Whittemore v. Weiss

• Decision Date: 05 November 1873
• Citation: 28 Mich. 366
• Court: Michigan Supreme Court
• Parties: John P. Weiss v. J. Henry Whittemore and another

28 Mich. 366

John P. Weiss v. J. Henry Whittemore and another

Supreme Court of Michigan

November 5, 1873

Heard November 5, 1873 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Wayne Circuit.

Action for damages for libel. Plaintiff brings error. Reversed.

The declaration was as follows:

"For that, whereas, the plaintiff herein was for a long space of time, to wit: fro the year 1866 to the year 1869, the general agent for the State of Michigan for the sale of the Knabe piano, and also for the sale of the Steinway piano, which latter is sometimes called the 'King,' and is also sometimes called the 'King of Pianos,' and had the sole and exclusive right of the sale of both of said pianos for the city of Detroit, in the county and State aforesaid, for the space of time aforesaid; that in the year 1869, aforesaid, the plaintiff herein ceased to act as agent for the sale of the Knabe piano, but continued to act as agent for the sale of the Steinway piano aforesaid, and has ever since so continued to act as agent for the sale of said Steinway piano, and at the time of committing of the grievances by the said defendants hereinafter mentioned, was and now is acting as the agent for the sale of said Steinway pianos, and had carried on the said business as agent for the Steinway piano aforesaid with great credit and reputation, and had in the way of his aforesaid trade and business, as agent for the sale of the Steinway piano aforesaid, acquired great gains and profits, and was, up to the time of the commission of the grievances by the said defendants herein after mentioned, daily and honestly acquiring great gains and profits to himself as agent of the said Steinway piano in the sale thereof, to wit: at Detroit aforesaid; that in the year 1869, aforesaid, when the plaintiff herein ceased to act as the agent for the sale of the Knabe piano, as aforesaid, the said defendants became the agents for said Knabe piano, and ever since the said year 1869 the defendants have been, and were at the time of committing of the grievances by the said defendants as hereinafter set forth, the agents for the sale of the said Knabe piano in the city of Detroit, in the county and State aforesaid, and well knowing the premises, but contriving and falsely and fraudulently intending to injure the said plaintiff in his said trade and business as agent for the said Steinway piano, which is sometimes called the 'King,' and is also sometimes called the 'King of Pianos,' and to wrongfully cause it to be believed that the said plaintiff regarded the Knabe piano, for which the said plaintiff had been agent as aforesaid, and for which the said defendants were then and are now the agents, as superior to the Steinway piano aforesaid, for which the said plaintiff was then and is now the agent, and thereby to injure the said plaintiff in his said business, and to promote and increase the sale of the said Knabe piano, and thereby increase the gains and profits of the defendants, and to retard and decrease the sale of the Steinway piano aforesaid, and thereby injure the plaintiff in his said trade and business by diminishing the gains and profits of said business, and to vex, harass, and oppress and wholly ruin the plaintiff in his said business, heretofore, to wit: on the tenth day of March, 1873, at Detroit, in the county and State aforesaid, wrongfully, maliciously and injuriously composed and published, and caused to be composed and published, in the Detroit Free Press, a daily newspaper which has a large circulation in the city of Detroit aforesaid, and throughout the State of Michigan, to wit: a circulation of fifteen thousand copies daily, and which is printed and published in the city of Detroit aforesaid, a certain false, malicious and injurious libel of and concerning the said plaintiff in respect to his said business, in the false, malicious and libelous words following:

"'Before we (meaning the defendants herein) had the honor of representing this magnificent instrument (meaning the Knabe piano), the former agent (meaning the plaintiff) had an opportunity to test them (meaning them, the Knabe pianos,) with what he (meaning the plaintiff) calls the King of Pianos (meaning the Steinway pianos), and in every case the Knabe (meaning the Knabe piano) was (referring to the time when the plaintiff was the agent for both the Steinway piano and the Knabe piano as aforesaid) chosen as the best, backed up by the judgment of the agent (meaning the plaintiff), in whose regard the Knabe (meaning the Knabe piano) stood pre-eminent, and he (meaning the plaintiff) advised his (meaning the said plaintiff's) customers to purchase the Knabe (meaning the Knabe piano) as being superior in every respect. We (meaning the defendants) cheerfully refer to the parties who were guided by this agent's (meaning the said plaintiff's) wisdom and purchased the Knabe (meaning the Knabe piano) in preference to the so called King (meaning the Steinway piano).

