Willetts v. Scudder

• Decision Date: 06 October 1914
• Citation: 72 Or. 535,144 P. 87
• Parties: WILLETTS v. SCUDDER.
• Court: Oregon Supreme Court

144 P. 87

72 Or. 535

WILLETTS v. SCUDDER.

Supreme Court of Oregon

October 6, 1914

Department 1.

Appeal from Circuit Court, Multnomah County; George N. Davis, Judge.

Action for libel by P. L. Willetts against W. T. Scudder. From a judgment for plaintiff, defendant appeals. Affirmed.

A. B. Ridgway, of Portland (Ridgway & Johnson, of Portland, on the brief), for appellant. B. W. Graham, of Portland (Wm. E. Beckett, of Portland, on the brief), for respondent.

RAMSEY J.

This is an action brought by the plaintiff to recover damages from the defendant for alleged libels published concerning him, by the defendant.

The complaint contains two counts, charging the defendant with the publication of libels, and the libels charged are contained in two letters written by the defendant and addressed to L. S Miller, president of the Adirondack Maple Company, of Lowville, N. Y.

The defendant is the president of the Scudder Syrup Company of Chicago. During a part of 1911, and parts of January and February, 1912, the plaintiff was in the employ of the Scudder Syrup Company, as a traveling salesman in Oregon and the Pacific Northwest. About the 10th of March, 1912, without consulting the Scudder Syrup Company, he ceased working for that company and entered the employment of the Adirondack Maple Company, as a traveling salesman for the latter company. These companies were, to some extent, competitors in the sale of syrup. In November, 1911, the Scudder Syrup Company had an account against Allen & Lewis, of Portland that was in part disputed. The plaintiff was not working for said company at that time, but he was residing in Portland. The defendant, for said company, wrote the plaintiff and asked him to call on Allen & Lewis and adjust said claim for it. The plaintiff called on Allen & Lewis, as directed, and made a settlement with them, and it was found that Allen &amp Lewis, at that time, owed said company $89.12, for which they gave to the plaintiff, in settlement of that balance, a check for said amount. It is dated November 20, 1911, and is payable to the order of the Scudder Syrup Company. On said 20th day of November, the plaintiff wrote to the Scudder Syrup Company, at Chicago, reporting that he had adjusted said matter with Allen & Lewis, and that he had received from them a check for $89.12, in settlement of said account, and asking the Scudder Syrup Company to permit him to use said check or the money covered by it as an advance on his salary for January and February, 1912. It had been agreed between him and that company that he should resume working for that company as a traveling salesman in January 1912. About two days after writing said letter, and before he received an answer to his request, the plaintiff indorsed said check in blank by writing on the back thereof the following words: "Scudder Syrup Company, A. L. Willetts"--and deposited it to his credit at the banking house of Ladd & Tilton, where he was accustomed to do his banking business. On November 28, 1911, the Scudder Syrup Company wrote the plaintiff from Chicago, acknowledging that it had received his letter of November 20th, saying inter alia the following:

"You will also note we have credited them (Allen & Lewis) with the check given you in the amount of $89.12, which amount has been charged to your account with us."

On December 1st, four days later, the defendant also wrote the plaintiff a letter acknowledging the receipt of the plaintiff's said letter of November 20th, and saying:

"I note that Allen & Lewis gave you $89.12, and this amount you want temporarily, which is satisfactory."

The two letters referred to, supra, from said company and the defendant show that the plaintiff on November 20th, the day that the check from Allen & Lewis was given to him, wrote to the Scudder Syrup Company, giving it an account of the adjustment of said business with Allen & Lewis, and of the fact that the last-named company had given him a check for $89.12, to pay the amount due from said company to the Scudder Syrup Company, and asking the last-named company to permit him to use the money covered by said check as an advance on salary or as a loan, and that both the Scudder Syrup Company and the defendant agreed that it was satisfactory for him to have said money as an advance or as a loan. Those letters show also that he informed said company that Allen & Lewis had paid said account by check. The company's letter states that Allen & Lewis had been credited with the amount of the check, and that the plaintiff had been charged therewith in his account.

