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there can be no appeal, and whose action is A people jealous of their rights will speedily now made final and conclusive. While ex- sweep from the statute books the least expressing noble and lofty sentiments upon the cuse for thwarting their will as honestly exsubject of fair elections, in which I heartily pressed by their ballots. They will free the concur, it seems to me that the majority of ballot box from the absolute and arbitrary this court, after uttering them, proceed to control of election boards, and provide that make a fair election the sport of chance and innocent mistakes of election officials shall wholly dependent upon the conduct of elec- not constitute a ground for wholesale distion officials who preside at each polling franchisement. precinct, and in whose hands is now lodged I may aptly close this opinion by quoting

enormous uncontrolled and uncontrol. a brief, but comprehensive, extract from lable power. History will bear me out in Judge Cooley's great work on Constitutional saying that these bodies are not always free Limitations, at page 775: “That one entifrom partisan and corruptinfluences, and that tled to vote shall not be deprived of the privmany of the most notorious frauds against ilege by the action of the authorities is a the ballot box have been perpetrated by elec- fundamental principle.” As to the other tion officials. The temptations to fraud may matters discussed in my former opinion, I be great under the law as it is now to be am content to permit them to remain unadministered, but it will not continue long. modified.




Daniel SULLIVAN, Appt.,

souri, and A. D. Evans is its secretary. J.

M. Chittim is a large cattle dealer in Texas, STRAHORN-HUTTON-EVANS COMMIS. and held $10,000 of the stock of the defend. SION COMPANY, Respt.

ant company. Prior to the 24th of June,

1895, the defendant had loaned Chittim $50,(........Mo.........)

000, which was evidenced by his note to it,

secured by a mortgage on 4,150 head of cat. Any privilege that may exist by tle, of which 2,500 were in the Thornton pas. virtue of the common interest of the ture, in Bee county, Texas, and 1,600 in other parties when a creditor is writing to his pastures. The $50,000 secured note was debtor complaining of a delay in the payment dated October 18, 1894, and matured about of the debt by a third person through a bank, April 21, 1895. About the 1st of April, 1895, tives and dishonesty to such third person by Chittim paid defendant $10,000 on account, use of the following language: "We know and executed renewal notes (the record does S. very well, and firmly believe he has mis- not show how many) for $40,000, which mainstructed his St. Louis bank here in order tured at different dates between the 13th and to make interest on your money. We sin- 28th of June, 1898. Chittim paid $11,000 of cerely hope, for your own good, and ours, these renewal notes before June 24, 1895. too, that you will never have anything more Some time prior to June 24, 1895, the defendto do with S., when the business has to come ant notified Chittim that he must meet his through our hands, as we do not like his business methods, and we are afraid to deal with

notes at maturity, as it was in need of funds. him."

To enable himself to do so, Chittim applied 2. A question for the jury as to malice to D. Sullivan & Co. for a loan of $35,000 to

of the writer of a defamatory letter is raised, be secured by his mortgage and notes held by although the question of privilege is for the defendant, and on the 24th of June, 1895, court, where violent language is used, and Sullivan & Co. made the loan; and on the improper and evil motives are attributed.

same day Sullivan & Co. wrote to defendant (November 14, 1899.)

that Chittim "requests us to ask you to send

releases for his cattle in Bee county to us, A ,

the Circuit Court for the City of St. Louis if everything proper, we have instructions to in favor of defendant in an action brought remit you amount. He also says the amount to recover damages for the alleged publica- is about $25,000. Mr. Chittim also requests tion of a libel. Reversed.

you to send us his stock he has in your com

pany, by express.” On the 26th of June, Statement by Marshall, J.:

1895, defendant replied to Sullivan & Co.: Plaintiff is the senior member of the firm “We have your letter of 24th inst., and have of D. Sullivan & Co., which company is en- sent the same to our Kansas City office, as gaged in the banking business at San An. they hold the Chittim paper, amounting to tonio, Texas. Defendant is a business cor- | about $25,000. You will hear from that of. poration organized under the laws of Mis- fice in due course of mail. Agreeable to your

NOTE.-For malice to destroy privilege in A. 280 ; Broughton v. McGrew (C. C. D. Ind.) libel case, see also Smith v. Smith (Mich.) 3 5 L. R. A. 406 ; Moore v. Manufacturers' Nat. L. R. A. 52, and Belknap v. Ball (Mich.) 11 L. Bank (N. Y.) 11 L. R. A. 753; Rothholz V. R. A. 72.