"'The Knabe (meaning the Knabe piano) has proven to be, after ten years' wear, magnificent in every respect, and superior to all other pianos, just as their agent (meaning the plaintiff) represented while agent for both pianos (meaning the Steinway piano and Knabe piano). We (meaning the defendants) respectfully endorse the recommend given by the old agent (meaning the plaintiff) for the great excellence of the Knabe piano in the past, and we (meaning the defendants) are proud to say that to-day the Knabe piano stands without a rival.'

"By means of which said premises the said plaintiff hath been and is greatly injured in his said trade and business, and is suspected to have made the representations in regard to said Knabe piano falsely and maliciously set forth in said libelous publication, and has been greatly vexed and harassed and injured thereby in his said business, and has lost and been deprived of divers great gains and profits in his said business, which would have arisen and accrued to him had not the said defendants composed and published, and caused to be composed and published as aforesaid, the false, malicious and injurious libel aforesaid, and hath been and is otherwise much injured and damnified therein, to wit: at Detroit, in the county and State aforesaid." [Here follows a second count similar to the first, except that it alleges the publication of the same article in The Detroit Tribune.]

"To the damage of the said plaintiff of ten thousand dollars, and therefore he brings suit, etc."

The defendants interposed a demurrer to this declaration, assigning the following causes of demurrer:

"First. That the matter set out in each of the counts of said declaration and charge, and averred to have been made and published by the defendants, is not libelous, and is not actionable as charged in said declaration, or in either of the counts thereof.

"Second. That the said declaration nowhere avers that the Steinway piano was not inferior to the Knabe, nor does it allege that the defendants, by publishing that said plaintiff had recommended the Knabe piano as superior to the Steinway, published of and concerning the plaintiff that he had untruly or dishonestly recommended an inferior piano as superior to the one which was in fact the superior piano.

"Third. That the said declaration, and each of the counts thereof, claims and sets out damages greater than the plaintiff could suffer, and which could only be sued for by the manufacturer of the piano, and not by the agent of the manufacturer.

"Fourth. That the said declaration, in each of the counts thereof, alleges two distinct and separate libels in such manner as to constitute duplicity in pleading.

"Fifth. That the declaration does not aver that plaintiff was the only person who had been former agent for the Knabe pianos before the defendants became such.

"And also for that the said declaration is in other respects uncertain, informal and insufficient."

This demurrer was sustained, and judgment rendered for the defendants. The plaintiff brought error.

Judgment reversed, with costs.

John W. McGrath and C. I. Walker, for plaintiff in error.

D. B. & H. M. Duffield, for defendants in error.

OPINION

Christiancy, J.

This was an action brought by the plaintiff in error against the defendants in error in the Wayne circuit court for a libel.

The defendants demurred. The court sustained the demurrer and rendered final judgment with costs against the plaintiff, which he brings to this Court by writ of error.

The declaration is based upon the publication by the defendants, in The Detroit Free Press and The Detroit Tribune, of an article claimed to be false and libelous, and to have been injurious to the plaintiff in his trade or business, as an agent for the sale of Steinway pianos, so called.

As a copy of the declaration will accompany the report, it will be sufficient to refer to it here for the points raised by the demurrer.

The first ground of objection relied upon in support of the demurrer is, that the declaration does not show the application to the plaintiff of the language published and claimed to be libelous; in other words, that it does not show with sufficient certainty that it was published "of and concerning the plaintiff" with reference to his trade and business; that as the publication did not mention the plaintiff by name, but only refers to the agent for the sale of the Steinway pianos, who had also been previously agent for the sale of the Knabe pianos, the mere innuendo "meaning the plaintiff," etc., whose office is to explain and not to enlarge the meaning of the precedent allegations, is not sufficient, and...