
    Lewis and Herrick v. Chapman.
    A written communication made by a banker in the country to a mercantilo house in New-York, in respect to the pecuniary responsibility of a customer of such house, whose note has been sent to him for collection, is privileged. In order to maintain an action for libel against him, express malice must he shown, and cannot he inferred from the mere falsity of the statement.
    A banker, by lvay of explaining his delay for a week after its maturity to remit the proceeds of a note sent to him for collection, appended to his letter, covering the remittance, the words “ Confidential. Had to hold over for a few days for the accommodation of the makersHeld, that these words did not necessarily impute to the makers a want of ability to meet their paper at maturity, and that it was a question for the jury whether they were used in an injurious or an innocent sense.
    Malice in fact, and imputed malice or malice in law, differ not in nature, but only in the evidence by which they are established. Per Selden, J.
    Appeal from the Supreme Court. The action was for libel, and was tried at the Wayne circuit, before Mr. Justice Strong. At the trial it was proved that the plaintiffs were merchant tailors at Lyons, and the defendant a banker at the same place. A few days before April 19, 1851, the defendant received for collection, from Cromwell, Haight & Co., a mercantile house in New-York, a note for $100, payable on that day at his bank, and drawn by the plaintiffs. There was conflicting evidence as to the payment of the note, which the plaintiffs took up at its maturity, giving: therefor their draft upon the defendant’s bank, at which they made deposits and kept an account. The draft overdrew their account, but was accepted by a clerk of the defendant, who, in reply to an offer from one of the plaintiffs to transfer an amount, standing to the credit of his individual account, sufficient to meet the check, declared it to be unnecessary. The defendant did not remit the amount of the note to Cromwell, Haight & Go. until the twenty-eighth of April, the plaintiffs having made their account good on the twenty-fifth, and there was conflicting evidence upon the question whether the delay was in consequence of the non payment of the note, except by an overdraft, or in consequence of the defendant i bank being short of funds in New-York, on which to draw for the payment of Cromwell, Haight & Go. The defendant added to his letter, inclosing his draft to Cromwell, Haight & Co. for the proceeds of the note, a postscript, in the following words: “ Confidential. Had to hold over a few days for the accommodation of Lewis & Herrick.” The judge charged the- jury that this postscript was libelous, if false, and that unless they should find the matter contained in it substantially true they must find for the plaintiff; that, so far as malice was necessary to a right of action in this case, it is properly inferable, from the falsity of the words charged in the complaint, as libelous. The defendant excepted to this portion of the charge, and the jury rendered a yerdict for che plaintiff for $750. The Supreme Court, at general term in the seventh district, denied a motion for a new trial, and judgment having been perfected for the plaintiffs, the defendant appealed to this court.
    
      John H. Reynolds, for the appellant.
    
      James C. Smith, for-the respondents.
   Selden, J.

The principal questions in this case arise upon that portion of the charge by which the jury were instructed that the postscript to the letter of Sisson & Chapman to Cromwell, Haight & Co. was libelous, per se, and that, if they found the statement in the postscript to be false, their verdict must be for the plaintiffs.

Among other points made by the counsel for the defendant, it is insisted: First. That the language of the postscript is equivocal; that it does not necessarily impute to the plaintiffs any want of ability to meet their paper, but may have meant merely that the note was held over for a short time as a matter of convenience to them ; and that its interpretation in this respect was a question for the jury, and should have been submitted to them. Second. That the communication was privileged; and that the jury should have been instructed that the plaintiffs could not recover without proof of actual malice.

There is no doubt that where the language of an alleged libel is ambiguous, and capable of being understood in an innocent and harmless, as well as an injurious sense, its true interpretation is a question for the jury; but it is equally clear that if, upon an examination of the whole writing and comparison of its different parts, it appears to admit of no just construction except one which is injurious to the plaintiffs, its meaning is to be determined by the court. (Haire v. Wilson, 9 Barn. &Cress., 643; Fisher v. Clement, 10 id., 472 ; Van Vechten v. Hopkins, 5 John., 211.)

It is, perhaps, true, as claimed by the defendant’s counsel, that the words “ Had to hold over a few days for the accommodation of L. & H.” are not necessarily to be taken in an injurious sense; that they might have meant merely that a little temporary indulgence had been granted to them as a matter of convenience and not of necessity. Had these, therefore, been the only words used,. it might, perhaps, have belonged to the jury to say in what sense they were intended to be understood, although it can hardly be denied that, without some explanation of the circumstances they would still have been calculated to cast a shade of suspicion upon the plaintiffs’ responsibility.