Dunkle (N. J.) 13 L. R. A. 655 ; and Warner v. For statements in course of business, see also Clark (La.) 21 L. R. A. 502. Missouri P. R. Co. v. Richmond (Tex.) 4 L. R.

request, we send you, Pacific Express to: sant: “Present papers to Boatmen's Bank night, J. M. Chittim's stock in our company.” again. Instructions reached them by this On the 28th of June, 1895, defendant wired tiine. Indorse Chittim's notes to us without Chittim: "Have Sullivan wire his St. recourse.” On the same day defendant teleLouis bank to pay us twenty-nine thousand graphed Chittim: “Sullivan wants us to indollars on receipt of mortgages released to dorse your notes without recourse. We Sullivan & Co., covering forty-one hundred think your notes should be canceled before fifty cattle in Thornton pasture. This will Sullivan gets them.” Chittim telegraphed make your individual account about even at defendant on the same day: "Sullivan wired this office, and leave you owing Kansas City bank to accept release of twenty-five hundred five thousand dollars, maturing July 17th, head of cattle in Thornton pasture. Deliver which we will extend for you. Answer.” to bank mortgage, release, and notes covering On the 29th of June, 1895, Sullivan wired de them.” On the 2d of July the Boatmen's fendant: “We wrote Boatmen's Bank to Bank telegraphed Sullivan: “Strahornday to pay you $29,000 on delivery to them lutton-Evans Co. offer release for twentyof proper releases of Chittim cattle.” On the five hundred, with surrender of mortgage. same day Sullivan wrote the Boatmen’s Bank Shall we accept? Please also state what of St. Louis: "The Strahorn-Hutton-Evans amount of notes we are to get. They offer Com. Co., National Stock Yards, Illinois, will $30,000 canceled. Decline to indorse with: present to you mortgage and releases cover-out recourse and deliver uncanceled.” On ing 4,156 head of cattle of J. M. Chittim, in the 20 July, 1895, Sullivan telegraphed BoatThornton pasture, Bee county, Texas; and men's Bank: “Observe instructions our let. upon delivery to you of mortgage, releases, ter 29th and telegram 30th regarding pay. and notes of J. M. Chittim, covering said ment of Strahorn-Hutton-Evans Com. Co.

, inortgage, you will please pay them $29,000, with exception that mortgage release and and charge our account with same. Send us notes of J. M. Chittim shall cover twenty. all papers by express at the value of $10." five hundred head of cattle in Thornton pasOn the same day Chittim wrote defendant: ture, instead of forty-one hundred and fifty "Just in receipt of your letter and statement. head, as advised.” This change from 4,150 I do not fully understand. I owed individ- to 2,500 head of cattle was made because, ually $50,000 at St. Louis, and $25,000 K. C. while the mortgage covered 4,150 head, there 1 placed $25,000 cash your office, and $5,- were only 2,500 head in the Thornton pasture, 000 cash K. C., and total of $30,000; and, as and Chittim explained to Sullivan that he I have never got all sales of the Chittim and (Chittim) owed defendant some other debt, Lasater cattle, do not know what they and defendant might not want to release all amount to. I wish to have a full statement, the security; and, as the 2,500 head of cattle as, I am so thick-headed, unless everything was regarded as sufficient security to Sulliis very plain I cannot understand it. I wish van, he agreed to make the change to 2,500 you would please itemize each transaction. head from the 4,150 head as originally agreed I see $50.00, one time, exchange and int., and upon as security for his loan to Chittim. the total acc't shows $36,868.58. Please let Defendant still refused to indorse the notes me have a full statement, and what amount without recourse but insisted upon canceling you placed at K. C., and that amount you re- them, and the Boatmen’s Bank refused to ceived from Chittim and Lasater cattle. pay the money unless the notes were indorsed You speak of open ace't. Did I overdraw without recourse. On the 3d of July defendmy acc't? If so, when and how much? dant wired Chittim: “Please see Sullivan Hoping you will not find it too much to get at once and make them fix matter." Chitthe acc't so a leather-head can understand it. tim was not in San Antonio when this disP. S. Sullivan wired $29,000 on release of patch reached there, but Sullivan replied by mortgage St. Louis, to-day. Hoping it has wire to defendant: “Chittim out of the city, all been released, satisfactorily; for I am but, if you will observe instructions wired paying him interest, and meant to stop in you by Chittim yesterday, you will get your terest at that end at once.” On the 29th of money." Upon receipt of this telegram, deJune, Evans, defendant's secretary, applied fendant wired Sullivan "Why don't you to the Boatmen's Bank, and, learning that instruct bank to accept release on twentySullivan's letter of the same date from San five hundred steers, and advise us how many Antonio had not been received by the bank of Chittim's notes you want? Please wire (which, of course, it had not been, as it was them immediately.” On the same day deonly mailed at San Antonio that day), tele iendant wrote Chittim: "Up to this hour, graphed Sullivan: “Your letter to Boat- three o'clock, we have not been able to get the men's Bank not received. Instruct them boatmen's Bank to pay us the $20,000 which fully by mail at once." Evans called later you advised us Sullivan & Co. instructed them at the bank, and learned that Sullivan's let. to pay. When we went to see the Boatmen's ter had been received, but was not fully un- Bank Monday, they had not received any in. derstood, so the bank would not pay the structions from Sullivan & Co., except a tele. money without further directions. There gram which was so indefinite that none of upon, on the 1st of July, 1895, defendant us could understand it. Tuesday the Boattelegraphed Chittim: "Sullivan's instruc- men's Bank received a letter stating that we tions to their bank are so indefinite that they would turn over to them a released mortgage cannot pay us. Have Sullivan instruct them covering 4,516 cattle. Later in the day they immediately, and you wire us what to re received a telegram stating to accept release lease to bank. Answer quickly.” On the 1st on 2.500 head of cattle, and also instructed of July, 1895, Sullivan telegraphed defend the Boatmen's Bank to require us to indorse

