary courtesy was matter of legal obligation; that private thoughts and intentions, concerning benevolent or charitable distributions of property, might be seized upon as the foundation of a right which the law would deal with and protect.
I have not overlooked the cases referred to on the argument, of actions of slander, where special damage must be shown in order to make the words actionable; and where the deprivation of any present substantial advantage, even though gratuitous, such as the loss of customers, of a permanent home at a friend’s, or advancement in life, and such like, if the immediate and direct consequence of the words, will sustain the action. 1 Starkie on Slander, 158 to 186, Ed. of 1843. If this description of special damage is to be regarded as the gist and foundation of the action, I rather think the principle should be regarded as peculiar to that species of injury. I am not aware of any class of remedies given for a violation of the rights of property, where so remote and contingent a damage has been allowed as a substantial ground of action.
But the law applicable to the cases referred to proceeds upon the ground that the plaintiff, by the wrongful act complained of, has been deprived of the present, actual enjoyment of some pecuniary advantage. No such damage can be pretended here. At best, the contemplated gift was not to be realized till after the death of the testator, which might not happen until after the death of the plaintiff; or the testator might change his mind, or lose his property.
In short, the plaintiff had no interest in the property of which he says he has been deprived by the fraudulent interference of the defendant, beyond a mere naked possibility; an interest which might indeed influence his hopes and expectations, but which is altogether too shadowy and evanescent to be dealt with by courts of law.
I am of opinion that the defendant is entitled to judgment.
Action of tort. Demurrer to declaration.
Knowlton, C. J.[555] This is an action of tort in which the defendant is charged with having deprived the plaintiff of a legacy, through his fraud in inducing a testatrix to execute the codicil by which the legacy purported to be given with only one witness, whereby the codicil was rendered invalid. The legatee named in the codicil was the plaintiff’s father, who had deceased before the codicil was made, although neither the testatrix nor the defendant then knew of his death.
One question is whether this legacy, which would be void at common law (see Maybank v. Brooks, 1 Brown Ch. 76; Dildine v. Dildine, 32 N. J. Eq. 78, 80; Moss v. Helsley, 60 Tex. 426, 436), is within the R. L. chap. 135, sec. 21, which provides that when a devise or legacy is made to a child or other relation of the testator who dies before the testator, leaving issue surviving the testator, such issue shall take the gift unless the will requires a different disposition of it.
We are of opinion that the purpose of the Legislature is best accomplished by holding the statute applicable to devises and legacies given to relations who died before the making of the will, as well as legacies and devises to those who died after the making of the will.
The defendant contends that the plaintiff’s declaration fails to aver damage suffered by him on account of the defendant’s misconduct. It is true, as he argues, that in order to create a liability of this kind, there must be, not only a wrong inflicted by the defendant, but damage to the plaintiff resulting directly therefrom. Lamb v. Stone, 11 Pick. 527, 534, 535; Wellington v. Small, 3 Cush. 145, 149; Bradley v. Fuller, 118 Mass. 239, 241. See also Jenks v. Hoag, 179 Mass. 583, 585; Freeman v. Venner, 120 Mass. 424, 426, 427; Adler v. Fenton, 24 How. 408, 410.
In this case the averments are, in substance, that the defendant was the executor and residuary legatee named in a will of one Jane V. Corbin, and that she formed a purpose to give a legacy of $5000 to Henry G. Lewis, the plaintiff’s father, who was her second cousin, that she was over eighty years of age, and, for advice and assistance in matters of business, was dependent upon the defendant, who occupied a confidential relation towards her, that, wrongfully and fraudulently intending and contriving to defeat her will and intention, and to deprive and defraud Henry G. Lewis and his heirs of the sum of $5000, he advised and procured the testatrix to execute a codicil to her will in the presence of only one witness, namely, the defendant, whereas the law of Rhode Island required the execution of the codicil in the presence of more than one witness, as the defendant well knew. It is then averred that the estate of the testatrix was large, and that, if the codicil had not failed for want of due attestation owing to the fraud practised by the defendant, the plaintiff would have received about $1650.