If, however, these words had been used in the purely harmless sense here suggested, it is difficult to imagine any reason for their being preceded, as they were, by the word “ confidential.” This word gives character and point to the communication, and manifests a consciousness on the part of the writer that the fact communicated was one which the plaintiffs would not wish to have generally known. It seems impossible to resist the conclusion that the defendant, when he added the postscript in question, was aware that it might affect the credit of the plaintiffs. Admitting, then, that the words of the postscript would have been ambiguous and equivocal if used alone, I think they are not so when taken in connection with the word “ confidential,” which precedes them; and consequently, that the judge was right in assuming that they were to be understood in an injurious sense. It becomes necessary, therefore, to examine the question whether the communication, alleged to be libelous, was so far privileged as to throw upon the plaintiffs the burden of proving express malice.

Malice is essential to every action for libel. It has been sometimes divided into legal malice, or malice in law, and actual malice, or malice in fact. These terms might seem to imply that the two kinds of malice are different in their nature. The true distinction, however, is not in the malice itself, but simply in the evidence by which it is established. In all ordinary cases, if the charge or imputation complained of is injurious, and no justifiable motive for making it is apparent, malice is inferred from the falsity of the charge. The law, in such cases, does not impute malice not existing in fact, but presumes a malicious motive for making a charge i which is both false and injurious when no other motive appears. Where, however, the circumstances show that the defendant may reasonably be supposed to have had a just and worthy motive for making the charge, then the law ceases to infer malice from the mere falsity of the charge, and requires from the plaintiff other proof of its existence. It is actual malice in either case; the proof only is different.

The term “privileged,” as applied to a communication alleged to be libelous, means simply that the circumstances under which it was made were such as to repel the legal inference of malice, and to throw upon the plaintiff the burden of offering some evidence of its existence beyond the mere falsity of the charge. It is no answer, therefore, to the position taken here, that the communication was privileged, to show that the jury would have been warranted in finding the existence of actual malice from the extrinsic evidence in the case. That question was not submitted to them. On the contrary, they were expressly instructed that the law would infer malice from the falsity of the words. If in this respect the charge was erroneous, there must, of necessity, be a new trial, without regard to the question whether express malice was proved.

The inquiry, then, is whether the circumstances in this case were such as to bring the communication within the class termed privileged. The limits of that class are not very clearly defined. The general rule, as stated by Mr. Staekie, is, that “When a communication is made, in confidence, either by or to a person interested in the communication, supposing it to be true, or by way of admonition or advice, it seems to be a general rule that malice (z. e., express malice) is essential to the maintenance of the action.” (1 Starkie on Slander, 321.)

If this rule is strictly accurate, then it is plain that the communication in this case was privileged; because it was made, in confidence, to persons directly interested in it, and apparently by way of advice. It is not entirely clear, however, but that the rule as here laid down may require some qualification. Where both parties, i. e., the party making as well as the party receiving, have an interest in the communication, it has never been doubted that it was privileged. Where, however, the interest is confined solely to the party receiving, the authorities are not so decided. Mr. Starkie appears to rest this portion of his rule mainly upon the case of Cleaver v. Sarraude, referred to by Lord Ellenborouqii, C. J., in McDougal v. Claridge (1 Camp., 267; 1 Stark, on Slander, 324). In that case a letter had been written confidentially to the Bishop of Durham, who employed the plaintiff as steward, to inform him of certain supposed malpractices by the plaintiff. As the defendant appears to have acted Iona fide, the plaintiff was nonsuited, although it was not shown that the defendant had any interest in the matter.

This case, however, has not been regarded in England as settling the principle. In the cases of Coxhead v. Richards (2 Mann., Gr. & Scott, 569), and Bennett v. Beacon (id., 628), the Court of Common Pleas was equally divided upon the question whether a stranger is justified in volunteering to give information, injurious to another, to one interested in the knowledge.