your notes without recourse. Now, the ques- | that letter which is made the basis of this action with the Boatmen's Bank is what notes tion is privileged. to indorse, and how many. We wired you yes- In making a communication which is only terday, but Sullivan replies that you are out privileged by reason of being made to a perof the city, and that they cannot do anything son interested in the subject matter thereof, towards paying us the money until you re the writer nust be careful not to branch out turn. We know Sullivan very well, and into extraneous matter with which he is not firinly believe he has misinstructed his St. concerned. Louis bank here in order to make interest on Newell, Defamation, Slander & Libel, p. your money. We sincerely hope, for your 532; Odgers, Libel & Slander, 245; Callahan own good and ours, too, that you will never v. Ingram, 122 Mo. 355, 26 S. W. 1020; Arhave anything more to do with Sullivan, nold v. Suyings Co. 76 Mo. App. 159. when the business has to come through our

He must also be careful to avoid the use of hands, as we do not like his business methods, exaggerated expressions, for the privilege and we are afraid to deal with him. We are inay be lost by the use of violent language now carrying all of your past-due paper, and when it is clearly uncalled for. are feeling the weight. Hope you will re- Newell, Defamation, Slander, & Libel, p. ceive our telegrams to-day or to-morrow, and 532, and cases cited. will make Sullivan & Co. instruct their St. Anyone in the transaction of business with Louis bank to pay us the money."

On the another has the right to use language, bona 5th of July the Boatmen’s Bank paid de tide, which is relevant to that business, and fendant $29,000, and received from it Chit. which a due regard to that business makes tim's notes for $50,000, together with the necessary, even if it should directly or by its mortgage securing the same, and a release as consequences be injurious or painful to anto 2,500 head of cattle in favor of Sullivan other; and this is the principle upon which & Co., which the bank forwarded to Sullivan privileged communications rest; but defama& Co. Sullivan & Co. had done business with tory coinments upon the motives and conduct the Boatmen’s Bank for about fifteen years, of the party, with whom he is dealing do and had never received any interest on their not fall within this rule. account with the bank, had never overdrawn Tuson v. Evans, 12 Ad. & El. 733. their account, and at the times herein re

The court erred in instructing the jury, ferred to had a balance to their credit in the at the request of the defendant, that there bank of something over $35,000. Sullivan was no proof of express malice. & Co. and the defendant did not know each When the matter complained of is privi.. other at all, and had never had any previous leged, the burden of proving malice lies on business dealings with each other. When the plaintiff. Chittim received defendant's letter, he