Whether a person named as legatee has a remedy, in a case like this, is a question which, so far as we know, has never been decided in this Commonwealth. See Melanefy v. Morrison, 152 Mass. 473, 476. The testatrix, desiring to give the legacy and intending to express her desire in a way that would be effectual after her death, unless in the meantime she should change her purpose, was fraudulently induced to express it ineffectually, when she supposed that she had made a legal and valid codicil. Plainly such fraudulent conduct was a wrong upon the plaintiff as well as upon the testatrix. The question in the case is whether the plaintiff has averred sufficient facts to show that damage resulted to him directly as a consequence of the wrong. The defendant relies strongly upon Hutchins v. Hutchins, 7 Hill, 104, decided by the Supreme Court of New York. The declaration in that case charged that the plaintiff’s father had made a will devising a farm to the plaintiff, and that the defendants, who were interested in the testator’s estate, he being a feeble man, advanced in years, and incapable of transacting business, fraudulently induced him to make another will in which the devise to the plaintiff was omitted. The case was heard on a demurrer. The court said “Fraud without damage, or damage without fraud gives no cause of action; but where both concur, an action lies.... The only foundation of his claim rests upon the mere unexecuted intention of his father to make a gift of the property, and this cannot be said to have conferred a right of any kind. To hold otherwise and sanction the doctrine contended for by the plaintiff would be next to saying that every voluntary courtesy was matter of legal obligation, and that private thoughts and intentions concerning benevolent or charitable distributions of property might be seized upon as the foundation of a right which the law would deal with and protect.... But the law applicable to the cases referred to proceeds upon the ground that the plaintiff, by the wrongful act complained of, has been deprived of the present actual enjoyment of some pecuniary advantage. No such damage can be pretended here. At best the contemplated gift was not to be received until after the death of the plaintiff, or the testator might change his mind, or lose his property.” This case has been cited with approval in this Commonwealth and elsewhere. Randall v. Hazelton, 12 Allen, 412, 416; Emmons v. Alvord, 177 Mass. 466, 471; Adler v. Fenton, 24 How. 408, 410. We have been referred to no other decision upon similar facts, and we have found no other. It seems pretty plain that, if a suit were brought in the lifetime of the testator, immediately after the practice of the fraud, no substantial damage could be recovered. Very likely the court was right in deciding that no action could be maintained. The plaintiff’s relation to the subject to which the fraud was directed was not close enough to cause him pecuniary loss, apart from the happening of subsequent events. Even if there were no fraud the legacy might never take effect. The testator might lose his property, or destroy his will, or make a different one. But the fraud put the plaintiff in a less advantageous position than he otherwise would have occupied in reference to the probability of receiving property under the will, and this change of position, accomplished by a fraud, naturally and probably might deprive him of that which, with fair dealing, he would receive. It seems to us that, while the fraud does not cause substantial damage apart from the happening of subsequent events which reasonably may be expected to happen, if these do happen, the defendant is chargeable with the natural consequences of his act. Suppose, in the present case, that the testatrix did not change her purpose to give the legacy of $5000 to Henry G. Lewis, and that for the rest of her life she desired and intended that this legacy should take effect, and thought that it would take effect. The fraud then would be operative up to the time of her death, and would accomplish the result intended by its author, by depriving the legatee of that which otherwise he would have received. It is averred that the testatrix left an estate sufficient to pay all or nearly all of this legacy, with the others. If the facts supposed above are proved, does it not follow that the fraud directly and proximately caused the plaintiff’s loss of his legacy? The defendant cannot complain that these supposed facts followed as conditions concurring with his fraud to cause the damage. His fraud was planned in reference to the probability that these events would follow. In Hutchins v. Hutchins, supra, there was no averment to show that the fraud was operative up to the time when the title to the property was changed by the death of the testator. The court treated the case as if the testator might have changed his purpose as to the disposition of his estate, for reasons of his own independently of the fraud.
While the declaration in the present case declares a result which might justify an inference that the loss was caused by the fraud alone, the averment seems hardly more than a statement of a conclusion of law from the facts given previously. Upon demurrer we think the pleading is defective in not averring facts which exclude the possibility that the testatrix changed her purpose in regard to this legacy, and which show that the fraud continued operative to the time of her death, and thus caused the loss to the plaintiff.
We think the charge of fraud is a sufficient statement of an actionable wrong. It charges much more than an expression of opinion by which the testatrix was misled. The defendant is accused of having dealt with a matter of fact, and with having fraudulently procured the making of the codicil without sufficient attestation of it.
We infer from the record that the testatrix was domiciled in Massachusetts, and that the construction of the will is governed by the law of this State. Welch v. Adams, 152 Mass. 74, 79; Sewall v. Wilmer, 132 Mass. 131, 136.
