The publication and circulation to sub scribers in daily reports of the execution of a chattel mortgage was not libellous; New bold v. J. M. Bradstreet & Son, 57 Md. 38, 40 Am. Rep. 426; contra, King v. Patterson, 49 N. J. L. 417, 9 Atl. 705, 60 Am. Rep. 622; nor was that of a copy of a judgment, with a note that the judgment was paid the same day ; 8 Ir. Rep. 349; but in a similar case when the judgment was so paid, but it was not so stated, the publication was held libel lous ; 16 rr. Rep. C. L. 298; and so also is a false publication of a trader that a judgment had been rendered ; 22 Q. B. 134. And where the action was for publishing that a judg ment had been rendered when only a verdict had been returned, it was held proper to ask a witness to the effect of such statement, whether if he had known the actual fact his conduct would have been the same; Hes sel v. Bradstreet Co., 141 Pa. 501, 21 At]. 659.
The burden of proof is upon the agency to show privilege prima facie, and after its character is established the burden is on the plaintiff to show malice; Erber v. R. G. Dun & Co., 12 Fed. 526; Ormsby v. Douglass, 37 N. Y. 477; and it is matter of law for the court to determine whether the matter published is libellous per se; Woodruff v. Bradstreet Co., 35 Hun (N. Y.) 16.
An action for libel may be brought by a person whose name is published in a book containing a list of delinquent debtors, dis tributed to subscribers, manifestly for coerc ing the payment of claims, who is denied credit because of such publication, or by one to whom a letter is sent in an envelope on which is printed the name of an association and a statement that it is an organization for the purpose of collecting bad debts ; Muetze v. Tuteur, 77 Wis. 236, 46 N. W. 123, 9 L. R. A. 86, 20 Am. St. Rep. 115.
A report of a mercantile agency, alleging that plaintiff had made a general assign ment for the benefit of creditors, is not leged, where it appears that plaintiff had assigned only to secure the endorsement of a note; Douglass v. Daisley, 114 Fed. 628, 52 C. C. A. 324, 57 L. R. A. 475; but if the mistake could not have been avoided by rea sonable care, the report is privileged, but if it was the result of carelessness, the privi lege is lost; id. Communications though made in good faith by a commercial agency to a subscriber containing defamatory state ments of plaintiff's character, are not privi leged; [1908] A. C. 390. A complaint that a mercantile agency report alleging that plain tiff's account with the bank was "not class ed as an entirely desirable one," and averred to be false and malicious, was held good on demurrer ; Mower-Hobart Co. v. R. G. Dun & Co., 131 Fed. 812.
Effect of fraudulent representations by vendee to agency upon vendor who relies up on them. An action for deceit will lie against persons or corporations making false representations of pecuniary responsibility to an agency in order to obtain credit and defraud those who may rely upon the re ports; Carroll Exchange Bank v. Bank, 50 Mo. App. 94 ; Eaton, Cole & Burnham Co. v. Avery, 83 N. Y. 31. 38 Am. Ren. 389. Tindilp v. Birkett, 171 N. T. 520, 64 N. E. 210, 89 Am. St. Rep. 822, reversing 57 App. Div. 450, 67 N. Y. Supp. 1017; Eaton, Cole & Burnham Co. v. Avery, 18 Hun (N. Y.) 44; in such action the statements falsely made to the agency are admissible, if relied on by the vendee ; Furry v. O'Connor, 1 Ind. App. 573, 28 N. E. 103; or if approved by him after being written out by the agency, but not if not known to the vendor until after the sale ; Robinson v. Levi, 81 Ala. 134, 1 South. 554 ;
Mooney v. Davis, 75 Mich. 188, 42 N. W. 802, 13 Am. St. Rep. 425. A contract for the sale of goods to the person making such sentations, who proves to be insolvent at the time of making them and of the sale, may be rescinded and possession of the goods re covered ; Mooney v. Davis, 75 Mich. 188, 42 N. W. 802, 13 Am. St. Rep. 425 ; Cook v. Har rington, 31 Mo. App. 199 ; Hinchman v. Weeks, 85 Mlch. 535, 48 N. W. 790; Lindauer v. Hay, 61 Ia. 667, 17 N. W. 98; Gainesville Nat. Bank v. Bamberger, 77 Tex. 48, 13 S. W. 959, 19 Am. St. Rep. 738 ; In re Epstein, 109 Fed. 874; it is enough if he had not reason able grounds for believing them to be true ; In re Roalswick, 110 Fed. 639 ; but where there were no representations other than those obtained by the agency from the seller, a fraudulent intent on the pait of the ven dee to use the agency as an instrument of fraud must be clearly shown ; Victor v. Hen lien, 33 Hun (N. Y.) 549; Dieckerhoff v. Brown (Md.) 2 Atl. 723; Macullar v. Mc Kinley, 99 N. Y. 353, 2 N. E. 9. The vendor may show that he refused to make the sale until he received the report of the agency, and the agent may show his business meth ods ; Hinchman v. Weeks, 85 Mich. 535, 48 N. W. 790. The right to rescind the sale is not affected by a refusal of ,the vendee to give further statements of his condition, as the original one is presumed to continue if not recalled by the agency ; Claflin v. Flack, 13 N. Y. Supp. 269; but if the vendee has made subsequent reports showing an impair ed responsibility, the vendor must take all the reports into consideration, and not only on the original one; but the vendee is not required to make subsequent reports unless he actually becomes insolvent or knows that he will soon be ; Cortland Mfg. Co. v. Platt, 83 Mich. 419, 47 N. W. 330 ; reports made six weeks before the sale may be relied on ; 20 Mo. App. 173 ; but not thOse made from five to seven months before ; Zucker v. Kar peles, 88 Mich. 413, 50 N. W. 373 ; Macullar v. McKinley, 99 N. Y. 353, 2 N. E. 9. A financial statement to a commercial agency is a continuing representation for a reason able time that the facts therein stated are true ; In re Kyte, 174 Fed. 867.
How affected by the statute of frauds. With respect to the liability of the agency for representations not made in writing when the liability was contested, on the ground that the contract was within the statute of frauds, there is not a satisfactory result to be found in decisions; but it has been held, that the action was upon the original con tract with the customer, which was by no statute required to be written; U. C. 39 Q. B. 551; (reversed on other points and dotibt ed ou this ; 1 Ont. App. 153 ;) and also that the action was sustainable on the original contract to furnish accurate statements, in response to inquiry respecting any persons; Sprague v. Dun, 12 Phila. (Pa.) 310.
No remedy in, equity against publication. An injunction will not be granted to restrain the agency from the publication of matter injurious to the standing of the plaintiff, there being no jurisdiction in equity unless there is a breach-of trustor or contract in volved; Raymond v. Russell, 143 Mass. 295, 9 N. E. 544, 58 Am. Rep. 137; Burwell v. Jackson, 9 N. Y. 544.
See LIBEL; PRIVILEGED COMMUNICATION.