taken and conducted by him merely for the purpose of enabling the plaintiff to dispose of some old fixtures; business was conducted at a loss; that the plaintiff was in a failing and insolvent condition at the time of the publication, and was not injured; that as soon as the defendant learned that the bill of sale was in fact executed, not for a consideration of $1, but for $700, it at once published a correction of said error."

The reply was in usual form.

The facts are as follows: Ukman, having gathered experience by connection with tobacco concerns for several years, in 1900 commenced business in a venture of his own under the name and style of the A. G. Ukman Cigar Company with a present capital of $600, and thereafter did a wholesale cigar business, first at 805 North Fourth street, and then at 409-411 Morgan street. In November, 1901, he started a retail cigar store at 612 Chestnut, and seems to have moved his wholesale business there and to have conducted it in the rear of that stand. Prior to starting his retail store, and preparatory thereto, and thereafter, up to and inclusive of December, 1901, he bought goods on credit in the East to the rise of $4,000. It seems the retail store was conducted at a loss during November and December, 1901, and January, 1902, and his evidence was to the effect that the wholesale department (during said period, at least) showed a small monthly increment of profit, say from $75 to $100. The amount of loss in the retail department is not shown by the record, nor is it shown how the accounts of the two departments were kept in order to arrive at the aforesaid gain; that is to say, the rents, taxes, licenses, living and other expenses, and outgoes are not pointed out or apportioned between the wholesale and retail departments, and are wholly left to conjecture. It is certain from Ukman's testimony that his affairs on February 1, 1902, were radically embarrassed. At what precise time he had approached the brink of insolvency may only be guessed at, but on that day he had fallen over the brink and was entirely insolvent; for he owed over $4,000 mercantile debts in the East, and possibly some confidential debts at home; and the evidence indicates that he owed some small business debts there also. He had in assets, as near as we can ascertain, $1,000 of goods and fixtures in his wholesale department, plus the goods and fixtures in his retail department. On that date he sold his retail store to Miss Handschiegel for $700-half cash in pocket, and half on time, the deferred payments being evidenced by paper, subsequently discounted by him and realized on; said transfer being evidenced by a sale bill stating the true consideration and spread of record. He then moved his wholesale department to the International Bank Building, and conducted a wholesale business at that stand until March 21, 1902, when he filed two petitions

-one in the federal court, having for its purpose to be adjudged a bankrupt, his assets administered upon, and to be discharged of his debts, and the other this suit against respondent for $10,000 damages for libel.

men.

It is admitted in the pleadings, and established by the proof, that respondent on February 3, 1902, printed and published the matter complained of, and that it was correct in all details, except that the consideration was printed as $1, when it should have been $700; and it was shown that three weeks thereafter appellant complained to respondent of the mistake in the publication, and it was at once corrected and published in correct form for two successive days. It was furthermore proved that the Daily Record is a newspaper devoted to the gleaning and publication of facts from the current records, possibly of the courts, but certainly of the records kept by the recorder of deeds of the city of St. Louis, as news, and, moreover, that it had a list of subscribers of from 1,200 to 1,300 in and about St. Louis, who were lawyers and real estate and business Between February 1 and March 21, 1902, appellant sold $700 worth of his remaining goods, and was left with a stock valued at $300 and $200 or $300 in uncollected accounts when he went into bankruptcy, claiming and was allowed the stock on hand as exempt, and turning over said account to the trustee. At the date of bankruptcy none of his Eastern indebtedness was due, and it all remained unpaid. He had, however, paid off possibly his confidential and personal debts and all his local business debts, except a few small bills which were overdue and unpaid to the amount of $200 or $300. There was no evidence that any cigars were stopped in transit as alleged in the petition. There was evidence that he was refused credit in the East, but there was no evidence that the Daily Record was circulated there, or that any of his Eastern creditors saw the publication in question, or that his line of credit there was weakened thereby. On this head it may be said, in passing, that suits were brought by appellant against Dun's and Bradstreet's Mercantile Agencies, presumably based on publications made by them affecting his standing in commercial circles at large.

