Wallace v. The Homestead Co.

• Decision Date: 31 May 1902
• Citation: 90 N.W. 835,117 Iowa 348
• Parties: HENRY WALLACE, Appellee, v. THE HOMESTEAD COMPANY AND JAMES M. PIERCE, Appellant
• Court: Iowa Supreme Court

90 N.W. 835

117 Iowa 348

HENRY WALLACE, Appellee, v. THE HOMESTEAD COMPANY AND JAMES M. PIERCE, Appellant

Supreme Court of Iowa, Des Moines

May 31, 1902

Appeal from Polk District Court.--HON. S. F. PROUTY, Judge.

ACTION for libel. Verdict and judgment for plaintiff, and defendants appeal.

Affirmed.

N. T Guernsey for appellants.

Carr & Parker and Cummins, Hewitt & Wright for appellee.

OPINION

DEEMER, J.

The petition, which is in two counts, is based upon alleged libelous publications printed in an agricultural paper known as the "Homestead" in its issue of October 8, 1897 and a second publication of practically the same matter in an issue of February 18, 1898. The first publication reads as follows: "The task of watching the test on behalf of the swine-growing interests of the West and vouching for the results is one to which the strictest impartiality should be summoned. It is therefore much to be regretted, in view of the importance of the subject to those interests, that it should be delegated to a gentleman who in a previous 'impartial investigation' had become noted as a bribe taker. Within very recent memory he undertook an impartial investigation of an important question pretending that he did not know where it would lead him, when he in fact received more than $ 1,000 in cash for reaching a conclusion at which he had privately agreed from the outset he would arrive. In the present investigation his name appears in the daily press of Des Moines for all the free advertising possible, and he at the same time pretends to a judicial attitude that will serve to add to the commercial value of his personal indorsement should he finally decide it to be safe to give one. Such personal indorsement, however, will be wholly worthless; for one who undertakes an alleged impartial investigation, and at the same time accepts a bribe for reaching a prearranged conclusion in it, cannot repeat the deception every year. The farmer may have a short memory, but it is not short enough for that. Our suggestions to Western swine growers, therefore, is that they pay no attention to this piece of hog cholera cure exploitation regarding a remedy, which, so far as the results attained show, is hardly up to those reached by a dozen or more well-known remedies for the same purpose." The defendant pleaded a settlement, justification, privilege, and certain matters in mitigation which will be hereinafter referred to. On the issues as they were finally formed the case was tried to a jury, resulting in a verdict and judgment for plaintiff. Appellants rely for a reversal on certain rulings of the trial court with reference to the issue of settlement, to the defendant's plea in mitigation, to motions to strike the plea in justification, and to a counterclaim pleaded by defendants. These matters will be disposed of in the order stated, and first the matter of settlement.

I. It appears that prior to the first publication complained of, plaintiff, defendant James M. Pierce, and one Stewart, who were the owners of the Homestead and other properties, had had difficulties regarding the management of these properties, and were involved in a great deal of litigation. Some of these cases reached this court. See 101 Iowa 313. At the time the first libel was published there were 15 or more suits pending, in which these parties, or some of them, were interested, either as plaintiffs or defendants. On the day of the publication these parties entered into a preliminary agreement of settlement and compromise, which was fully consummated on November 10, 1897, after an additional agreement had been entered into on October 29th of the same year. Defendants contend that these agreements and settlements fully discharged and released them from all liability on account of the alleged libel set forth in the first count of the petition. They rely upon the following excerpts from said agreements, which are too long to be set out in extenso:

