McDonald v. Green

• Decision Date: 17 May 1900
• Citation: McDonald v. Green, 176 Mass. 113, 57 N.E. 211 (Mass. 1900)
• Parties: McDONALD v. GREEN.
• Court: Supreme Judicial Court of Massachusetts

176 Mass. 113

57 N.E. 211

McDONALD v. GREEN.

Supreme Judicial Court of Massachusetts, Suffolk.

May 17, 1900

COUNSEL

T. F. McDonough, for plaintiff.

Samuel H. Smith and Albert Boyden, for defendant.

OPINION

BARKER, J.

1. The defendant's motion to dismiss the action should have been allowed. The action is in tort, and the substantive wrong charged is that the defendant falsely and maliciously, and without justifiable cause, began to foreclose a mortgage which he held upon the plaintiff's land,--there having been no breach of the terms or conditions of the mortgage,--and published in a newspaper a notice of the foreclosure sale, falsely alleging that the sale was for breach of the condition of the mortgage, and that in consequence of this unlawful act the plaintiff was injured. The alleged maliciously made false statement as to the plaintiff's property was an actionable wrong, if by reason of it the plaintiff sustained special damage. Swan v. Tappan, 5 Cush. 104; Gott v. Pulsifer, 122 Mass 235. We have no doubt that such an action is an action of tort for slander within the meaning of Pub. St. c. 183, § 1. There is no reason for limiting the words there used 'actions of tort * * * for slander either by writing or speaking,' to actions for the writing or speaking of words defamatory of persons only. Our statute divides all personal actions into three classes,--contract, tort, and replevin. Pub. St. c. 167, § 1. When actions for slander or for publishing a libel are treated of in the subsequent provisions of the same chapter, as in sections 79 and 80 those provisions are as applicable to actions of the class commonly known as 'actions for slander of title' as to actions for defamation of persons. The provision of Pub St. c. 183, § 1, forbidding actions of tort for slander to be commenced by trustee process, is in the same title of the statutes with Pub. St. c. 167, and includes...