Klein v. Belle Alkali Company

• Citation: 229 F.2d 658
• Decision Date: 07 February 1956
• Docket Number: No. 7105,7106.,7105
• Parties: Nicholas P. KLEIN, Appellant, v. BELLE ALKALI COMPANY, a corporation, Appellee. GLOBAL COMMERCE CORPORATION, S.A., Appellant, v. BELLE ALKALI COMPANY, a corporation, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

229 F.2d 658 (1956)

Nicholas P. KLEIN, Appellant, v. BELLE ALKALI COMPANY, a corporation, Appellee.

GLOBAL COMMERCE CORPORATION, S.A., Appellant, v. BELLE ALKALI COMPANY, a corporation, Appellee.

Nos. 7105, 7106.

United States Court of Appeals Fourth Circuit.

Argued January 9, 1956.

Decided February 7, 1956.

Nicholas P. Klein, pro se.

Herman D. Rollins, Charleston, W. Va., for appellant, Global Commerce Corp., S. A.

Philip Angel, Charleston, W. Va. (B. J. Pettigrew, Sr., and B. J. Pettigrew, Jr., Charleston, W. Va., on the brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

These are appeals by Global Commerce Corporation, hereafter referred to as Global, and Nicholas P. Klein, its manager, from summary judgments for defendant in two actions for libel which they had instituted against Belle Alkali Company, hereafter referred to as Belle. Global, acting in behalf of Belle, had entered into a contract with a Mexican corporation, Banco Nacional Urbano y de Obras Publicas, S. A., hereafter referred to as Banco, for the sale of chlorine gas in cylinders. When Banco complained to Belle that the cylinders in which the gas was delivered were not new cylinders but cylinders which had been used, Belle replied in a letter stating: "The original deal with Global Commerce Corporation as agents for you was on the basis of used cylinders being furnished" and attached to the letter copy of a letter from Belle to Global stating that the cylinders were not new cylinders. It is the contention of plaintiff appellants that the last mentioned letter referred to a proposition which had been abandoned and they allege in their complaints that the sentence heretofore quoted was libelous in that Belle meant and intended to charge plaintiffs with fraudulent conduct and with having deliberately deceived Banco into accepting and paying for the used equipment as though it were new equipment. The trial judge entered summary judgment for defendant on the ground that the letter was privileged, that the privilege had not been abused and that the innuendos set forth in the complaints improperly extended the meaning of the language alleged to be libelous.

There is no dispute as to the basic facts, which were fully developed at pretrial hearings. Global wrote Belle on April 20 and 21, 1949, requesting quotations on chlorine gas in cylinders. On April 25 Belle replied giving quotations. Global made quotations to Banco on April 27 and on April 30 stated that the offer was for new cylinders. On May 2 and 3 Global wrote Belle that lower prices were being quoted the customer by another company and requested quotations of lowest prices on chlorine gas in new cylinders and including a 10% commission to Global. Belle replied on May 7, 1949 with an offer which would allow commissions only on the chlorine gas and with respect to the cylinders said: "Likewise, the cylinders are not new cylinders as you state in your letter of May 3rd. But they are standard 150 pound chlorine cylinders, and will be tested at the standard 500 pound hydraulic pressure test prior to shipment, and will conform to this government test with regards to temporary expansion and permanent expansion. We are sure the cylinders are of a quality that will be satisfactory to your customer." It was copy of this letter which was sent to Banco with the letter containing the statement complained of as libelous.

On May 19 Global wrote Belle that it was impossible to work upon the basis of a commission on the value of the chlorine only, said nothing in reply to the statement about the cylinders being used cylinders and stated that it was working on the basis of the original quotation. Plaintiffs' contention is that this constituted notice to Belle that it was not offering to Banco cylinders as used cylinders and that Belle in subsequent correspondence acknowledged its responsibility for mistakes with regard to the matter.

Whatever be the interpretation to be placed on the correspondence between the parties, it is perfectly clear that nothing therein contained warrants the allegation that the language in the letter of which complaint is made amounted to a charge of fraud or false pretense. All that was said was that the deal was "on a basis of used cylinders being furnished" with enclosure of a letter calling attention to the fact that the cylinders referred to therein were used cylinders. While contention is made that the letter referring to used cylinders had relation to a proposal that had been abandoned, there is nothing to warrant the conclusion that, even if this be true, Belle was intending to charge Global or Klein with fraud or false pretense or that any one familiar with the correspondence could reasonably ascribe such meaning to the language used. To so construe it, is to attribute a fanciful meaning not warranted either by the facts or by the inducement set forth in the pleadings.

While it is elementary that language relied upon as libelous must be judged in the light of facts known by those to whom it is addressed, it is well settled that its meaning cannot be enlarged or extended by an innuendo in the pleadings. The rule here applicable is thus stated by the Supreme Court of Appeals of West Virginia: "An innuendo may serve for an explanation to point a meaning where there is precedent matter expressed or necessarily understood or known, but never to establish a new charge." Argabright v. Jones, 46 W.Va. 144, 32 S.E. 995. In the opinion in the case cited the rule is quoted from 13 Encyc. of Pleading & Practice 51 as follows: "An innuendo cannot introduce new matter nor...