Clark, C. J. The complaint alleges that after the death of W. A. Bailey the defendants conspired to deprive the plaintiff and others of the benefits of his last will by removing from the paper writing to which the sheet of paper containing the alleged signature of the deceased was attached, that part providing for the legacy to the plaintiff and others and substituting other provisions therefor. The plaintiff contends that thereby a previous will has been admitted to probate. In the course of the proceeding the plaintiff asked for the appointment of a commissioner to take the examination of the defendants in the nature of a bill of discovery. The defendants demurred that the complaint did not state a cause of action. The court sustained the demurrer, and held that unless the will that had been proven in common form was attacked and set aside by caveat, the plaintiff could not maintain the cause of action set out in the complaint. This put an end to the plaintiff’s further progress in the cause, and she took a nonsuit and appealed.
The plaintiff is not seeking to attack the will on record, nor to probate what she alleges was a subsequent will. She is not seeking to recover anything out of the estate, but is bringing an action of tort against the parties who, as she alleges, conspired and injured her by removing the clause of, and the signature to, what was a subsequent will by which she would have received a legacy. It is an action of spoliation by which she alleges the defendants have prevented her receiving the sum of money which was due her if they had not fraudulently altered and defaced the subsequent will. She alleges that she does not attempt to set up the second will because the evidence accessible to her would not prove its entire contents. She prefers, therefore, to bring this action against the defendants for their wrong-doing in fraudulently destroying the part of the will which was beneficial to herself.
Though this action seems to be of the first impression in this state, and is doubtless a very unusual one, there is foundation and reason for the action upon well-settled principles of law, and we are not entirely without precedent. In Tucker v. Phipps, 3 Atkins, 359; cited in Barnesly v. Powell, 1 Ves. Sr. 284, it was held that, the spoliation being clearly proven, the plaintiff could maintain his action without setting up the will by a probate. It was held that:
“Where a will is destroyed or concealed, while the general rule is to probate the alleged will by proof in the Ecclesiastical Court [which was there the court for probate wills], yet the legatee might bring his action for the damage sustained by spoliation and suppression.”
In that case the spoliation was alleged to have been a destruction or concealment of the will by the executor. Such action against a stranger is even more appropriate than an independent action against the executor. Tucker v. Phipps is to be found in 26 English Reports (Reprinted) 1008. Another case very much in point is Barnesley v. Powell, 1 Ves. 119, 27 English Reports (Reprinted) 1034, in which Tucker v. Phipps is cited as authority and the court also refers with approval to
“A late case where the defendant burned a will, in which was a legacy to the plaintiff, so that it could not be proven in the Ecclesiastical Court [which cannot prove a will on loose parts of the contents of it], yet on the evidence of there being such a will, and the defendants destroying it, the court decreed the legacy to the plaintiff, as the defendant by his own iniquity had prevented the plaintiff from coming at it.”
There may be other precedents, but the instances must have been rare. Even if there had been no precedent, it would seem that, upon the principle of justice that there is “no wrong without a remedy,” the plaintiff is entitled to maintain this action, if, as she alleges, the defendants conspired and destroyed the subsequent will in which the legacy was left her. If she cannot prove the destroyed will because unable to prove the entire contents thereof (In re Hedgepeth, 150 N. C. 245, 63 S. E. 1025), surely she is entitled to recover of the defendants for the wrong they have done her by the conspiracy and destruction of the will, and the measure of her damages will be the legacy of which she has been deprived. It may be very difficult for her to prove her allegations by legal evidence and satisfactory to a jury, but with that we have nothing to do. The only question presented to us is the ruling of the court below that the complaint does not state a cause of action, and in this we think the court below was mistaken.
As the action is not to set up the will, nor against the estate, but against the defendants individually for their tort, the action could be brought in the county where the plaintiff resides.
Reversed.
Motion to enter judgment for the defendant, or for a new trial, by way of appeal from the judgment entered by Mr. Commissioner Bompas, Q. C., in an action tried with a jury at the Chester Summer Assizes, 1891.
The statement of claim in the action alleged that the plaintiff had for many years carried on the business, at Hawarden in the county of Flint, of an engineer and boiler-maker under the name of “Ratcliffe & Sons,” having become entitled to the good-will of the business upon the death of his father, who, with others, had formerly carried on the business as “Ratcliffe & Sons;” that the defendant was the registered proprietor, publisher, and printer of a weekly newspaper called the “County Herald,” circulated in Flintshire and some of the adjoining counties, and that the plaintiff had suffered damage by the defendant falsely and maliciously publishing and printing of the plaintiff in relation to his business, in the “County Herald,” certain words set forth which imported that the plaintiff had ceased to carry on his business of engineer and boiler-maker, and that the firm of Ratcliffe & Sons did not then exist.