"Basis for the proposed agreement between Henry Wallace on the one part and James M. Pierce and Samuel F. Stewart on the other part for the sale by said Wallace to said Pierce and Stewart of the entire interest of said Wallace in the Homestead Company and the Pierce-Wallace Publishing Company and the corporations connected therewith, and the undivided half of the real estate owned jointly by the said Pierce and Wallace and for the settlement of all matters of controversy, whether suit has been brought on same or not, which have in any wise, directly or indirectly, grown out of or been caused by the differences between said Wallace and the Homestead Co., the Pierce-Wallace Publishing Co., and the officers and stockholders of said companies. * * * Fourth. All claims of every kind and character whatsoever, whether heretofore asserted by suit or otherwise, held by said Wallace or the Wallace Publishing Company against the said Pierce, Stewart, Homestead Company, Pierce-Wallace Publishing Co., Wisconsin Farmer Company, Indicator Publishing Company, or either of them, or against any officer or stockholder in said companies, or either of them, and all other claims, if any, of the said Wallace growing out of the differences above referred to shall be satisfied, released, and discharged by said Wallace; and said parties shall each of them release and satisfy all claims held by them or either of them against said Wallace, so that the settlement herein contemplated shall operate to compromise and forever set at rest all matters of difference at present existing between said parties. Said settlement shall be evidenced by the exchange of proper written instruments duly executed by the respective parties." "Sixth. It is the purpose of this agreement to consummate the purchase by said Pierce and Stewart of the entire interest of said Wallace in the Homestead Company and allied properties, as well as in the real estate above described, and to compromise all controversies which have in any way grown out of the differences between the said parties, Pierce, Wallace, and Stewart as to the affairs of the Homestead Company and allied properties, and all such controversies shall be deemed to be included in and settled by this contract, whether herein specifically mentioned or not, so as to fully adjust all outstanding matters which have arisen out of said controversies." On the other side it is contended that these stipulations and agreements had no reference whatever to the alleged libel; that they related only to business differences which then existed between the parties, and that the purpose and intent of the agreement was to reach and adjust these differences; and plaintiff relies on substantially the same provisions, claiming that they distinctly show that the compromise, was of controversies which in any manner grew out of the differences between Pierce, Wallace, and Stewart as to the affairs of the Homestead Company and allied properties, and nothing else, and this further provision of these agreements: "Whereas, James M. Pierce, of Des Moines, Iowa and Samuel F. Stewart, of Evantson, Ills., are negotiating with Henry Wallace, of Des Moines, Iowa for the purchase of certain property, and for the adjustment and settlement of certain differences between themselves and others, and for the settlement of a number of pending suits; and whereas, the parties have completed certain preliminary negotiations with reference to the said matters, by which they have formulated a statement containing a description of the property which is made the subject of said negotiations, and setting out the controversies which it is proposed to settle and compromise, and fixing the manner in which the said transaction is to be completed in the event that the parties agree upon the consideration to be paid by the said Pierce and Stewart to the said Wallace: Now," etc. Looking to the purpose of the agreement as expressed in the instruments themselves, and applying the generally accepted canons of construction thereto, we think it fairly appears that there was no thought of the parties that they were making settlement of the alleged libel. These rules of construction may be stated as follows: "One of the rules of interpretation most frequently referred to is to the effect that the intention must be determined by a consideration of the whole instrument, rather than by any clause; the theory being that the parties presumably had the same purpose and object in view in all parts of the instrument; and, consequently, if some of the stipulations are more obscure than others, or one part is seemingly inconsistent with another, the main purpose and object as collected from the whole instrument may be so clear and distinct as to throw light upon some obscure or inconsistent parts." Again: "This principle receives an important application in the rule of ejusdem generis, according to which general words following words of a more particular character are regarded as limited in their meaning by the former. This rule is, however, as are practically all the rules of construction, subordinate to the requirement that the intent of the parties is to be chiefly sought, and will, of course, not apply if the intent appears to be otherwise. General words preceding other words that are particular in meaning are likewise on the same principle limited by the particular words, unless the intention appears to be otherwise." 17 Am. & Eng. Enc. Law (2d Ed.)pp. 4, 6, and cases cited. There was, as it seems to us, no thought in the minds of the parties that they were settling any claims for libel. As the article was printed the same day on which the preliminary agreement was made, it is hardly to be believed that the parties had it in mind to settle any claims for damages for libel by the use...