It was shown that appellant bought very little, if any, in St. Louis, and it was not shown that his buying credit in St. Louis was affected one way or the other. That he had been in the habit of borrowing small sums from a limited circle of local acquaintances to tide over matters and pay overdue bills is shown, and also that this custom increased somewhat immediately before the publication in question; and it was testified by appellant that he had applied to some of his local friends after the publication and had been refused credit. Appellant testified he had a line of credit with one Goldman, with one Kaminsky, with one Friedman, with

ene Graber, with one Alt, and with one Garfade, from whom severally he had borrowed small sums on short time prior to the publication; that a short time after the publication, say two weeks, he tried to borrow from Graber, Alt, Grafingle, and Friedman for the purpose of paying debts, but whether he succeeded or not he does not say. Called on to explain what had become of his assets, he testised that he was losing money because he eonid not take the road to sell goods, and that be had fallen behind as much as $1,500 on account of sickness in his family; but when these expenses on account of sickness occurred the record does not enlighten us. Appellant called Friedman, Alt, Garfingle, and Hiram B. Morse, publisher of the St. Louis Daily Record and president of the respondent company, to the stand. By Friedman he proved that his credit was very good prior to the 3d day of February, 1902; that witness had loaned him at divers times sundry small amounts, which had always been promptly repaid; that he had not seen, but had heard of, the publication in question, and, when asked what he understood by the words of the alleged libel, said that he understood by those words "that plaintiff naturally wanted to defraud everybody, and he would naturally put it that way to a business man." On cross-examination witness said he had sold appellant goods on credit and that he paid nicely right along." Being pressed, however, he admitted he had never sold appellant any goods "directly," but said he had “directly." Further pressed, he explained Indirectly" to mean that he had sold goods to appellant's brother. He further stated that he had never heard of "a dollar" consideration, when it did not mean that it was the real consideration in a business transaction; that at the times he had made loans to appellant be bad made no inquiries into his financial condition, had taken no security for the loans; and that appellant had told him at these times that he had to pay bills, and was short of money, and was not able to meet his bills, and wanted the money until he made collections. By Alt it was shown that he was appellant's physician; that his credit was good for small sums; that he had advanced him such sums without note or security during the year previous, and had been repaid; that about two weeks after the publication appellant came to witness and inquired if he had any money, and witness replied that he did not have any. On being asked his reason for this reply, his answer was that he had lost confidence in appellant, because he had heard that he had sold out for $1. On cross-examination witness said that the last loan he had made before February 3, 1902, was $100; that it was a "strict confidential loan accommodation"; that he was a friend of Ukman, but took no interest in him; made his loans for accommodation, and not "as business at all." By Garfingle it was shown that appellant's credit was good

with witness; that he had loaned him money every three or six months in modest amounts, and had taken his unsecured notes, which had always been paid on time; that two weeks after the publication appellant tried to borrow $500 of witness, which he refused, for the reason that he had seen in the St. Louis Daily Record he had sold out for $1, and witness thought that appellant wanted to cheat his creditors and had failed. When he saw appellant after the publication, he told him about it, and appellant explained to witness that he had sold out for $700, but witness had it in his mind that he did not want to trust him any more; that the idea conveyed to witness' mind by what he read in the Daily Record was the appellant had failed, and had turned over his property, so that his creditors could not touch it. By Hiram B. Morse, among other things, it was proved that he was the business manager and president of respondent company; that he was familiar with the way considerations are stated in deeds, and had noticed statements where the consideration was $1 on many occasions; that when the consideration is stated at $1 in a bill of sale, witness would understand that the parties do not care to tell what the exact amount was, and their reasons for not doing so are as various as the individuals. Witness understood that the $1 mentioned does not respresent the exact value of the goods transferred; had never known an instrument where $1 was used as the consideration where the value of the goods conveyed was represented as that sum; would not infer that a man was giving away his property simply because the consideration was $1; would not understand from such publication that the party selling out was disposing of his property to defraud his creditors; would never understand it that way. This witness further testified that he did not see the publication on the morning it was published; that his attention was called to it some 20 days later through one Wurtz, connected with respondent's office, whose attention had been called to it by Ukman; and that thereupon the item was republished correctly for two successive days, stating the consideration at $700.

