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taken and conducted by him merely for the -one in the federal court, having for its purpose of enabling the plaintiff to dispose purpose to be adjudged a bankrupt, his asof some old fixtures; business was conduct- sets administered upon, and to be discharged ed at a loss; that the plaintiff was in a of his debts, and the other this suit against failing and insolvent condition at the time respondent for $10,000 damages for libel. of the publication, and was not injured; It is admitted in the pleadings, and estabthat as soon as the defendant learned that lished by the proof, that respondent on Febthe bill of sale was in fact executed, not for ruary 3, 1902, printed and published the mata consideration of $1, but for $700, it at once ter complained of, and that it was correct in published a correction of said error."
all details, except that the consideration The reply was in usual form.
was printed as $1, when it should have been The facts are as follows: Ukman, having $700; and it was shown that three weeks gathered experience by connection with to thereafter appellant complained to respondbacco concerns for several years, in 1900 ent of the mistake in the publication, and it commenced business in a venture of his own was at once corrected and published in corunder the name and style of the A. G. Uk-rect form for two successive days. It was man Cigar Company with a present capital furthermore proved that the Daily Record of $600, and thereafter did a wholesale cigar is a newspaper devoted to the gleaning and business, first at 805 North Fourth street, publication of facts from the current recand then at 409-411 Morgan street. In No- ords, possibly of the courts, but certainly of vember, 1901, he started a retail cigar store | the records kept by the recorder of deeds of at 612 Chestnut, and seems to have moved the city of St. Louis, as news, and, morebis wholesale business there and to have over, that it had a list of subscribers of from conducted it in the rear of that stand. Prior 1,200 to 1,300 in and about St. Louis, who to starting his retail store, and preparatory were lawyers and real estate and business thereto, and thereafter, up to and inclusive
Between February 1 and March 21, of December, 1901, he bought goods on cred- 1902, appellant sold $700 worth of his reit in the East to the rise of $4,000. It seems maining goods, and was left with a stock the retail store was conducted at a loss dur- valued at $300 and $200 or $300 in uncoling November and December, 1901, and Jan- lected accounts when he went into bankuary, 1902, and his evidence was to the ef- ruptcy, claiming and was allowed the stock fect that the wholesale department (during on hand as exempt, and turning over said said period, at least) showed a small month- account to the trustee. At the date of bankly increment of profit, say from $75 to $100. ruptcy none of his Eastern indebtedness was The amount of loss in the retail department due, and it all remained unpaid. He had, is not shown by the record, nor is it shown however, paid off possibly his confidential how the accounts of the two departments and personal debts and all his local business were kept in order to arrive at the afore- debts, except a few small bills which were said gain; that is to say, the rents, taxes, overdue and unpaid to the amount of $200 licenses, living and other expenses, and out- or $300. There was no evidence that any goes are not pointed out or apportioned be- cigars were stopped in transit as alleged in tween the wholesale and retail departments, the petition. There was evidence that he and are wholly left to conjecture. It is cer- was refused credit in the East, but there tain from Ukman's testimony that his affairs was no evidence that the Daily Record was on February 1, 1902, were radically embar- circulated there, or that any of his Eastern rassed. At what precise time he had ap- creditors saw the publication in question, or proached the brink of insolvency may only that his line of credit there was weakened be guessed at, but on that day he had fallen thereby. On this head it may be said, in over the brink and was entirely insolvent; passing, that suits were brought by appelfor he owed over $4,000 mercantile debts in lant against Dun's and Bradstreet's Mercanthe East, and possibly some confidential tile Agencies, presumably based on publicadebts at home; and the evidence indicates tions made by them affecting his standing in that he owed some small business debts commercial circles at large. there also. He had in assets, as near as we It was shown that appellant bought very can ascertain, $1,000 of goods and fixtures little, if any, in St. Louis, and it was not in his wholesale department, plus the goods shown that his buying credit in St. Louis and fixtures in his retail department. On was affected one way or the other. That he that date he sold his retail store to Miss had been in the habit of borrowing small Handschiegel for $700—half cash in pocket, sums from a limited circle of local acquainand half on time, the deferred payments be- tances to tide over matters and pay overdue ing evidenced by paper, subsequently dis- bills is shown, and also that this custom incounted by him and realized on; said trans- creased somewhat immediately before the fer being evidenced by a sale bill stating the publication in question; and it was testitrue consideration and spread of record. He fied by appellant that he had applied to some then moved his wholesale department to the of his local friends after the publication and International Bank Building, and conducted had been refused credit. Appellant testified a wholesale business at that stand until he had a line of credit with one Goldman, March 21, 1902, when he filed two petitions with one Kaminsky, with one Friedman, with Ede Graber, with one Alt, and with one Gar- with witness; that he had loaned him monfade, from whom severally he had borrowed ey every three or six months in modest call sums on short time prior to the publica- amounts, and had taken bis unsecured notes, dob; that a short time after the publication, which had always been paid on time; that say two weeks, he tried to borrow from Gra- two weeks after the publication appellant ber, Alt, Grafingle, and Friedman for the pur- tried to borrow $500 of witness, which he reose of paying debts, but whether he succeed- fused, for the reason that he had seen in ed or not he does not say. Called on to ex- the St. Louis Daily Record he had sold out pain what had become of his assets, he tes- for $1, and witness thought that appellant tised that he was losing money because he wanted to cheat his creditors and had failed. cald not take the road to sell goods, and When he saw appellant after the publication, that be bad fallen behind as much as $1,500 he told him about it, and appellant explained