But, whatever may be the true doctrine on this subject, there is no doubt that where the communication is made bona fide, in answer to inquiries from one having an interest in the information sought, or where the relation between the parties by whom and to whom the communication is made is such as to render it reasonable and proper that the information should be given, it will be regarded as privileged. The precise question here is, whether such a relation existed in this case. In Todd v. Hawkins (8 Carr. & Pa., 88), it was held that a letter written in good faith by the defendant to his mother-in-law, who was about to marry again, warning her of the bad character of her intended husband, was privileged ; and a like decision was made in the case of Cockayne v. Hodgkisson (5 Carr. & Pa., 543), where a tenant of a nobleman had written to inform him of his gamekeeper’s neglect of duty. So, too, in this state, in the case of Wash-burn v. Cooke (3 Denio, 110), a communication made by’an agent to his principal, in regard to the conduct of a third person connected with the business of the agency, was held to be privileged.

These cases show that all that is necessary to entitle such communications to be regarded as privileged is, that the relation of the parties should be such as to afford reasonable ground for supposing an innocent motive for giving the information, and to deprive the act of an appearance of officious intermeddling with the affairs of others. Assuming, then, that the defendant made the communication in perfect good faith, as we must upon this question of privilege, is it to be regarded as an act of officiousness, on the part of a banker in the country, intrusted by a mercantile house in New-York with the collection of a note, to inform such house of the inability of the maker to meet the note at maturity? It would seem that if the relation of a son-in-law to his mother-in-law, of a tenant to his landlord, and of an ordinary agent to his principal, are sufficient, as in the cases just cited, to cause the information to be considered as privileged, that existing in this case must be equally so. It is a matter of the utmost interest to merchants in the city to be able to judge of the responsibility of their customers in the country; and even if they have no right to expect information on the subject from those whom they employ to collect their paper, yet the giving of such information by the person employed, where, as in this case, it relates to the very business with which he is intrusted, can scarcely be considered as officious, or more than an act of just reciprocity.

The communication, therefore, charged in this case as libelous, must be regarded as privileged. The defendant is nevertheless liable if there was any want of good faith in making it; but that question must be passed upon by the jury, and there must be a new trial for that purpose.

Paige, J.

Words spoken or published of a party, as a merchant or tradesman, in relation to his solvency, to be actionable, must, in their common acceptation, imply a want of credit or responsibility. It seems to me that the words published concerning the plaintiffs by the defendant, charged to be libelous, do not necessarily imply a want of credit or pecuniary responsibility. (3 Wend., 295; 7 Cow., 654.) If they are not plainly susceptible of an entirely innocent meaning, they certainly are not clearly susceptible of an injurious interpretation. At most, they are of doubtful signification. The defendant’s firm may have held on to the plaintiffs’ note a few days for their accommodation, and not because they were unable to meet the paper at maturity ; and this may have been the sense in which they used the words charged as libelous. This is certainly one interpretation of which the words are susceptible. Whenever words are of doubtful signification, and susceptible of two interpretations, the sense in which they were used must be left to the jury. (3 Cow., 231; 6 id., 76; 2 id., 479; 4 Wend., 320.) The judge who tried the cause took this question from the jury, and charged them as a question of law that the postscript to the letter, containing the words in question, if false, was libelous. In this I think he erred.

I think, also, that the defendant proved a justification. The judge in his charge, and the counsel for the plaintiffs in his points, regard as the real point of the libel that it substantially charges that the plaintiffs did not pay their note until several days after it became due; and they both treat the question of justification as depending upon the determination of the question whether the receipt of the check on the nineteenth of April was, in law, a payment of the note ; in other words, whether the charge that the note was not paid on the nineteenth April was true or false. The fact is undisputed that the only payment of the note was by the plaintiffs’ check upon the defendant’s bank of $100, when the plaintiffs’ deposit therein was only $6.08. If this was in law a payment of the note, then undoubtedly the charge was false. But the check, in my judgment, cannot be regarded as payment. (3 Kern., 167, 562.) It was not a payment in law, even if the plaintiffs were allowed by the defendant’s firm to overdraw their account. The point of the supposed libel is a charge that the plaintiffs did not, in fact, pay their note on the nineteenth of April, and the evidence shows that this charge was true. The charge being true, the defendant established a justification of the alleged libel, and the evidence which established the truth of the libel being uncontradicted, the judge should have nonsuited the plaintiffs.

The judgment must be reversed and a new trial ordered.

All the judges agreed with Seldeh, J., that the relation existing between the defendant and the owners of the plaintiffs’ note rendered his communication a privileged one, and required proof of actual malice to sustain the action. All of them, except Seldex, J., agreed with Paige, J., that the words published have not necessarily an injurious meaning, and that their interpretation should have been left to the jury. The court did not pass upon the point last discussed in the opinion of Paige, J.

Judgment reversed and new trial ordered.  