As respondent introduced no evidence on its answer, the affirmative allegations appearing therein relating to the custom of the recorder of deeds in furnishing respondent memoranda of transfers recorded in said office, and in not permittting respondent to search the records for itself, and in requiring respondent to take its information from an agent of the recorder, and that an agent furnished respondent a memorandum under the head of "Bills of Sale" of the exact character published, were not proved. It will be noted, also, that appellant does not ask for punitive damages; the amount of no smart money demanded being stated separately, as required under section 594, Rev. St. 1899.

Did the court err in applying the law to the

foregoing facts, under the issues in the pleadings? We think not, for the following reasons: Libel cases are sui generis, in that the gist of Fox's libel act, imbedded in our Constitution (section 14, art. 2, Bill of Rights), leaves to the jury the issue of libel or no libel; and from this certain peculiar results logically flow and are recognized by the courts, to wit, that a defendant in a libel suit has two strings to his bow, the one the jury and the other the court, whereas the plaintiff has but one, and, if he succeed, must win a verdict from the jury. Stated in a different way, if the defendant can get either the court or the jury to be in his favor, he succeeds, while the prosecutor or plaintiff cannot succeed unless he gets both the court and the jury to decide for him. From this condition of things it further follows that the court may direct a nonsuit, but cannot coerce a verdict for plaintiff. Heller v. Pultizer Pub. Co., 153 Mo. 205, 54 S. W. 457; Duncan v. Williams, 107 Mo. App. 539, 81 S. W. 1175; Banks v. Henty, L. R. 7 Appeals Cases (House of Lords) 741. In the case at bar the court forced a nonsuit, and the question here is the correctness of that action of the court. In considering the matter certain settled propositions of law may be assumed as postulates, thus:

First. A libel differs from a slander, in that a publication may be libelous when, if spoken orally, it would not be slanderous. Nelson v. Musgrave, 10 Mo. 648; Price v. Whitley, 50 Mo. 439; Hermann v. Bradstreet Co., 19 Mo. App. 227; Månget v. O'Neill, 51 Mo. App. 35. This distinction is said by the books to be based upon the grounds that a vocal utterance does not import the same quality of deliberation, and is more prone to be the ebullition of fleeting passion, mere effervescence or lack of mental equipoise, and to be accepted as indicative of feeling, rather than of conviction, and, therefore, not so much gravity is allowed to it as to words deliberately written down and published; the latter justifying the inference that they are the expression of settled conviction and affect the public mind correspondingly. So, too, an oral charge merely falls upon the ear, and the agency of the wrongdoer in inflicting injury comes to an end when his utterance has died on the ear, but not so with the written or printed charge, which may pass from hand to hand indefinitely, and may renew its youth, so to speak, as a defamation as long as the libel itself remains in existence, and hatch a new crop of slanders, to be blown hither and yon like thistledown at every sight of the libel, so that a printed slander, when published, takes a wider and more mischievous range than mere oral defamation, and is more reprehensible in the eye of the law. Cooley on Torts (2d Ed.) 240; Odgers on Lib. & Sl. (2d Ed.) 3; Dexter et ux. v. Spear, 4 Mason, 115, Fed. Cas. No. 3.867. Thus, for instance, to Dublish of a man that he is a "skunk" (Mas

suere v. Dickens, 70 Wis. 83, 35 N. W. 349), a "swine" (Solverson v. Peterson, 64 Wis. 198, 25 N. W. 14, 54 Am. Rep. 607), a “drunkard,” a "cuckold," a "tory" (Giles v. State, 6 Ga. 276), "I look on him as a rascal" (Williams v. Karnes, 4 Humph. 9), "an imp of the devil and a cowardly snail" (Price v. Whitley, 50 Mo. 439), or that he has been "in collusion with ruffians" (Snyder v. Fulton, 34 Md. 129, 6 Am. Rep. 314), are each and all libelous.