At the trial the learned commissioner allowed the statement of claim to be amended by adding that “by reason of the premises the plaintiff was injured in his credit and reputation, and in his said business of an engineer and boiler-maker, and he thereby lost profits which he otherwise would have made in his said business.” The plaintiff proved the publication of the statements complained of, and that they were untrue. He also proved a general loss of business since the publication; but he gave no specific evidence of the loss of any particular customers or orders by reason of such publication. In answer to questions left to them by the commissioner, the jury found that the words did not reflect upon the plaintiff’s character, and were not libellous; that the statement that the firm of Ratcliffe & Sons was extinct was not published bona fide; and that the plaintiff’s business suffered injury to the extent of £120 from the publication of that statement. The commissioner, upon those findings, gave judgment for the plaintiff, for £120, with costs. The defendant appealed.[557]
The following judgment of the court (Lord Esher, M. R., Bowen, and Fry, L.JJ.), was read by
Bowen, L. J. This was a case in which an action for a false and malicious publication about the trade and manufactures of the plaintiff was tried at the Chester assizes, with the result of a verdict for the plaintiff for £120. Judgment having been entered for the plaintiff for that sum and costs, the defendant appealed to this court for a new trial, or to enter a verdict for the defendant, on the ground, amongst others, that no special damage, such as was necessary to support the action, was proved at the trial. The injurious statement complained of was a publication in the “County Herald,” a Welsh newspaper. It was treated in the pleadings as a defamatory statement or libel; but this suggestion was negatived, and the verdict of the jury proceeded upon the view that the writing was a false statement purposely made about the manufactures of the plaintiff, which was intended to, and did in fact, cause him damage. The only proof at the trial of such damage consisted, however, of evidence of general loss of business without specific proof of the loss of any particular customers or orders, and the question we have to determine is, whether in such an action such general evidence of damage was admissible and sufficient. That an action will lie for written or oral falsehoods, not actionable per se nor even defamatory, where they are maliciously published, where they are calculated in the ordinary course of things to produce, and where they do produce, actual damage, is established law. Such an action is not one of libel or of slander, but an action on the case for damage wilfully and intentionally done without just occasion or excuse, analogous to an action for slander of title. To support it actual damage must be shown, for it is an action which only lies in respect of such damage as has actually occurred. It was contended before us that in such an action it is not enough to allege and prove general loss of business arising from the publication, since such general loss is general and not special damage, and special damage, as often has been said, is the gist of such an action on the case. Lest we should be led astray in such a matter by mere words, it is desirable to recollect that the term “special damage,” which is found for centuries in the books, is not always used with reference to similar subject-matter, nor in the same context. At times (both in the law of tort and of contract) it is employed to denote that damage arising out of the special circumstances of the case which, if properly pleaded, may be superadded to the general damage which the law implies in every breach of contract and every infringement of an absolute right: see Ashby v. White, 2 Ld. Raym. 938; 1 Sm. L. C. 9th ed. p. 268, per Holt, C. J. In all such cases the law presumes that some damage will flow in the ordinary course of things from the mere invasion of the plaintiff’s rights, and calls it general damage. Special damage in such a context means the particular damage (beyond the general damage), which results from the particular circumstances of the case, and of the plaintiff’s claim to be compensated, for which he ought to give warning in his pleadings in order that there may be no surprise at the trial. But where no actual and positive right (apart from the damage done) has been disturbed, it is the damage done that is the wrong; and the expression “special damage,” when used of this damage, denotes the actual and temporal loss which has, in fact, occurred. Such damage is called variously in old authorities, “express loss,” “particular damage:” Cane v. Golding, Sty. 169; “damage in fact,” “special or particular cause of loss:” Law v. Harwood, Cro. Car. 140; Tasburgh v. Day, Cro. Jac. 484.
