Knott v. Burwell

• Decision Date: 27 May 1887
• Citation: 96 N.C. 272,2 S.E. 588
• Court: North Carolina Supreme Court
• Parties: KNOTT v. BURWELL, Jr.

96 N.C. 272

2 S.E. 588

KNOTT

v.BURWELL, Jr.

Supreme Court of North Carolina.

May 27, 1887.

Appeal from superior court, Granville county.

The opinion sufficiently states the facts.

D. G. Fowle and Batchelor & Devereux, for appellant.

E. C. Smith and R. W. Winston, for appellee.

SMITH, C. J.

The action is for libel, and the complaint, in separate counts, sets out the alleged libelous matter published in a newspaper known as the “Gold Leaf,” in its respective issues of February 21 and March 6, 1884. The answer denies the identity of the matter contained in the newspaper with that set out in the complaint and the imputed malice, and proceeds to explain the circumstances that preceded and led to the publications, as a means of self-vindication, and to detail other matters in exculpation and excuse of the act. It also sets up a counter-claim for damages on account of slanderous utterances of the plaintiff against the defendant in connection with the personal differences which had sprung up between them in business operations, and to which those imputed to the defendant have reference. To the counter-claim the plaintiff interposes a demurrer based upon the ground that it contains a distinct and independent cause of action in court, unwarranted by the Code, § 244, par. 1, and this being sustained by the court, and the counter-claim disallowed, the defendant appeals, at the same time moving the court to suspend further proceedings in the action until the appeal could be heard and decided. This was also refused, and the trial ordered to go on. To these rulings the defendant's first exception is taken, and it is, in our opinion, without support in law. The proposed appeal was premature, and, the exception being noted upon the record, the ruling would come up for review after the final hearing upon an appeal then taken, and this opportunity is now afforded the defendant.

We pass over so much of the controversy as relates to the form of the issues, all of which are found adversely to the defendant, to consider the exceptions to the refusal of the court to admit evidence offered in mitigation of damages under the last issue, since this, in our opinion, entitles the defendant to a new trial. To the proper understanding of the pertinence and force of the excluded proofs, it is necessary to set out the libelous publications as stated in the complaint:

“ To the Public: On the thirteenth inst., Mr. J. W. Brown sold with us thirteen lots of tobacco. With the price of five of these lots he was satisfied. The other six lots he took in and carried to Oxford, where, on the fourteenth inst., in the warehouse of F. R. Knott & Co., the same tobacco was made to weigh, or reported as weighing, sixty-four pounds more than it weighed at our house. It has now come to my knowledge that Mr. F. R. Knott, since the above-mentioned occurrence, has been busying himself trying to slander our business, and our personal integrity, charging us with false weights, and giving the above as witness at once of our false dealing and his own superior honesty. As soon as I heard of the matter I sent my partner and brother, Mr. J. S. Burwell, to him, to call his attention to the injury and injustice done us, and to ask for such reparations as we were entitled to. Thereupon, in his (Mr. J. S. Burwell's) presence, he agreed to sign a written statement, in which he acknowledged the wrong, and took the blame on his own warehouse, alleging in excuse that from some unknown cause his scales or trucks were out of order on the 14th, which was not detected by him till after the sale. Having said all that, and allowed it to be written, he then refused to sign it, or to do anything else, and so his falsehood and slander still circulates on his authority. On such authority I can hardly think that any respectable man's character or business can be injured. It is the first time that our weights have been questioned, and I here pronounce the charge knowingly, intentionally, and corruptly false. Our scales are correct, and we render true weights. The false weighing was done in Messrs. Knott & Co.'s warehouse, and done for the purpose of dishonesty, and knowingly injuring our warehouse, and benefiting himself thereby.

“Now, as to Mr. F. R. Knott. By his course since that occasion he has shown himself insensible to the obligation of truth or honor, and unworthy of notice from any gentleman. I refer, by permission, to Messrs. John Meadows and I. N. Burwell as to the incorrectness of his weights of tobacco bought by them on the same day. The gentlemen say that their tobacco was made to weigh about eight pounds to the pile too much on that day, which accounts for the gain of sixty-four pounds in the eight lots sold by Mr. Brown. I have further to say that this same F. R. Knott has been charged to his face in the city of Richmond with stealing, without resenting same, [meaning and intending thereby to charge the plaintiff with the crime of larceny.] We know that we have to make our living by fair dealing and hard work, and have no fear that an honest man will question the one or envy the results of the other. We give true weights, realize the highest prices current, and pay cash for all we sell. And so, conscious of our integrity, we are, and I, H. H. Burwell, Jr., in particular, am at all times to be found at the Carolina Warehouse, in Henderson, ready to see and satisfy all who come, and to give our friends, the farmers, a cordial welcome, and the best the tobacco market affords.

“H. H. BURWELL, Jr.,

“Of Burwell Bros. & Co., Carolina Warehouse, Henderson, N. C.

“February 20, 1884.”

And, for a second cause of action, plaintiff complains and alleges “(1) that on the sixth day of March, A. D. 1884, the said defendant, still further contriving, and wickedly and maliciously intending, to injure the plaintiff as aforesaid, and to bring him into public scandal, infamy, and disgrace, and to cause it to be suspected and believed that the plaintiff had been guilty of the crime of larceny, falsely, wickedly, and maliciously did print and publish, and cause and procure to be printed and published, in the Gold Leaf, a newspaper printed and published in the town of Henderson, as aforesaid, of and concerning the plaintiff, a certain other false, malicious, scandalous, and defamatory libel, in one...