Second. Not only do words which are slanderous per se become libelous per se when printed and published, but, because of the distinction between libel and slander heretofore noted, many words which would not be slanderous per se become libelous per se when printed and published. Cooley on Torts (2d Ed.) p. 240.

Third. Being a commercial people, and credit being of the lifeblood of commerce, our law has ever had a tender regard for merchants or traders and therefore a false publication impairing the credit of a merchant or trader, by importing insolvency, dishonesty, or trickery touching their trade or occupation, is held libelous per se, the malice being supplied by implication of law; and though special damages may be, yet they need not be, alleged and proved. Newell on Sl. & Lib. (2d Ed.) p. 74; Mitchell v. Bradstreet, 116 Mo., loc. cit. 239, 22 S. W. 358, 724, 20 L. R. A. 138, 38 Am. St. Rep. 592; Minter v. Bradstreet, 174 Mo., loc. cit. 486, 73 S. W. 668. Thus, for instance, to falsely publish of a brickmaker that "he is in the hands of the sheriff" (Hermann v. Bradstreet Co., 19 Mo. App. 227); of a trader that "we know Sullivan very well and firmly believe that he has misinstructed his St. Louis bank here in order to make interest on your money. We sincerely hope, for your own good and ours, too, that you will never have any more to do with Sullivan when the business has to come through our hands, as we do not like his business methods, and we are afraid to deal with him" (Sullivan v. Com. Co., 152 Mo. 268, 53 S. W. 912, 47 L. R. A. 859); to falsely publish of a commercial firm that it has "assigned" (Mitchell v. Bradstreet Co., 116 Mo. 236, 22 S. W. 358, 724, 20 L. R. A. 138, 38 Am. St. Rep. 592), to falsely publish of merchants that "the opinion is expressed that a local bank has been secured," and that "their present condition is not regarded as particularly flattering and seems to suggest cash dealings" (Minter v. Bradstreet Co., 174 Mo. 444, 73 S. W. 668)— are each and all libelous per se.

Fourth. Where the alleged libel is claimed to bear a hidden or latent meaning, which can only appear from extrinsic circumstances, the complaint should set forth in prefatory allegations by way of inducement such extrinsic facts, and the libelous charge should be followed by an innuendo applying the words to the matter pleaded by way of inducement, and such innuendo should not be a forced but a reasonable construction and ap

plication of the words used. Legg v. Dunleavy, 80 Mo. 558, 50 Am. Rep. 512; Townsh. on S. & L. (4th Ed.) § 335 et seq. For example, in Bank v. Henty, supra, decided by the House of Lords, H. & Sons, brewers at Chichester, had a squabble with the manager of a certain bank, and as a result thereof issued a printed circular to their tenants and customers, who knew nothing of the squabble, to the effect that they, H. & Sons, would not receive payments in checks drawn on any branch of the bank, and where the meaning ascribed to the circular by the innuendo was "that the plaintiffs were not to be relied on to meet the checks drawn on them, and that their position was such that they were not to be trusted to cash checks for their customers," a run was made upon the bank, and it sued H. & Sons for libel. The jury disagreed at the first trial, and an issue of law was then raised as to whether the circular was libelous, and whether, on the pleadings, the court ought not to give a judgment for defendants, and it was said: "In construing the words to see whether they are a libel, the court, where nothing is alleged to give them an extended sense, should put that meaning on them which the words would be understood by ordinary persons to bear, and say whether the words so understood are calculated to convey an injurious imputation.” It was held that no imputation of a libelous tendency, as, for instance, insolvency, could be reasonably inferred from the matter complained of, and judgment was given for defendants. The correct rule in construing words seems to be that they are to be taken, not in mitiori sensu, but in their fair English meaning; that if the meaning is fairly ambiguous, and one allowable meaning is libelous, the case may go to the jury. If, however, the meaning is unambiguous, and will not reasonably admit of a libelous construction, the question is for the court. Odgers on Lib. & Sl. (2d Ed.) 94 et seq.; Newell on Sl. & Lib. (2d Ed.) p. 290, § 4. Applying this latter principle it was held in Zier v. Hofflin, 33 Minn. 66, 21 N. W. 862, 53 Am. Rep. 9, that the following was not libelous on its face: "Wanted-E. R. Zier, M. D., to pay a drug bill." And it has been held that the publication of a foreclosure advertisement, under a trust deed that had been satisfied, which advertisement narrated that the bond was past due and unpaid, was not libelous, without proof of special damages. Spurlock v. Lombard Inv. Co., 59 Mo. App. 225.