Such evidence may either be extrinsic showed it to Sullivan; and afterwards, when as of previous ill feeling or personal hostil. Chittim spoke to Mr. Evans, the secretary of ity between the parties, threats, rivalry, the defendant company, about the letter, and squabbles, or other actions, libels, or slan. told him he had shown the letter to Sullivan, ders, and the like, or intrinsic,—the violence Mr. Evans said the letter was intended for of the defendant's language, the mode and Sullivan to see, if Chittim chose to show it extent of its publication, etc. to him. Sullivan then instituted this libel Newell, Defamation, Slander, & Libel, 324. suit against defendant, counting upon the Malice, express and implied, are the same, italicized portion of the letter of July 3, 1895. the only difference being in the establishment The defendant answered, admitting the writ. of it. ing of the letter to Chittim, and pleading Callahan v. Ingram, 122 Mo. 355, 26 S. W. that it was a privileged communication, 1020. written by it in good faith, believing it to be Where the language used, though taken in true, to Chittim, its client and one of its connection with what was in the defendant's stockholders. The reply was a general de mind at the time, is much too violent for the nial. Upon the trial in the circuit court the occasion and circumstances to which it apevidence for the plaintiff disclosed the facts plied, or utterly beyond and disproportionate herein set forth. At the close of the plain to the facts, or where improper motives are tiff's case the defendant demurred to the evi- unnecessarily imputed, there is evidence of dence on the grounds: "(1) Because, under malice to go to the jury. the pleadings and evidence in the case, the Newell, Defamation, Slander, & Libel, 340, plaintiff is not entitled to recover; (2) be

341. cause the letter is privileged; (3) because,

It is not necessary, to render an act ma. the letter being privileged, there is no evi: licious, that the party be actuated by a feel. dence of express malice offered.”. The courting of hatred or ill will towards an individsustained the demurrer. Plaintiff took a nousuit, with leave, which being overruled, ual, or that he entertain and pursue any genthe plaintiff appealed to this court.

eral bad purpose or design.

Com. v. Snelling, 15 Pick, 321. M8818. Lubke & Muench and Charles In the case of privileged communications W. Ogden, for appellant:

slight evidence of malice may be left to the While a portion of the letter of July 3, jury. 1895, written by the defendant to J. M. Chit- l'ories v. Bowen, 30 N. Y. 20; Lathrop v. tini, referred to a business transaction in Hyde, 25 Wend. 448. which they had a common interest, still the Il essrs. J. W. Hamilton and D. P. Dyer court erred in holding that the portion of' for respondent.

Marshall, J., delivered the opinion of the cation: “There can be no doubt, on proper court:

occasion, members of the city council would In the trial court counsel treated the let. be protected from ‘responsibility for whatever ter as libelous. The defendant contended is said by them which is pertinent to any in. that it was a privileged communication; and quiry or investigation pending or proposed the plaintiff, while conceding that the de. before them, but no further. They would fendant had a right to write in harsh or become 'accountable when they wander from fault-finding terms to Chittim about the busi- the subject in hand to assail others.'” In ness in hand, it had abused its privilege by T'rson v. Evans, 12 Ad. & El. 733, it apmaking irrelevant charges against the plain-peared that defendant claimed that plaintiff tiff, and by libeling him, when there was no owed him rent, and authorized his agent io necessity, in the nature of the business be demand it. The agent reported to defendant tween defendant and Chittim, to impute evil that plaintiff denied his liability, and theremotives to Sullivan, or to charge him with upon defendant wrote to his agent, saying: dishonesty or fraud, and hence the privilege "This attempt to defraud me of the produce was lost; and, furthermore, that there was of the land is as mean as it is dishonest." enough prima facie evidence of express mal. Plaintiff sued for libel. Defendant pleaded ice to take the case to the jury.