The libels that are the basis of this action grew out of the indorsement of said check by the plaintiff. The plaintiff was in the employ of the Scudder Syrup Company during a part of January and February, 1912; but on March 10, 1912, he entered the service of the Adirondack Maple Company of Lowville, N.Y. On April 12, 1912, the defendant wrote to L. S. Miller, president of the Adirondack Maple Company, a letter informing him that the Scudder Syrup Company had had the plaintiff in its employ during the previous year, and had paid him $100 per month and traveling expenses. He stated also that the plaintiff was indebted to his company, and made the following charge against him:

"Allen & Lewis gave him a check, payable to our order, and, to get the money on this check, he forged our name."

On April 26, 1912, the defendant wrote said L. S. Miller another letter, again accusing the plaintiff of the crime of forgery, as follows:

"We have written Mr. Willetts that, unless he reimburses us for the check on which he forged our signature, we will begin a criminal action against him at once."

The complaint contains two counts for libel, based on the charges made by the defendant in the two letters, addressed to L. S. Miller, as stated, supra. Miller was the president of the company, for which the plaintiff was then working. The charges in those letters caused said company to discharge the plaintiff, and he was, in consequence thereof, without employment for three months.

The defendant filed an answer, denying parts of the complaint, and then set up, as a defense to each count of the complaint, that the charges that he made against the plaintiff and set out in the complaint were true, etc. The answer pleaded also a settlement with the plaintiff, but, as there appears to be no merit in said last-named defense, it will not be referred to again.

The most of the new matter of the answer was put in issue by the reply. At the trial a verdict and a judgment were rendered for the plaintiff in the sum of $433.75. When all of the evidence was in, the defendant moved the court to instruct the jury to return a verdict for the defendant. This motion was denied. After the judgment was rendered, the defendant presented a motion to set aside the verdict and judgment and for a new trial. This motion also was denied. The defendant appeals and assigns as errors the denial of said motions. It is not claimed that the trial court erred in admitting or excluding evidence or in the instructions given to the jury.

1. The order denying the motion for a new trial is not an appealable order, and hence we cannot review the action of the court in relation thereto. This rule is well settled by the decisions of this court. It is not necessary to cite the cases announcing this rule of practice.

2. At the conclusion of the evidence, the defendant moved the trial court for an order thereof, directing the jury to return a verdict in favor of the defendant, for the reason that the defendant had justified the charges made against him, and for the further reason that the plaintiff had failed to make out his case.

3. A libel is a malicious defamation, made public either by printing, painting, writing, signs, or pictures, tending to blacken the memory of one who is dead, or the reputation of one who is living, and to expose him to public hatred, contempt, or ridicule. Root v. King, 7 Cow. (N. Y.) 613; Newell on Defamation, Slander and Libel, § 3.

Forgery is the false making or material altering, with intent to defraud, of any writing, which, if genuine, might apparently be of legal efficacy, or the foundation of a legal liability. Black's Law Dict. (2d Ed.) 513; State v. Wheeler, 20 Or. 195, 25 P. 394, 10 L. R. A. 779, 23 Am. St. Rep. 119.

To charge a person in writing with forgery is actionable per se. 25 Cyc. 282. A person charged in a civil action with libel may defend by alleging and proving that the alleged libelous words used by him were true. Section 92, L. O. L.; Upton v. Hume, 24 Or. 431, 33 P. 810, 21 L. R. A. 493, 41 Am. St. Rep. 863.

The defendant in his answer alleges that the plaintiff did forge the name or signature of the Scudder Syrup Company in indorsing the check referred to, supra, given by Allen & Lewis, and that what he said in relation thereto was true, etc. The verdict of the jury is in effect a finding that the charge of forgery made by the defendant against the plaintiff is false and malicious.

The defendant asks us on this appeal to set aside said verdict and to hold that his motion for an instructed verdict for the defendant should have been sustained by the trial court.

Section 3 of article 7 of the Constitution, adopted in 1910, in part is as follows:

"In actions at law, where the value in controversy shall exceed $20.00, the right of a trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict."

This constitutional provision is a standing inhibition, binding upon every court, against re-examining any fact that has been tried by a jury, unless the court can say...