Applying the foregoing principles of law to the pleadings and facts of this case, we see that the words of the news item in hand, in and of themselves, bear no libelous sting or edge. We see, further, that by way of innuendo it was averred that the words meant that plaintiff had sold his business and stock of cigars for the nominal consideration of $1 to Miss Handschiegel. Here it 88 S.W.-5

is contended that these words impute insolvency or dishonest trickery in a business way. But by this contention of appellant it is sought to enlarge the meaning of the words as set forth in the innuendo, which he may not do. 13 Ency. Pl. & Pr. p. 55; Townsh. on S. & L. § 338. If appellant desired to attribute such a meaning to the words, he should have so framed his innuendo. But, waiving that, if it be admitted by way of strained construction and arguendo that the words impute insolvency, yet under the evidence appellant was shown to be insolvent at the time of the publication, and the truth is a defense in libel. Rev. St. 1899, § 636. And a charge of insolvency is fully met by proof of the fact. See Mitchell Case, 116 Mo. 226, 22 S. W. 358, 724, 20 L. R. A. 138, 38 Am. St. Rep. 592; Minter Case, 174 Mo. 444, 73 S. W. 668.

Again, if appellant be allowed to go outside his innuendo in attributing a meaning to the words, then do the words by fair construction bear a meaning of a charge of dishonest trickery in a business way? It seems to us not. Many reasons fair on their face might be given for a nominal consideration in a transfer, and all of them harmless. For example, if a transaction be a private business dealing, it might be dealt with throughout as such, and the parties thereto not care to advertise the true consideration. Again, a nominal consideration is the usual method of indicating that there are other considerations which are not mentioned; the consideration of a contract being always open to explanation, and the expression of a nominal consideration being a sign and notice to all outsiders interested in the transaction that it is not the true one, and that inquiry should be made of the contracting parties, if knowledge of the facts be desired. A dealer desiring to defraud his creditors would not naturally blazon the fact abroad that he had sold out for $1; for that would be an open invitation to challenge the transfer, so that, to our mind, a charge of fraud or trickery cannot be fairly imputed as a meaning to the item published, and, even if the innuendo had been broad enough to include such charge, no damages would likely result to plaintiff from the harsh and unnatural conclusion placed on the publication by those of his intimate friends who testified. The loans of money sought for, if refused on account of the publication, in no wise damaged plaintiff. His business had got beyond help from makeshifts of that sort, and the small loans, if consummated, would have only benefited existing creditors and transferred the ultimate damage, not to plaintiff, but to the confiding friends who continued to trust him in the desperate straits he was in.

Perceiving no error, the judgment is affirmed. All concur, except MARSHALL, J., not sitting.

A deed conveyed the title to the grantee on condition that the land should not be liable for any debts of the grantee then existing, or that he might contract during a specified number of years, and that the grantee should have no right to incumber or dispose of the land for a certain period except to dispose of it by will. Held, that a spendthrift trust was not created, there having been no trust estate, the grantee not having been limited to the enjoyment of the income, his right not being limited to support, he having taken an absolute fee and having had the right of possession. 3. DEED-NATURE OF ESTATE.

Where a deed granted, bargained, sold, and transferred the land to the grantee, but provided that the conveyance was made on condition that the land should not be liable to any debts of the grantee then existing or contracted during a specified period, and that he should have no right to sell or incumber the land for a certain period except to dispose of it by will, the grantee took a fee, and the other provisions were void as repugnant thereto.

