Whittemore v. Weiss

• Decision Date: 05 April 1876
• Citation: 33 Mich. 348
• Court: Michigan Supreme Court
• Parties: J. Henry Whittemore and another v. John P. Weiss

33 Mich. 348

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

Supreme Court of Michigan

April 5, 1876

Submitted on Briefs January 7, 1876

Error to Wayne Circuit.

This was an action for libel brought by Weiss against Whittemore & Stephens. The grievance complained of was the publication, over defendants' signature, on or about March 10, 1873, in the Detroit daily newspapers, of the following article:

"KNABE GRAND SQUARE AND UPRIGHT PIANO FORTES.

"These instruments having been before the public for over 30 years have, upon their excellence alone, attained an unpurchased preeminence that pronounces them unrivaled.

"Before we had the honor of representing this magnificent instrument the former agent had a good opportunity to test them with what he calls the king of pianos, and in every case the Knabe was chosen as the best, backed up by the judgment of the agent, in whose regard the Knabe stood preeminent, and he advised his customers to purchase the Knabe as being superior in every respect. We cheerfully refer to those parties who were guided by this agent's wisdom and purchased the Knabe in preference to the so-called 'King.' The Knabe has proven to be, after ten years' wear magnificent in every respect and superior to all other pianos, just as their former agent represented while agent for both pianos.

"We cordially endorse the recommend given by the old agent for the great excellence of the Knabe piano in the past, and we are proud to say that to-day the Knabe piano stands without a rival," etc.

This publication was averred to be false and libelous, and to have been injurious to the plaintiff in his business as an agent for the sale of the Steinway pianos.

It appeared in evidence that at the time of this publication plaintiff had the agency at Detroit and for the state for the sale on commission of the Steinway piano, which was sometimes called the king of pianos; that defendants were then engaged in the sale of the Knabe pianos; that the plaintiff from 1863 to 1869, with his partners, had held the agency for the sale of both pianos, and that no others than plaintiff and his several partners had been at the same time agents for both the Steinway and the Knabe piano. The several points raised and the facts upon which they are based are sufficiently set out in the opinion. The case was once before the court on demurrer, and is reported in 28 Mich. 366. Verdict and judgment having passed for plaintiff, the defendants brought error.

Judgment affirmed, with costs.

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

C. I. Walker, for defendant in error.

OPINION

Cooley, Ch. J.

I. Several of the errors assigned relate to matters regarding which a liberal discretion must be allowed to the judge conducting the trial, or there could never be an end to litigation. Of this class was the ruling of the circuit judge in permitting the plaintiff to show what his sales were for the year 1873. The objection to this was, that the showing covered some time which was previous to the publication complained of. It might have been better, perhaps, if the judge had limited the showing to a period beginning with the publication, but no harm could be done by allowing it to embrace the whole year, unless the parties were precluded from drawing out the facts in detail afterwards, so as to enable the jury to distinguish between the business before and after the publication appeared. It is claimed that this was the fact, because after the plaintiff had testified that the year 1873 was not so good a year for the piano business as 1872, the defendants were not permitted to ask him whether, if the publication had not been made, he would have sold as many pianos in 1873 as in 1872. But this again must be regarded as a discretionary ruling. The plaintiff had shown that 1873 was a bad year for the piano business, and the conclusion that his sales would have fallen off in consequence was one the jury could draw as well as he could. It is not claimed that the court excluded any facts which could properly form the basis for an opinion; and if not, we cannot say there was error in not requiring the plaintiff to express his opinion upon the facts. Neither do we discover any error in the charge on this branch of the case. The jury were instructed in substance that they could award no damages for the falling off in plaintiff's business, unless they were satisfied it was in consequence of the publication complained of.

II. It is objected that the plaintiff was allowed to show that those who sold pianos of a particular make were called in the trade, "agents," though they bought and sold on their own account. The importance of the showing appears from the declaration, in which the plaintiff is described as agent. But there can be no legal objection to such evidence. It is always competent to show that a particular word has acquired a peculiar meaning in a certain business, and to construe it accordingly, when it is made use of in reference to that business.--Coit v. Commercial Ins. Co., 7 Johns. 385; Child v. Sun Mut. Ins. Co., 3 Sandf. 26; Bancroft v. Peters, 4 Mich. 619. Besides, it appears that the plaintiff had exclusive rights within certain territory, and sold one class of the pianos on commission; and we are inclined to the opinion that the court might properly take notice of a general custom to designate persons doing business in that manner as agents. But on the other ground the ruling is clearly sustainable.

III. Complaint is...