The term “special damage” has also been used in actions on the case brought for a public nuisance, such as the obstruction of a river or a highway, to denote that actual and particular loss which the plaintiff must allege and prove that he has sustained beyond what is sustained by the general public, if his action is to be supported, such particular loss being, as is obvious, the cause of action: see Iveson v. Moore, 1 Ld. Raym. 486; Rose v. Groves, 5 M. & G. 613. In this judgment we shall endeavor to avoid a term which, intelligible enough in particular contexts, tends, when successively employed in more than one context and with regard to different subject-matter, to encourage confusion in thought. The question to be decided does not depend on words, but is one of substance. In an action like the present, brought for a malicious falsehood intentionally published in a newspaper about the plaintiff’s business—a falsehood which is not actionable as a personal libel and which is not defamatory in itself—is evidence to show that a general loss of business has been the direct and natural result admissible in evidence, and, if uncontradicted, sufficient to maintain the action? In the case of a personal libel, such general loss of custom may unquestionably be alleged and proved. Every libel is of itself a wrong in regard of which the law, as we have seen, implies general damage. By the very fact that he has committed such a wrong, the defendant is prepared for the proof that some general damage may have been done. As is said by Gould, J., in Iveson v. Moore, 1 Ld. Raym. 486, in actions against a wrong-doer a more general mode of declaring is allowed. If, indeed, over and above this general damage, further particular damage is under the circumstances to be relied on by the plaintiff, such particular damage must of course be alleged and shown. But a loss of general custom, flowing directly and in the ordinary course of things from a libel, may be alleged and proved generally. “It is not special damage”—says Pollock, C. B., in Harrison v. Pearce, 32 L. T. (O. S.) 298,—“it is general damage resulting from the kind of injury the plaintiff has sustained.” So in Bluck v. Lovering, 1 Times L. R. 497, under a general allegation of loss of credit in business, general evidence was received of a decline of business presumably due to the publication of the libel, while loss of particular customers, not having been pleaded, was held rightly to have been rejected at the trial: see also Ingram v. Lawson, 6 Bing. N. C. 212. Akin to, though distinguishable in a respect which will be mentioned from, actions of libel are those actions which are brought for oral slander, where such slander consists of words actionable in themselves and the mere use of which constitutes the infringement of the plaintiff’s right. The very speaking of such words, apart from all damage, constitutes a wrong and gives rise to a cause of action. The law in such a case, as in the case of libel, presumes, and in theory allows, proof of general damage. But slander, even if actionable in itself, is regarded as differing from libel in a point which renders proof of general damage in slander cases difficult to be made good. A person who publishes defamatory matter on paper or in print puts in circulation that which is more permanent and more easily transmissible than oral slander. Verbal defamatory statements may, indeed, be intended to be repeated, or may be uttered under such circumstances that their repetition follows in the ordinary course of things from their original utterance. Except in such cases, the law does not allow the plaintiff to recover damages which flow, not from the original slander, but from its unauthorized repetition: Ward v. Weeks, 7 Bing. 211; Holwood v. Hopkins, Cro. Eliz. 787; Dixon v. Smith, 5 H. & N. 450. General loss of custom cannot properly be proved in respect of a slander of this kind when it has been uttered under such circumstances that its repetition does not flow directly and naturally from the circumstances under which the slander itself was uttered. The doctrine that in slanders actionable per se general damage may be alleged and proved with generality must be taken, therefore, with the qualification that the words complained of must have been spoken under circumstances which might in the ordinary course of things have directly produced the general damage that has in fact occurred. Evans v. Harries, 1 H. & N. 251, was a slander uttered in such a manner. It consisted of words reflecting on an innkeeper in the conduct of his business spoken openly in the presence of divers persons, guests and customers of the inn—a floating and transitory class. The court held that general evidence of the decline of business was rightly receivable. “How,” asked Martin, B., “is a public-house keeper, whose only customers are persons passing by, to show a damage resulting from the slander, unless he is allowed to give general evidence of a loss of custom?” Macloughlin v. Welsh, 10 Ir. L. Rep. 19, was an instance of excommunication in open church. General proof was held to be rightly admitted that the plaintiff was shunned and his mill abandoned, though no loss of particular customers was shown. Here the very nature of the slander rendered it necessary that such general proof should be allowed. The defamatory words were spoken openly and publicly, and were intended to have the exact effect which was produced. Unless such general evidence was admissible, the injury done could not be proved at all. If, in addition to this general loss, the loss of particular customers was to be relied on, such particular losses would, in accordance with the ordinary rules of pleading, have been required to be mentioned in the statement of claim: see Ashley v. Harrison, 