4. EJECTMENT EVIDENCE.

Where, in ejectment, plaintiffs claimed under an execution sale, and under the issues tendered by defendants, and conceded by plaintiffs the judgment under which the execution issued was alleged to be final judgment, it was incompetent for defendants to contradict them. 5. HOMESTEAD-SELECTION.

Rev. St. 1899, § 3617, provides that when an execution is levied on a homestead the homesteader shall have the right to choose the part to which his exemption shall apply. Held that, unless the sheriff gives the homesteader an opportunity to make his selection, the sale is void.

6. EXECUTION-SALE-SHERIFF'S DEED.

Rev. St. 1899, § 3617, provides that when an execution is levied on a homestead the

homesteader shall have the right to designate and choose the part of the land to which the exemption shall apply, and that proceedings with respect to the homestead shall be stated in the return to the execution. Held, that it is not necessary that the sheriff's deed contain the recitals which the statute requires the execution return to set out.

7. ACTION AT LAW.

In ejectment the defense was that the land involved, which was claimed by plaintiff under an execution sale, was the corpus of a spendthrift trust, in which the judgment debtor had been the beneficiary, but no affirmative relief was asked. Held, that the action was one at law, and not in equity.

8. APPEAL OBJECTIONS WAIVED.

Where a defendant failed to take any exception to the transfer of the cause to the equity docket, but acquiesced therein, and tried the cause as if one in equity, he could not complain of the transfer on appeal.

Appeal from Circuit Court, Jackson County; John W. Henry, Judge.

Action by Helen Kessner and others against Shelby Phillips and others. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

A. N. Adams, John N. Southern, and Scarritt, Griffith & Jones, for appellants. Paxton & Rose, for respondents.

MARSHALL, J. This is an action in ejectment, instituted on the 20th of September, 1899, to recover 70 acres of land in township 50, range 30, Jackson county, Mo. The petition is in the usual form, and the ouster is laid as of September 20, 1899. The action is against Phillips, the tenant in possession, and Joseph Lamertine Hudspeth, the owner. The defendants answered jointly. The answer is a general denial, coupled with a special defense particularly set forth, the substance of which is that the conveyance to the defendant Hudspeth of the land in controversy created a spendthrift trust, whereby said Hudspeth was prohibited from alienating the land, and whereby it was attempted to place the same beyond the reach of his creditors. The answer further sets up that in 1898 the plaintiff Kessner obtained a judgment for $5,000 against the defendant Hudspeth, under which the property in controversy was sold on execution and the plaintiffs became the purchasers thereof; and it is alleged that they thereby acquired no right, title, or interest in the same. The reply admits the conveyance to Hudspeth, but denies that it created such a trust; admits the judgment aforesaid, and the sale thereunder; and asserts that the plaintiffs obtained a good title to the property. Upon motion of the plaintiffs the case was transferred to the equity docket of the court "for the reason that defendants have filed an answer setting up an equitable defense, and the case is now triable by this court." It does not appear from the abstract of the record that the defendants objected thereto, or saved any exceptions to the ruling of the court. The trial court entered judgment for the plaintiffs for possession, 1 cent damages, and $20 monthly rents and profits. After proper steps, the defendants appealed.

The case made is this: Robert N. Hudspeth, the uncle of the defendant Joseph Lamertine Hudspeth, was the owner of the property. On the 13th of March, 1871, he executed his will, by which he devised all of his property, including that in controversy, to his brothers and sisters; that is, one undivided half to his brother Joel E. Hudspeth, and the other undivided half to his brothers George W. Hudspeth, Silas B. Hudspeth, and his sister, Malinda P. Bell, share and share alike. Thereafter, in March, 1885, Robert N. Hudspeth died; and afterwards, on June 15, 1885, his said brothers and his said sister made, executed, and delivered to the defendant Joseph Lamertine Hudspeth a deed to the property in question, being a part of the property devised to them, and which deed recited that, "in consideration of love and affection, and in pursuance to the verbal request of their brother Robert N. Hudspeth, now deceased, whose