Mower-Hobart Co. v. R.G. Dun & Co.

Decision Date23 May 1904
Docket Number1,782.
PartiesMOWER-HOBART CO. v. R. G. DUN & CO.
CourtU.S. District Court — Northern District of Georgia

Hoke Smith and H. C. Peeples, for plaintiff.

Walter R. Brown and Ellis, Wimbish & Ellis, for defendant.

NEWMAN District Judge.

This suit is brought by the Mower-Hobart Company, a corporation doing business in Atlanta, in this district, against R. G Dun & Co., a mercantile agency. The declaration alleges that R. G. Dun & Co. conduct what is known as a mercantile agency with offices located at various points throughout the United States, and with an office at Atlanta, Ga., in said county of Fulton; that part of the business conducted by said R. G. Dun & Co. is to distribute for a consideration, to merchants dealers, and others, information regarding the standing of persons engaged in trade, their financial worth, credit character, trustworthiness, and the conduct and condition of their business; that such information is secured and given out by representatives stationed at commercial centers, who secure the same, and distribute it directly or through agents of said firm to its patrons in the form of written or printed slips called 'reports'; that said partnership is known as Dun's Commercial Agency, it numbers among its patrons a large proportion of the leading wholesale mercantile establishments of America, and its reports are accepted, and largely influential, and to a great degree regulate and control, commercial transactions in the United States, especially as regards the financial credit and responsibility of merchants. It is then alleged that on or about July 11, 1902, the defendant gave out to its subscribers a written report upon plaintiff, as follows:

'Mower-Hobart Co. Office supplies etc. Atlanta, Ga., Fulton.

No. 1 Broad St.

'July 11, 1902.

'At present this company is located at 71 Peachtree St. That place has been leased and they have rented store house at above address, where they intend moving August 1st.

'When requested for statement Mower claimed that they had not inventoried since statement rendered during March to which he referred. Stated verbally that there had been practically no change, and affairs were in about the same shape as indicated in their last showing.

'The statement referred to was submitted under date of March 24th last, and showed total assets of $18,211.54, with debts of $7,491.09, indicating a surplus or worth of the company of $10,719.55; result of investigation made at the time resulted in conceding the company a responsibility of something like $6,000.

'Just at present the expenses of the company are a little heavier than usual, inasmuch as they will have to pay store rent on two places until Sept. They have keen competition to contend with, and while they appear to be aggressive and attentive, their trade is hardly though to average up as much as formerly. They carry a nice stock of merchandise, but some of this is consigned. At bank the company is very well known where they have been granted some accommodations, but settlements through this source said to have been slow and altogether the account is not classed as an entirely desirable one. However confidence seems to be manifested in Mower's ability, and a willingness is expressed to indulge him to a reasonable extent. No complaints from the trade at large have come to notice, and in an eastern market one firm states that dealings, including those with predecessors covers a period of about ten years, have with them goods on consignment aggregating $3,000 to $4,000, and say that the account on direct sales average about $300 on usual terms, remittances being made promptly. No extensions asked. Are owing now about $300 not due. One concern in the local market is found who have handled the account in a small way, and say dealings were satisfactory, though report no recent transactions. The location which they will occupy after August 1st is hardly considered as much desirable as their present quarters, and as a basis for credit the responsibility of the company is not placed at exceeding $5,000 to $6,000 and quoted in fair credit standing.

'7-11-02.

Rate G. 3. to G. 3 1/2.'

This report is taken up in the declaration by paragraphs, and is charged as having been false and malicious. The present hearing is on a demurrer to the declaration. The demurrer and argument of counsel thereon raises the question as to how far the above report is libelous. In my judgment, the only part of the report made by the defendant as to the plaintiff which could in any way be classed as libelous, and intended to injure it, if untrue, is that language which...

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