1 Esp. 50. From libels and slanders actionable per se, we pass to the case of slanders not actionable per se, where actual damage done is the very gist of the action. Many old authorities may be cited for the proposition that in such a case the actual loss must be proved specially and with certainty: Law v. Harwood, Cro. Car. 140. Many such instances are collected in the judgments in Iveson v. Moore, 1 Ld. Raym. 486, where, although there was a difference as to whether the general rule had been fulfilled in that particular kind of action on the case, no doubt was thrown on the principle itself. As was there said—in that language of old pleaders which has seen its day, but which connoted more accuracy of legal thought than is produced by modern statements of claim—“damages in the ‘per quod,’ where the ‘per quod’ is the gist of the action, should be shown certainly and specially.” But such a doctrine as this was always subject to the qualification of good sense and of justice. Cases may here, as before, occur where a general loss of custom is the natural and direct result of the slander, and where it is not possible to specify particular instances of the loss. Hartley v. Herring, 8 T. R. 130, is probably a case of the kind, although it does not appear from the report under what circumstances, or in the presence of whom, the slanderous words were uttered. But if the words are uttered to an individual, and repetition is not intended except to a limited extent, general loss of custom cannot be ordinarily a direct and natural result of the limited slander: Dixon v. Smith, 5 H. & N. 450; Hopwood v. Thorn, 19 L. J. (C. P.) 95. The broad doctrine is stated in Buller’s Nisi Prius, p. 7, that where words are not actionable, and the special damage is the gist of the action, saying generally that several persons left the plaintiff’s house is not laying the special damage. Slanders of title, written or oral, and actions such as the present, brought for damage done by falsehoods, written or oral, about a man’s goods or business, are similar in many respects to the last-mentioned class of slanders not actionable in themselves. Damage is the gist of both actions alike, and it makes no difference in this respect whether the falsehood is oral or in writing: Malachy v. Soper. The necessity of alleging and proving actual temporal loss with certainty and precision in all cases of the sort has been insisted upon for centuries: Lowe v. Harewood, W. Jones, 196; Cane v. Golding, Sty. 176; Tasburgh v. Day, Cro. Jac. 484; Evans v. Harlow, 5 Q. B. 624. But it is an ancient and established rule of pleading that the question of generality of pleading must depend on the general subject-matter: Janson v. Stuart, 1 T. R. 754; Lord Arlington v. Merricke, 2 Saund. 412, n. 4; Grey v. Friar, 15 Q. B. 907; see Co. Litt. 303 d; Westwood v. Cowne, 1 Stark. 172; Iveson v. Moore, 1 Ld. Raym. 486. In all actions accordingly on the case where the damage actually done is the gist of the action, the character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry. The rule to be laid down with regard to malicious falsehoods affecting property or trade is only an instance of the doctrines of good sense applicable to all that branch of actions on the case to which the class under discussion belongs. The nature and circumstances of the publication of the falsehood may accordingly require the admission of evidence of general loss of business as the natural and direct result produced, and perhaps intended to be produced. An instructive illustration, and one by which the present appeal is really covered, is furnished by the case of Hargrave v. Le Breton, 4 Burr. 2422, decided a century and a half ago. It was an example of slander of title at an auction. The allegation in the declaration was that divers persons who would have purchased at the auction left the place; but no particular persons were named. The objection that they were not specially mentioned was, as the report tells us, “easily” answered. The answer given was that in the nature of the transaction it was impossible to specify names; that the injury complained of was in effect that the bidding at the auction had been prevented and stopped, and that everybody had gone away. It had, therefore, become impossible to tell with certainty who would have been bidders or purchasers if the auction had not been rendered abortive. This case shows, what sound judgment itself dictates, that in an action for falsehood producing damage to a man’s trade, which in its very nature is intended or reasonably likely to produce, and which in the ordinary course of things does produce, a general loss of business, as distinct from the loss of this or that known customer, evidence of such general decline of business is admissible. In Hargrave v. Le Breton it was a falsehood openly promulgated at an auction. In the case before us to-day, it is a falsehood openly disseminated through the press—probably read, and possibly acted on, by persons of whom the plaintiff never heard. To refuse with reference to such a subject-matter to admit such general evidence would be to misunderstand and warp the meaning of old expressions; to depart from, and not to follow, old rules; and, in addition to all this, would involve an absolute denial of justice and of redress for the very mischief which was intended to be committed. It may be added that, so far as the decision in Riding v. Smith can be justified, it must be justified on the ground that the court (rightly or wrongly) believed the circumstances under which the falsehood was uttered to have brought it within the scope of a similar principle. In our opinion, therefore, there has been no misdirection and no improper admission of evidence, and this appeal should be dismissed with costs.
