1803. DUTTON entered into by the parties, and from the argument, that the Plaintiff is premature in his action for goods sold and delivered before the expiration of the two months. I was inclined at first to hope that we might hold the Plaintiff at liberty to recover on SOLOMONSON, this count, as if there had been no special agreement. If goods be sold and delivered without any special agreement, the law implies a general undertaking to pay for the goods, on which in indebitatus assumpsit will lie. It appeared to me, that if the special agreement in this case, could be considered as a collateral agreement, the Plaintiff might still be entitled to recover on the general counts; for, if the transaction between the parties could be considered as a contract for the sale of goods, with this condition, that if the purchaser would give a bill at two months he should have two months' credit; then, as the condition had not been complied with, the Plaintiff might be remitted to his original right of action for goods sold and delivered. All the cases cited are of this sort. In Stedman v. Gooch there was an antecedent debt due from the Defendant to the Plaintiff before the latter received the promissory notes, which proved of no value. Before the transaction respecting the notes took place there was a complete subsisting contract, under which the Defendant was bound to pay immediately; after this he obtained further time on giving the promissory notes, and as the condition on which the time was given was not performed, in consequence of the notes turning out to be of no value, Lord Kenyon thought that the Plaintiff was entitled to maintain his action for goods sold and delivered. The cases of Puckford v. Murwell, 6 T. R. 52. and Owenson v. Morse, 7 T. R. 64. are of the same species. It appeared to me that the conduct of the Defendant might perhaps be considered in the nature of a fraud. If a man prevail upon another to deliver goods to him upon an undertaking to do something else as a satisfaction for the price of the goods, and afterwards refuse to perform his part of the agreement, there seems to be no injustice in holding, that he has repudiated the contract by refusing to comply with its conditions, and that the law may infer an undertaking to pay for the goods which he has received; and certainly considerable inconvenience may arise from the contrary doctrine; for, if a vendor be bound to bring an action on the special undertaking, his remedy will not be so effectual as if he bring his action for goods sold and delivered, because in such case the Defendant cannot be holden to bail without a Judge's order. These 1803. DUTTON These were the impressions on my mind when the point was first started, and I should have been glad if the law would have warranted me in giving them effect. Indeed, the same arguSOLOMONSON. ments seem to have weighed with Lord Ellenborough, in the case of Mussen v. Price, who accordingly there delivered his opinion in favour of the Plaintiff. But the decision in that case governs the present, the majority of the Judges having there, determined, that the action could not be commenced before the expiration of the period which the bills had to run. Whatever doubts therefore I may have entertained respecting the rule which ought to be adopted, I cannot set up my judgment against a decision of the Court of King's Bench, which is precisely in point. It was said, indeed, in that case, that at the expiration of the period which the bills had to run an action of indebitatus assumpsit would lie. But I should recommend to any person bringing his action under such circumstances, to declare on the special agreement as well as on the general count, for I entertain great doubts whether, even at the end of the two months, an indebitatus assumpsit will lie, if it does not lie before the expiration of that period. If this matter had been res integra, I should have agreed in the opinion delivered by Lord, Ellenborough, that the action was properly conceived, but the law being once settled, no material inconvenience can result from adhering to the rule which has been laid down. My Brother Rooke, who ruled otherwise at Lancaster is perfectly satisfied with the decision of the Court of King's Bench, and my Brother Chambre, previous to the case of Mussen v. Price, had ruled the same point at York in the same way as the Court of King's Bench have decided. My two Brothers, therefore, both now, concur in that opinion, and we all think that a nonsuit must be entered. 1 Rule absolute. 1803. THIS Nov. 26th. Although a master be not the truth of a for the characpersonapplying ter of his servant, yet if he officiously state any trivial misservant to a conduct of the former master in order to prevent him giving a second then himselfupon application give the servant a bad chatruth of which character, and for a character racter, the ROGERS v. Sir GERVAS CLIFTON, Bart.. HIS was an action on the case. The first count of the declaration stated, that the Plaintiff, before the committing the grievance, &c. had been retained and employed in the service of the Defendant as his butler and servant, and in that capacity had behaved with due integrity, good temper, activity, and ci by vility, and never was suspected to have been bad-tempered, lazy, or impertinent, by means whereof the Plaintiff had not only gained the good opinion of his neighbours, but had supported himself, and would thereafter have supported himself by his industry in the service of his master, had not such grievances been committed as thereinafter mentioned; and that the Plaintiff at the time of such grievances had quitted the Defendant's service, and had been recommended to, and was likely to be retained and employed by and in, the service of one William Hand, clerk, for certain wages to be paid to him; yet that the Defendant well knowing, &c. but contriving, &c. to injure the Plaintiff in his character, and to bring him into public scandal among his neighbours, and particularly with the said William Hand, and to cause it to be suspected and believed that the Plaintiff was not fit to be employed as a servant, and that he was bad tempered, and