privileged communication. The trial judge "A privileged communication,” says New- reserved leave to move to enter a nonsuit, but ell on Defamation, Slander, & Libel, 2d ed., p. told the jury that the publication was a libel, 388, "is one made in good faith upon any sub- and that the only question was the amount of ject matter in which the party communicat. the damages. There was a verdict for plaining has an interest, or in reference to which tiff, and, upon the decision of the rule rehe has, or honestly believes he has, a served, Lord Denman, Ch. J., said: “Some duty, to a person having a corresponding in- remark from the defendant on the refusal to terest or duty, and which contains matter pay the rent was perfectly justifiable, bewhich, without the occasion upon which it is cause his entire silence might have been connade, would be defamatory and actionable.” strued into an acquiescence in that refusal, Every defamatory publication prima facie and so might have prejudiced his case upon implies malice, but where a communication any future claim; and the defendant would is made in good faith upon any subject-mat- therefore have been privileged in denying the ter in which the communicant has an inter- truth of the plaintiff's statement. But, upest, or in reference to which he has a duty, on consideration, we are of opinion that the legal, moral, or social, to a person having a learned judge was quite right in considering corresponding interest or duty, it is privi- the language actually used as not justified leged, and the privilege rebuts the presump- by the occasion. Anyone, in the transaction tion of malice, and the burden of proof is of business with another, has a right to use cast upon the plaintiff to prove express mal. language, bona fide, which is relevant to that ice. Newell, Defamation, Slander & Libel, business, and which a due regard to his own pp. 389-391. But the interest must be com interest makes necessary, even if it should mon to both parties,—the person communi- directly, or by its consequences, be injurious cating and the recipient of the communica- or painful to another, and this is the prin. tion, e. g. two customers of the same bank, ciple on which privileged communication two directors of the same company, two cred-rests: but defamatory comments on the moitors of the same debtor, two officers of the tives or conduct of the party with whom he same corps, two executors or trustees, an at- is dealing do not fall within that rule. It torney and client, etc.; and, to fall within was enough for the defendant's interest, in the privilege, “the statement must be such the present case, to deny the truth of the as the occasion warrants, and must be made plaintiff's assertion. To characterize that bona fide to protect the private interests both assertion as an attempt to defraud, and as of the speaker and of the person addressed.” mean and dishonest, was wholly unneces. Odgers, Libel & Slander, p. 234. “So, too, in sary. This case therefore was properly left making a communication which is only privi- to the jury, and there will be no rule." leged by reason of its being made to a person Applying these principles to the case at interested in the subject matter thereof, the bar, it follows that the trial court erred in defendant must be careful not to branch out holding that the portion of the letter of July into extraneous matters, with which such 3d, complained of, was privileged. The occaperson is unconcerned. The privilege only sion did not justify the terms employed, and extends to that portion of the communication they were wholly unnecessary; and this is true in respect of which the parties have a com. even if it be conceded that they were used in nion interest or duty. The defendant must respect of a matter of common interest be. also be careful to avoid the use of exagger-tween defendant and Chittim, as to which it ated expressions, for the privilege may be is quite debatable. The record shows that lost by the use of violent language when it is defendant was advised by plaintiff as early clearly uncalled for.” Id. p. 239. Or, as as June 24th that Chittim had secured the was said in Callahan v. Ingram, 122 Mo. 355, money from him to pay defendant if the se26 S. W. 1020, where a member of a city curities were proper, and defendant was recouncil, while in open session, spoke of the quested to send the securities to plaintiff at superintendent of streets, against whom no San Antonio, and also to send Chittim's charge or inquiry was pending, as a "down stock in the defendant company to plaintiff. right thief,” and, when sued for slander, de Defendant on the 26th day of June sent the fended on the ground of privileged communi.'stock to plaintiff, and wrote him that the


