Sullivan v. Strathan-Hutton-Evans Commission Co.

• Decision Date: 14 November 1899
• Parties: Sullivan, Appellant, v. Strathan-Hutton-Evans Commission Company
• Court: Missouri Supreme Court

53 S.W. 912

152 Mo. 268

Sullivan, Appellant, v. Strathan-Hutton-Evans Commission Company

Supreme Court of Missouri, First Division

November 14, 1899

Appeal from the St. Louis City Circuit Court. -- Hon. Daniel D Fisher, Judge.

Reversed and remanded.

Lubke & Muench and Charles W. Ogden for appellant.

(1) While a portion of the letter of July 3, 1895, written by the defendant to J. M. Chittim, referred to a business transaction in which they had a common interest, still the court erred in holding that the portion of that letter which is made the basis of this action is privileged. (a) In making a communication which is only privileged by reason of being made to a person interested in the subject-matter thereof the writer must be careful not to branch out into extraneous matter with which he is not concerned. The privilege only extends to that portion of the communication in respect to which the parties have a common interest or duty. Newell on Defamation, Slander and Libel, p. 532; Odgers on Slander and Libel, 245; Callahan v. Ingram, 122 Mo. 356; Arnold v. Sayings Co.,. 76 Mo.App. 180. (b) He must also be careful to avoid the use of exaggerated expressions for the privilege may be lost by the use of violent language when it is clearly uncalled for. Newell on D., S. and L., p. 532. (c) Any one in the transaction of business with another has the right to use language, bona fide, which is relevant to that business, and which a due regard to that business makes necessary, even if it should directly or by its consequences be injurious or painful to another; and this is the principle upon which privileged communications rest; but defamatory comments upon the motives and conduct of the party with whom he is dealing does not fall within this rule. Tuson v. Evans, 12 A. and E. 733. (d) A communication made by a person is privileged which a due regard to his own interests renders necessary. He is entitled to protect himself. In such cases, however, it must appear that he was compelled to employ the words complained of. If he could have done all that his duty or interest demanded without libeling or slandering the plaintiff, the words are not privileged. It is very seldom necessary, in self-defense, to impute evil motives to others, or to charge your adversary with dishonesty or fraud. Newell on D., S. and L. 509. (2) The court erred in instructing the jury, at the request of the defendant, that there was no proof of express malice. Newell on D., S. and L., 315, 324, 331, 340, 341 and 349. (3) The court erred in refusing to submit the cause to the jury, sworn to try all the issues therein. Fowls v. Bowen, 30 N.Y. 20; Lathrop v. Hyde, 25 Wend. 148; Newell on D., S. and L. 392; Constitution, art. II, sec. 14.

J. M. Hamilton and D. P. Dyer for respondent.

(1) The letter was privileged. Newell on Slander and Libel, pp. 388, 389, 391, 478 and 523; Behee v. Railroad, 71 Tex. 428; Railroad v. Richmond, 73 Tex. 576. (2) It was the province of the court to decide whether the communication was privileged. 13 Ency. of Plead. and Prac., p. 107; Sunderlin v. Bradstreet Co., 46 N.Y. 191; Locke v. Bradstreet Co., 22 F. 773; Mitchell v. Bradstreet Co., 18 F. 214; Press Co. v. Stewart, 119 Pa. St. 603; Hull v. Lyon, 27 Mo. 570. (3) The evidence fails to show any malice upon the part of Evans (the writer of the letter) that can be charged against the defendant corporation. Southern Express Co. v. Fitzner, 59 Miss. 581; Railroad v. Richmond, 73 Tex. 575; Odgers on L. and S., 359.

OPINION

MARSHALL, J.