Tort. Writ dated Sept. 18, 1885. The declaration was as follows:
“And the plaintiff says that he is, and has been for many years, a compiler and publisher of directories of cities, towns, and counties in this Commonwealth and elsewhere; that by care, attention, skill, and faithfulness, and after great labor and expense, he had acquired a large number of subscribers among business men and other people, throughout the cities and towns of Bristol County, and elsewhere in this Commonwealth, for ‘The Bristol County Directory,’ which the plaintiff has compiled and published biennially for many years, and until the acts and doings of the defendant hereinafter complained of; that, at great labor and expense, he had acquired a large and valuable list of advertisers in his said directory, from whom, as well as from the said subscribers to said directory, he obtained a large income, and would have continued to do so, but for the acts and doings of the defendant hereinafter alleged and set forth.
“And the plaintiff says that, according to his usual and ordinary custom in the compilation and publication of the said ‘The Bristol County Directory,’ he would have compiled and published the same in this year, A. D. 1885, and he made his preparations therefor, but he says that the defendant and his canvassers, and other servants and agents, in order to injure the plaintiff, and to deprive him of the opportunity of compiling and publishing said directory for said year of 1885, and thereafterwards, and receiving the gains and profits therefrom, and to secure the same to the defendant, together with all the gains and profits arising therefrom, and otherwise to injure the plaintiff and get gain, profit, and advantage to the defendant, knowingly and wilfully, falsely and fraudulently, pretended and represented to many persons, and particularly to the plaintiff’s patrons, the advertisers in said directory and the subscribers thereto throughout said Bristol County, that the plaintiff had gone out of the business of compiling and publishing said directory, that the plaintiff had sold out said business to the defendant, that the said canvassers and the defendant’s other servants and agents were compiling the materials for the plaintiff’s directory, the same as formerly, and other false and fraudulent representations then and there made, of which the plaintiff is not yet fully informed, and thereby deceitfully and wrongfully induced the plaintiff’s said patrons, advertisers, and subscribers, in and throughout said Bristol County, to give to the defendant their advertisements and subscriptions, and to pay him instead of the plaintiff therefor.
“Whereas, in truth and in fact, the said representations were wholly false and untrue; the plaintiff had neither gone out of the business of compiling and publishing the said directory, as he had done for years before, nor had he sold out to the defendant, nor had he any intention of doing so; nor were the defendant and his canvassers, and other agents and servants, compiling the said directory the same as formerly or for the plaintiff; all of which the defendant, as well as his said canvassers and other servants and agents, well knew. And the defendant did knowingly, wrongfully, injuriously, and deceitfully compile and publish the said ‘The Bristol County Directory,’ for the year A. D. 1885, and vend and sell the same to the plaintiff’s patrons, advertisers, subscribers, and other persons, as aforesaid. And the plaintiff says that thereby he has been prevented from compiling, publishing, and selling his said directory this year, A. D. 1885, as he has always done heretofore; that he has lost the great gains and profits which he would otherwise have made and received from the sale thereof, and from advertisers in and subscribers to said directory, and has been put to great loss and expense in preparing for said compilation and publication, till he learned of the defendant’s said act and doings, and thereby he will be hereafter prevented from compiling and publishing said directory except at an increased expense and with diminished profits.”
The defendant demurred to the declaration, on the ground that it did not set forth a legal cause of action.
The Superior Court sustained the demurrer; and ordered judgment for the defendant. The plaintiff appealed to this court.
Field, J. The plaintiff in his declaration does not allege that, by the acts of the defendant, he has been deprived of the benefit of any contract he had made, or of any property in existence and in his possession, or that the defendant published his directory for 1885 as a directory prepared and published by the plaintiff; and does not bring his case within such decisions as Lumley v. Gye, Marsh v. Billings, 7 Cush. 322; Thomson v. Winchester, 19 Pick. 214; Blofeld v. Payne, 4 B. & A. 410; Morison v. Salmon, 2 M. & G. 385; and Sykes v. Sykes, 3 B. & C. 541.