aaount of sickness in his family; but to witness that he had sold out for $700, but sten these expenses on account of sickness witness had it in his mind that he did not orurred the record does not enlighten us. want to trust him any more; that the idea
Appellant called Friedman, Alt, Garfingle, conveyed to witness' mind by what he read and Hiram B. Morse, publisher of the St. in the Daily Record was the appellant had Louis Daily Record and president of the re- failed, and had turned over his property, so spondent company, to the stand. By Fried- that his creditors could not touch it. By mean be proved that his credit was very good Hiram B. Morse, among other things, it was prior to the 3d day of February, 1902; that proved that he was the business manager and Fitness had loaned him at divers times sun- president of respondent company; that he dry small amounts, which bad always been was familiar with the way considerations promptly repaid; that he had not seen, but are stated in deeds, and had noticed statebad beard of, the publication in question, and, ments where the consideration was $1 on ben asked what he understood by the words many occasions; that when the consideraof the alleged libel, said that he understood tion is stated at $1 in a bill of sale, witness by those words "that plaintiff naturally want. would understand that the parties do not care a to defraud everybody, and he would nat- to tell what the exact amount was, and their urally put it that way to a business man." reasons for not doing so are as various as On cross-examination witness said he had the individuals. Witness understood that the sold appellant goods on credit and that he $1 mentioned does not respresent the exact Taid nicely right along." Being pressed, value of the goods transferred; had never bowever, he admitted he had never sold ap- known an instrument where $1 was used as pellant any goods “directly,” but said he had the consideration where the value of the Directly.” Further pressed, he explained goods conveyed was represented as that sum ; edirectly to mean that he had sold goods
would not infer that a man was giving away to appellant's brother. He further stated bis property simply because the consideration that he had never heard of “a dollar" consid- was $1; would not understand from such eration, when it did not mean that it was the publication that the party selling out was disreal consideration in a business transaction; posing of his property to defraud his credttat at the times he had made loans to appel- itors; would never understand it that way. lant be bad made no inquiries into his finan- This witness further testified that he did not cial condition, bad taken no security for the see the publication on the morning it was loans; and that appellant had told him at published; that his attention was called to it these times that he had to pay bills, and was some 20 days later through one Wurtz, conshort of money, and was not able to meet nected with respondent's office, whose attenbis bills, and wanted the money until he tion had been called to it by Ukman; and made collections. By Alt it was shown that that thereupon the item was republished corbe was appellant's physician; that his credit rectly for two successive days, stating the was good for small sums; that he had ad- consideration at $700. ranced him such sums without note or securi- As respondent introduced no evidence on its ty during the year previous, and had been answer, the affirmative allegations appearing repaid; that about two weeks after the pub- therein relating to the custom of the recorder lication appellant came to witness and in- of deeds in furnishing respondent memoranda quired if he had any money, and witness re- of transfers recorded in said office, and in not plied that he did not have any. On being permittting respondent to search the records asked his reason for this reply, his answer for itself, and in requiring respondent to take was that he had lost confidence in appellant, its information from an agent of the recordbecause he had heard that he had sold out er, and that an agent furnished respondent a for $1. On cross-examination witness said memorandum under the head of "Bills of that the last loan he had made before Feb- Sale” of the exact character published, were ruary 3, 1902, was $100; that it was a "strict not proved. It will be noted, also, that apconfidential loan accommodation"; that he pellant does not ask for punitive damages; as a friend of Ukman, but took no interest the amount of no smart money demanded be's bim; made his loans for accommodation, ing stated separately, as required under secand not "as business at all.” By Garfingle it tion 594, Rev. St. 1899. was sbows that appellant's credit was good 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 decide for bim. 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, Ted. Cas. No. 3,867. Thus, for instance, to :ublish 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 (20 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. Dun- is contended that these words impute inlary, SO MO. 558, 50 Am. Rep. 512; Townsh. solvency or dishonest trickery in a business e S. & L. (4th Ed.) § 335 et seq. For ex- way. But by this contention of appellant it ample, in Bank v. Henty, supra, decided by is sought to enlarge the meaning of the the House of Lords, H. & Sons, brewers at words as set forth in the innuendo, which Chiebester, had a squabble with the manager he may not do. 13 Ency. Pl. & Pr. p. 55; of a certain bank, and as a result thereof Townsh. on S. & L. § 338. If appellant deissued a printed circular to their tenants and sired to attribute such a meaning to the customers, who knew nothing of the squab- words, he should have so framed his inble, to the effect that they, H. & Sons, would nuendo. But, waiving that, if it be admitted not receive payments in checks drawn on any by way of strained construction and arbranch of the bank, and where the meaning guendo that the words impute insolvency,
