Rice v. Williams

• Decision Date: 05 August 1887
• Citation: 32 F. 437
• Parties: RICE v. WILLIAMS.
• Court: U.S. District Court — Eastern District of Wisconsin

32 F. 437

RICE v. WILLIAMS.

United States Circuit Court, E.D. Wisconsin.

August 5, 1887

G. W Hazelton, for plaintiff.

Markham & Noyes, for defendant.

DYER J.

At the conclusion of the plaintiff's testimony on the trial of this case, the court directed a verdict, which, in effect was a dismissal of the suit. The plaintiff has moved for a new trial. The facts developed by the testimony were, in brief, these: The plaintiff testified that he was an 'advertising solicitor,' and that among other advertisements solicited by him were such as specialists furnished for the cure of so-called 'private diseases.' In 1885 he opened correspondence with the defendant, who was a 'specialist,' practicing his calling at Milwaukee, for the sale to him, for a pecuniary consideration, of 60,000 letters which were in the possession of the Voltaic Belt Company, of Marshall, Michigan. That company was engaged in furnishing electric belts suspensories, and other electric appliances for the cure of various ailments and disorders. The letters in question were such as it had received from persons residing in different parts of the country, in response to advertisements of the curative qualities of the instruments and articles in which that company dealt. After considerable correspondence on the subject, the plaintiff agreed to furnish to the defendant the letters in question, and the defendant agreed to pay therefor, or for the use thereof in connection with his business, the sum of $1,200. The letters were shipped to the defendant, and received by him, and he paid to the plaintiff $500 on the purchase. The plaintiff testified that he paid the Voltaic Belt Company $500 for the letters, and, as a part of the transaction, was to furnish to that company other letters procured from 'specialists.' The defendant's purpose in procuring the letters in question was to obtain the names and post-office addresses of the writers, so that he might send to them circulars advertising his remedies for the various diseases which he professed to cure. It was claimed in argument that it was not, and could not have been, one of the objects of the parties engaged in this business, to enable the defendant to learn from the letters the nature of the maladies with which the writers were afflicted, because a perusal of the contents of the letters would be in the last degree dishonorable, and, of course, the parties contemplated only an honorable transaction. The court his, however, of the opinion that parties who would engage in such a traffic as this, would hardly refrain, on a point of honor, from a perusal of the letters, not only to obtain the names and post-office addresses of the writers, but also all the disclosures which the writers make concerning the physical infirmities from which they were suffering. The court has no doubt that this was one of the objects sought in the sale and purchase of the use of these letters, because, obviously, it was quite as important to the defendant to know whether the writers of the letters stood in need of such restoratives to health as he could supply, as to know their names and post-office addresses.

The defendant refused to pay the balance of $700 yet due to the plaintiff on the sale, and this suit was brought to recover from the defendant that sum. The defendant resisted payment, on the ground that the plaintiff represented to him, in making the sale, that the letters had never before been used, or, in the technical language of the profession 'circularized;' that this representation was false, and that the letters were valueless. Enough was disclosed in the testimony to show that the sale of the use of the letters in the manner described, is a breach of 'industry' extensively pursued by certain 'specialists' throughout the country. But it would seem that, in cases where the writers are made the repeated victims of advertising circulars, their better sense at last gets the advantage of their credulity, and they refuse longer to be baited by the remedies which might otherwise tempt them, and so their letters become valueless as articles of merchandise, or for further use. Thus it was, according to the theory of the defense, in the case at bar. The trial, however, did not proceed far enough to fully develop the facts in this regard.

To fitly characterize the contract in suit is to unreservedly condemn it as utterly worthless of judicial countenance. It was contra bonos mores, and it would seem that, on grounds of public policy, the court might well refuse either to aid the plaintiff in enforcing it, or the defendant in recovering damages for the breach of it. Thus to traffic in the letters of third parties, without their knowledge or consent, and to make them articles of merchandise in the manner attempted here, was, to mildly characterize it, grossly disreputable business. It was said on the argument that the letters were not in evidence, and that the court could assume nothing with reference to their contents. But enough was indicated in the correspondence of the parties which preceded the making of the contract, which correspondence was in evidence, to point to the conclusion that the letters which were the subject of bargain and sale, were written by persons who sought medical aid for disorders with which they were afflicted. Counsel for defendant had in court a large number of the letters, and his statements were not controverted that they related to infirmities and maladies of which the writers sought to be cured. The very nature of the contract in suit presupposes such to have been the fact. Ought courts of justice to lend their sanction to such a traffic? Suppose a physician-- trusted and confided in as such in the community-- were so far to forget or abuse the obligations of his profession, as to make the confidential communications of his patients the subject of bargain and sale; would any court listen for a moment to his complaint of non-performance of the contract, and aid him to recover the purchase price? Presumptively, the letters here in question, were confidential,-- at least they were personal as between the writers and the receiver; and though it be true, as was said in argument, that authority is wanting directly applicable to the question here presented, I would not hesitate, on grounds of morality, and upon considerations of common justice, to make an example of this case, by putting upon it the stamp of judicial reprobation.

But there is another ground upon which, applying to the case a principle sanctioned by high authority, the court may, it seems to me, well refuse to lend its aid to give legal effect to this transaction. The writers of these letters retained such a proprietary interest in them, that they could not properly be made the subject of sale without their consent. The receiver of the letters had only a qualified property in them, and legal authority to sell them for a pecuniary consideration could only be maintained upon the theory of an absolute property right. Such a right did not exist.

At an early day in the history of equity jurisprudence, the question arose as to the right of the receiver of letters to cause them to be published without the consent of the writer, and as to the power of a court of equity to restrain such publication. It would be ill-timed and superfluous to review in detail all the cases on the subject, since they have been so thoroughly reviewed and discussed by Justice STORY in the case of Folsom v. Marsh, 2 Story, 100, and by Judge DUER, in the case of Woolsey v. Judd, 4 Duer, 379.

The leading cases in England on the subject are Pope v. Curl, 2 Atk. 342; Thompson v. Stanhope, 2 Amb. 737; Perceval v. Phipps, 2 Ves. & B. 19; and Gee v. Pritchard, 2 Swanst. 402.

In the first-mentioned case, Pope had obtained an...