Plaintiff is the senior member of the firm of D. Sullivan & Co., which company is engaged in the banking business at San Antonio Texas. Defendant is a business corporation, organized under the laws of Missouri, and A. D. Evans is its secretary. J. M. Chittim is a large cattle dealer in Texas and held ten thousand dollars of the stock of the defendant company. Prior to the 24th of June, 1895, the defendant had loaned Chittim $ 50,000, which was evidenced by his note to it, secured by a mortgage on 4,150 head of cattle, of which 2,500 were in the Thornton pasture, in Bee county, Texas, and 1,600 in other pastures. The $ 50,000 secured note was dated October 18th, 1894, and matured about April 21st, 1895. About the first of April, 1895, Chittim paid defendant $ 10,000 on account, and executed renewal notes (the record does not show how many) for $ 40,000 which matured at different dates between the 13th and 28th of June, 1898. Chittim paid $ 11,000 of these renewal notes before June 24th, 1895. Some time prior to June 24th, 1895, the defendant notified Chittim that he must meet his notes at maturity, as it was in need of funds. To enable himself to do so, Chittim applied to D. Sullivan & Co., for a loan of $ 35,000, to be secured by his mortgage and notes held by defendant, and on the 24th of June, 1895, Sullivan & Co. made the loan, and on the same day Sullivan & Co. wrote to defendant that Chittim "requests us to ask you to send releases for his cattle in Bee county to us, and we will submit them to Mr. Chittim, and if everything proper we have instructions to remit you amount. He also says the amount is about $ 25,000. Mr. Chittim also requests you to send us his stock he has in your company by express." On the 26th of June, 1895, defendant replied to Sullivan & Co.: "We have your letter of 24th inst., and have sent the same to our Kansas City office, as they hold the Chittim paper, amounting to about $ 25,000. You will hear from that office in due course of mail. Agreeable to your request we send you, Pacific Express to-night, J. M. Chittim's stock in our company." On the 28th of June, 1895, defendant wired Chittim: "Have Sullivan wire his St. Louis bank to pay us twenty-nine thousand dollars on receipt of mortgage released to Sullivan & Co., covering forty-one hundred fifty cattle in Thornton pasture. This will make your individual account about even at this office, and leave you owing Kansas City five thousand dollars, maturing July 17th, which we will extend for you. Answer." On the 29th of June, 1895, Sullivan wired defendant: "We wrote Boatmen's Bank to-day to pay you $ 29,000, on delivery to them of proper release of Chittim cattle." On the same day Sullivan wrote the Boatmen's Bank of St. Louis: "The Strahorn-Hutton-Evans Com. Co., National Stock Yards, Illinois, will present to you mortgage and releases covering 4,156 head of cattle of J. M. Chittim, in Thornton pasture, Bee county, Texas, and upon delivery to you of mortgage, releases and notes of J. M. Chittim, covering said mortgage, you will please pay them $ 29,000 and charge our account with same. Send us all papers by express at the value of $ 10." On the same day Chittim wrote defendant: "Just in receipt of your letter and statement. I do not fully understand. I owed individually $ 50,000 at St. Louis, and $ 25,000 K. C. I placed $ 25,000 cash your office and $ 5,000 cash K. C., and total of $ 30,000, and as I have never got all sale of the Chittim and Lasater cattle do not know what they amount to. I wish to have a full statement, as I am so thickheaded unless everything is very plain I can not understand it. I wish you would please itemize each transaction. I see $ 50.00 one time exchange and int. and the total acc't shows $ 36,868.58. Please let me have a full statement and what amount you placed at K. C., and total amount you received from Chittim and Lasater cattle. You speak of open acc't. Did I overdraw my acc't? If so, when and how much? Hoping you will not find it too much to get the acc't so a leather-head can understand it. P. S. Sullivan wired $ 29,000 on release of mortgage St. Louis, to-day. Hoping it has all been released, satisfactorily, for I am paying him interest, and meant to stop interest at that end at once." On the 29th of June, Evans, defendant's secretary, applied to the Boatmen's Bank, and learning that Sullivan's letter of the same date, from San Antonio, had not been received by the bank -- which of course it had not been, as it was only mailed at San Antonio that day -- telegraphed Sullivan: "Your letter to Boatmen's Bank not received. Instruct them fully by mail at once." Evans called, later, at the bank and learned that Sullivan's letter had been received, but was not fully understood, so the bank would not pay the money without further directions. Thereupon, on the 1st of July, 1895, defendant telegraphed Chittim: "Sullivan's instructions to their bank are so indefinite that they can not pay us. Have Sullivan instruct them immediately and you wire us what to release to bank. Answer quickly." On the 1st of July 1895, Sullivan telegraphed defendant: "Present papers to Boatmen's Bank again. Instructions reached them by this time. Indorse Chittim's notes to us without recourse." On the same day defendant telegraphed Chittim: "Sullivan wants us to indorse your notes without recourse. We think your notes should be canceled before Sullivan gets them." Chittim telegraphed defendant, on the same day: "Sullivan wired bank to accept release of twenty-five hundred head of cattle in Thornton pasture. Deliver to bank, mortgage, release and notes covering them." On the 2d of July the Boatmen's Bank telegraphed Sullivan: "Strahorn-Hutton-Evans Co. offer release for twenty-five hundred with surrender of mortgage. Shall we accept? Please also state what amount of notes we are to get. They offer $ 30,000 canceled. Decline to indorse without recourse and deliver uncanceled." On the 2d July, 1895, Sullivan telegraphed Boatmen's Bank: "Observe instructions our letter 29th and telegram 30th regarding payment of Strahorn-Hutton-Evans Com. Co. with exception that mortgage release and notes of J.M.Chittim shall cover twenty-five hundred head of cattle in Thornton pasture instead...