3cribed to the circular by the innuendo was yet under the evidence appellant was shown "bat the plaintiffs were not to be relied on to be insolvent at the time of the publicato meet the checks drawn on them, and that tion, and the truth is a defense in libel. their position was such that they were not Rev. St. 1899, § 636. And a charge of into be trusted to cash checks for their cus- solvency is fully met by proof of the fact. tomers," a run was made upon the bank, See Mitchell Case, 116 Mo. 226, 22 S. W. 358, and it sued H. & Sons for libel. The jury 724, 20 L. R. A. 138, 38 Am. St. Rep. 592; disagreed at the first trial, and an issue of Minter Case, 174 Mo. 444, 73 S. W. 668. lax was then raised as to whether the cir- Again, if appellant be allowed to go outside chiar was libelous, and whether, on the his innuendo in attributing a meaning to the pieadings, the court ought not to give a words, then do the words by fair construcjodgment for defendants, and it was said: tion bear a meaning of a charge of dishonest **In construing the words to see whether they trickery in a business way? It seems to us are a libel, the court, where nothing is al- not. Many reasons fair on their face might lezed to give them an extended sense, should be given for a nominal consideration in a pot that meaning on them which the words transfer, and all of them harmless. For would be understood by ordinary persons to example, if a transaction be a private busibear, and say whether the words so under- ness dealing, it might be dealt with throughstood are calculated to convey an injurious out as such, and the parties thereto not care imputation." It was held that no imputa- to advertise the true consideration. Again, tion of a libelous tendency, as, for instance, a nominal consideration is the usual method insolvency, could be reasonably inferred from of indicating that there are other considerathe matter complained of, and judgment was tions which are not mentioned; the considgiren for defendants. The correct rule in eration of a contract being always open to construing words seems to be that they are explanation, and the expression of a nominal to be taken, not in mitiori sensu, but in their consideration being a sign and notice to all fair English meaning; that if the meaning outsiders interested in the transaction that is fairly ambiguous, and one allowable mean- it is not the true one, and that inquiry should ing is libelous, the case may go to the jury. be made of the contracting parties, if knowlH, however, the meaning is unambiguous, edge of the facts be desired. A dealer desirand will not reasonably admit of a libelous ing to defraud his creditors would not natconstruction, the question is for the court. urally blazon the fact abroad that he had Odgers on Lib. & Si. (2d Ed.) 94 et seg.; sold out for $1; for that would be an open Newell on Sl. & Lib. (2d Ed.) p. 290, § 4. invitation to challenge the transfer, so that, Applying this latter principle it was held to our mind, a charge of fraud or trickery in Zier v. Hofilin, 33 Minn. 66, 21 N. W. 862, cannot be fairly imputed as a meaning to the 33 Am. Rep. 9, that the following was not item published, and, even if the innuendo libelous on its face: "Wanted-E. R. Zier, had been broad enough to include such U. D., to pay a drug bill.” And it has been charge, no damages would likely result to beld that the publication of a foreclosure plaintiff from the harsh and unnatural conadrertisement, under a trust deed that had clusion placed on the publication by those been satisfied, which advertisement narrated of his intimate friends who testified. The that the bond was past due and unpaid, was loans of money sought for, if refused on Dot libelous, without proof of special dam- account of the publication, in no wise damages. Spurlock v. Lombard Iny. Co., 59 Mo. aged plaintiff. His business had got beyond App. 225.
help from makeshifts of that sort, and the Applying the foregoing principles of law small loans, if consummated, would have to the pleadings and facts of this case, we only benefited existing creditors and transsee that the words of the news item in hand, ferred the ultimate damage, not to plaintiff, in and of themselves, bear no libelous sting but to the confiding friends who continued Op edge. We see, further, that by way of to trust him in the desperate straits he innuendo it was averred that the words
was in. Deant that plaintiff had sold his business Perceiving no error, the judgment is afand stock of cigars for the nominal consid- firmed. All concur, except MARSHALL, J., ezation of $1 to Miss Handschiegel. Here it not sitting.
A. N. Adams, John N. Southern, and Scar. ritt, Griffith & Jones, for appellants. Paxton & Rose, for respondents.
KESSNER et al. v. PHILLIPS et al. (Supreme Court of Missouri, Division No. 1.
May 24, 1905.) 1. SPENDTHRIFT TRUSTS.
Spendthrift trusts are recognized in Missouri. 2. SAME-CREATION.
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 en: joyment 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, 8 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 ejectinent 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 eq. uity 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.
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 de fense, 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 Varch, 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