He does not allege that he had any copyright in the previous publications which the publication of the defendant infringed; and the courts of the Commonwealth have no jurisdiction over infringements of copyright. If each publication of a directory by the plaintiff every two years was a separate publication, then the plaintiff’s declaration amounts to this,—that he intended to publish a directory for 1885, whereby he expected to make profits, but, by reason of the acts of the defendant, he abandoned such an intention, and lost the profits he otherwise would have made. But an intention in the mind of the plaintiff to compile and publish a directory is not property, and the abandonment of such an intention is not a loss of property. Bradley v. Fuller, 118 Mass. 239.
An attempt has been made to bring this case within what is called slander of goods, manufactured and sold by another. See Western Counties Manure Co. v. Lawes Chemical Manure Co., L. R. 9 Ex. 218. This implies that the plaintiff was engaged in the business of making and selling directories, and that the defendant made statements disparaging the plaintiff’s business. We think that the declaration does not show that the business of the plaintiff, in publishing a new directory every two years, was a continuous business. The directory to be published in 1885 was to be a new compilation and publication. From the nature of the book, perhaps this could not well be otherwise. New subscribers and new advertisements were to be obtained. We have been shown no case where it has been held that a false statement that the plaintiff had gone out of business, or sold out his business to the defendant, was an actionable slander of a person in his trade; but upon this we express no opinion. It may be said that such statements tend to injure a man in his business, because they tend to prevent customers from resorting to him for trade, and to injure the value of the good-will of his business. However this may be, the difficulty is in attaching good-will as a valuable thing to the publication every two years of a new directory. Such a directory could be published by anybody. It is perhaps a question of degree whether the publication by the plaintiff had been so frequent and regular that there can be said to be a good-will that would be protected in law. There is no allegation of any continuing contract, express or implied, of subscribing for, or advertising in, the directories, as a publication periodically issued; there is no allegation of any place of business to which customers resorted to purchase directories. Until the plaintiff had entered upon the compilation of the directory for 1885, we do not think that there was any business of publishing a directory for 1885 carried on by the plaintiff, or anything that, for example, could have been sold as a going concern by an assignee in insolvency, if the plaintiff had become an insolvent debtor. The cases upon liability for wrongful interference with the business of another are largely collected in Walker v. Cronin; but in that case there was an actual business, with the carrying on of which the defendant wrongfully interfered. The declaration in this case, indeed, alleges that the plaintiff made his preparations for compiling and publishing a directory for 1885, but it does not allege what those preparations were, or that they were anything valuable. The averment that he “has been put to great loss and expense in preparing for said compilation and publication,” near the end of the declaration, appears to be a part of the damages.
The plaintiff cites Swan v. Tappan, 5 Cush. 104, but there the declaration was held insufficient, because there was no allegation of special damage. The declaration in the present case cannot well be distinguished in this respect from the declaration in Swan v. Tappan, but we do not deem it necessary to reconsider the decision in that case on this point. There, the plaintiff was actually engaged in selling his book, which had already been printed and put upon the market, and the action was the ordinary action for the malicious disparagement of the goods of another, manufactured and kept for sale.
The plaintiff relies upon Benton v. Pratt, 2 Wend. 385, which perhaps may be considered as an extreme case. See Randall v. Hazelton, 12 All. 412. In Benton v. Pratt, Seagraves and Wilson, at Allentown, had orally agreed to purchase of the plaintiff two hundred hogs, at the market price, if delivered within three or four weeks, and they had not been previously supplied; and, “about the time for the delivery,” the plaintiff was proceeding with his drove of hogs to Allentown for the purpose of delivering to them two hundred hogs. The defendant, by his falsehood and deceit, intentionally prevented the performance of this contract, by persuading Seagraves and Wilson that the plaintiff was not intending to drive his hogs to Allentown, whereby they were induced to buy the hogs of the defendant, instead of buying the hogs of the plaintiff, as they otherwise would have done. The court say, that it was “not material whether the contract of the plaintiff with Seagraves and Wilson was binding upon them or not;” but the agreement, if there was an agreement, although not in writing, was an actual offer by Seagraves and Wilson, not revoked, and which they would have performed, and the plaintiff was in the actual possession of the property which Seagraves and Wilson had offered to buy, and was actually proceeding to deliver this property to them, in accordance with their offer.
The fatal objection to the present case is, that it is entirely problematical whether the plaintiff would actually have published a directory if the defendant had not made the fraudulent misrepresentations alleged. The plaintiff abandoned his intention to compile and publish a directory in consequence of the defendant’s acts; but this, upon the principles stated in Bradley v. Fuller, 118 Mass. 239, and the cases therein cited, is not sufficient to support an action.