a lazy and impertinent fellow, and thereby to pre vent the said William Hand from retaining and employing him in his service, as he otherwise might and would have done, and to vex, harass, &c. falsely and maliciously did compose and pub- against him by lish a certain false and scandalous libel of and concerning the said Plaintiff as such servant as aforesaid, containing amongst other things certain false and malicious matter concerning him as such servant as aforesaid, in substance as follows; that is to say, "He" (meaning the Plaintiff)" is a bad-tempered, lazy, impertinent fellow; thereby meaning that the Plaintiff was not fit to be employed in the capacity of a servant. The second count was also for publishing a libel containing the following words, "that he, the Defendant wished he had never taken the Plaintiff into his house, as he was a bad-tempered, lazy, and impertinent fellow." The third count stated, that before the committing the grievances, &c. the Plaintiff had been retained and employed by and in the service of one Mr. Holland as his ser And see M'Dougall v. Claridge, 1 Campb. 267. Hodgson v. Scarlett, 1 B. & A. 232. Home v. Bentinck, 2 B. & B. 130, 135. he is not able to prove, the jury may from stances infer malice against these circum the master in an action the servant. vant, 1803. ROGERS. V. CLIFTON. vant, and had quitted such service; and the Plaintiff, from the time of the committing such grievances, being out of place and unemployed, the said Holland would, had not the grievances thereinafter mentioned been committed, have given to any person applying to the said Holland for a character of the Plaintiff, such a true and correct character as might have induced such persons to have retained and employed the Plaintiff as a servant; yet the Defendant knowing, &c. but contriving to injure the Plaintiff, and to induce the said Holland not to give him such a character as aforesaid, and thereby to impoverish and wholly ruin the Plaintiff, on the day aforesaid sent to desire the said Holland not to give the Plaintiff a character for that he was a lazy, impertinent fellow; by means of which premises the said Holland was induced not to give, and to refuse to give the Plaintiff a character; in consequence whereof the Plaintiff was unable for a great length of time, to wit, &c. to induce or prevail upon any person to retain or employ him as a servant, and was thereby greatly impoverished and injured, &c. to his damage of 500/. The Defendant pleaded not guilty. 1 This cause came on to be tried before Lord Alvanley, Ch. J. at the Guildhall sittings after last Trinity term, when the following facts appeared in evidence. The Plaintiff having been hired as a servant by the Defendant, lived about six months in his service, when the latter turned him away without giving him a month's warning, in consequence whereof the Plaintiff, conceiving himself entitled to a month's wages, refused to quit the service without being paid that sum. On this refusal the Defendant procured an officer from the police office to put the Plaintiff out of the house, and employed his attorney to settle his wages with him. Immediately after this the Defend ant, who was going into the country, called on Mr. Holland, with whom the Plaintiff had previously lived, to inform him that the Plaintiff had behaved in an impertinent and scandalous manner; that he the Defendant had discharged him from his service, when the Plaintiff refused to go without a month's wages; and he therefore desired Mr. Halland not to give him another character. While the Defendant was in the country the Plaintiff offered himself to a Mr. Hand, stating that he had lately lived with the Defendant, upon which Mr. Hand wrote to the Defendant for a character, and received the following answer: Sir, "In answer to yours which came to hand yesterday, beg leave to acquaint you that Thomas Rogers did not live with me six months, as he has told you, and wish I had never taken him into my house, as he is a bad-tempered, lazy, impertinent fellow, and has given me a great deal of trouble, as 1 was obliged to send an offiser from the Marlbro'-street police office to put him and his things out of my house, and also to employ Mr. Barnet my attorney of Soho Square, to settle his wages, as I look upon it he will take any advantage he can. “I am, Sir, yonr most obedient humble servant, "Gervas Clifton." Upon receipt of this letter Mr. Hand refused to take the Plaintiff into his service. It appeared that Mr. Holland never was applied to for a character of the Plaintiff after the communication made to him by the Defendant, and Mr. Holland stated, that without such communication he should have declined giving another character to the Plaintiff. The Plaintiff also proved by servants of the family, that while in the Defendant's service he had conducted himself well, and that no complaints of the nature ascribed to him in the Defendant's letter had all that time existed. The jury found a verdict for the Plaintiff with 201. damages, but liberty was reserved to the Defendant to move to have a nonsuit entered. Accordingly a rule nisi having been obtained on a former day, Shepherd and Williams Serjts, now shewed cause. It may be admitted as a general proposition, that where words are spoken or written by a master of a'servant, or communicated in confidence, no action can be maintained for such words, though, under other circumstances, the words would be actionable; for in such cases the situation of the party speaking or writing rebuts the inference of malice. To this extent only proceed the cases of Edmonson v. Stevenson, Bull. N. P. p. 8., and Weatherston v. Hawkins, 1 T. R. 110. But if it appear, from the circumstances of the case, that the words were maliciously spoken or written, then an action lies against the master; for then he does not fall within the principle of the exception, which exempts a master from the same liabilities as other persons, on account of the occasion which induces them to speak or write respecting the character of servants and the motives which are suffered to influence their conduct. Had nothing appeared in 1803. ROGERS 9. CLIFTON |