Chittim notes were held by defendant's Kan- van had furnished Chittim the money to pay sas City office, and that plaintiff would hear his debt to defendant, and was to get the from there by due course of mail. But, in- securities it held, and the whole negotiation stead of doing so, for some unexplained rea- up to this time was on that understanding; son, defendant, two days later (June 28), yet defendant arbitrarily, and without any telegraphed Chittim to have Sullivan wire authority from Chittim, but in the face of his St. Louis bank to pay it $29,000 on re- his instructions to the contrary, and of his ceipt of mortgage, released to Sullivan & Co., refusal to take its advice to cancel the notes cevering 4,150 cattle in the Thornton pas- before Sullivan got them, refused to indorse ture; stating that this would make Chittim's the notes without recourse, and insisted upon individual account about even at the defend- canceling the notes. Upon being advised by ant's St. Louis office. Complying with this the bank of this claim of defendant, Sullivan request for a change of the original arrange directed the bank to observe his instructions ment, Sullivan on the next day (July 29), previously given. Thereupon, on the 3d of wired defendant that he had written the July, defendant, without disclosing the true Boatmen's Bank to pay it $29,000 on delivery reason for the nonpayment, telegraphed to them of proper releases of Chittim cattle, Chittim to have Sullivan fix the matter, and, and did actually write the Boatmen's Bank, upon receiving a reply from Sullivan that directing it to pay defendant $29,000 upon Chittim was out of the city, but that, if it delivery to it of mortgage, releases, and would observe Chittim's instructions of the notes of Chittim "covering said mortgage" 2d of July, it would get its money, teleon 4,150 head of cattle in the Thornton pas- graphed Sullivan on the same day (July 3d) ture. On the 1st of July defendant's secre- to instruct the bank to accept release on 2,tary called on the bank, and was informed 500 head of steers, and asking how many of that Sullivan's instructions were so indefi- Chittim's notes he wanted. This, too, in the nite and uncertain the money could not he face of Chittini's telegram to it on July 1st paid; and defendant so wired Chittim, and telling it that Sullivan had instructed the asked him to have Sullivan instruct the bank bank to aecept a release of 2,500 cattle upor. immediately, and asking what Chittim his delivering to the bank “mortgage, release, wanted released to the bank. On the same and notes covering them.” It is incompreday Sullivan telegraphed defendant to pre- hensible how defendant could ask Sullivan sent the papers to the bank again, and added: how many of Chittim's notes he wanted, when “Indorse Chittim's notes to us without re- it knew Sullivan was furnishing the money

Instead of doing this, defendant on to pay the $29,000 Chittim owed defendant, the same day telegraphed Chittim that Sul. and was to get the mortgage and all the notes livan wanted the notes indorsed to him with it covered. It will be observed, however, that out recourse, and advised Chittim that the defendant did not tell Sullivan the true rea. “notes should be canceled before Sullivan son upon which the bank refused to pay him gets them.” On the same day Chittim tele- the money on the day before, i. e., that defendgraphed defendant that Sullivan had in- ant would not indorse the notes without restructed the bank to accept release of 2,500 course, but insisted upon canceling them becattle in the Thornton pasture, and directed fore Sullivan got them. Thus, it appears defendant to deliver to the bank “mortgage, that the defendant itself was wholly and solerelease, and notes covering them." Up to ly the cause of the $29,000 not being paid to this time 4,150 head of cattle had been spo it before the 3d of July. Sullivan and Chitken of, and this is the first time a release of tim and the bank had met every proper re2,500 head had been referred to in the corres- quest of defendant, and defendant itself repondence; and this reduction was not of de- fused to accept the money on the 2d of July, fendant's asking, but was suggested to Sul. except upon terms it was not authorized to livan by Chittim, and agreed to by him, so impose, and which were perfectly absurd, to that defendant would still have security for wit, that the notes, which were to be Sulli. any other debt Chittim owed it, although in van's security, should be canceled before he its telegram to Chittim of June 28, asking received them. Now, it was in the light of that the payment be made in St. Louis in these facts, conditions, and circumstances stead of in San Antonio, defendant had said that the defendant wrote the letter of July the mortgage covered 4,150 head of cattle, 3d to Chittim, containing the libelous matand that $29,000 would make Chittim's in. ter complained of in this suit. That matter dividual account about even at the St. Louis was unnecessary and unjustifiable. It said: office. However, instead of doing as Chit "We wired you yesterday, but Sullivan retim directed on the 1st of July, the defend- plies that you are out of the city, and that ant on the 2d of July offered the Boatmen's the money until you return.” Sullivan's

they cannot do anything towards paying us Bank to release 2,500 head of cattle, with surrender of mortgage and of Chittim's notes “Chittim out of the city, but, if you will ob

telegram was quite different. It read: for $30,000, canceled, and declined to deliver serve instructions wired you by Chittim yes. to the bank the Chittim notes indorsed with terday, you will get your money.” Again out recourse, as directed by Sullivan's tele- this letter said: “We know Sullivan very gram of the 1st of July, but insisted upon well” (which was not a fact, as defendant canceling the es, as defendant advised and Sullivan were not acquainted, and never Chittim by telegraph, on the 1st to do. had any dealings before), "and firmly believe Right here it will be observed that defendant that he has misinstructed his St. Louis bank was itself the cause of the money not being here in order to make interest on your paid on that day, because it knew that Sulli. money” (which was a gratuitous imputation

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