a blank rating purported to be explained and | words published were held not to be actionmodified by the said explanatory statement able per se. The questions asked in the published in said key is that the person so sixth, eighth, and fourteenth bills of excep rated blank is worthless as to his financial tion were: (1) "State whether the publicacondition, untrustworthy as to his character, tion in Bradstreet's Daily Sheet of Changes, and utterly unworthy of credit in any com- which has been offered in evidence, had any mercial transaction, cause the publication effect on your business?" (2) "State whether of the plaintiff's name in said book or list the publication of the words mentioned had of commercial ratings with a blank rating any effect on your mercantile credit?" (3) as aforesaid, meaning and intending to pub- "State what would be the effect on a merlish the plaintiff as a person who is worth-chant's credit to give a mortgage on his chatless as to his financial condition, untrust- tels?" Judge Alvey, in disposing of these worthy as to his character, and utterly un-exceptions, said: "All proof therefore of genworthy of credit in any commercial trans-eral damage, such as that stated in the action. * That the publication of sixth, eighth, and fourteenth bills of excepthe said libel has utterly destroyed the cred- tion, was properly excluded. It could only it which the plaintiff has heretofore enjoy- have been offered in case the libel were aced, and has caused many other persons, tionable per se; but not when it is only firms, and corporations from whom the plain-actionable with respect to such special damtiff has been purchasing goods to demand age as may he alleged." And in passing on immediate payment of the balance due them, another exception in the case he said: "The and to refuse to sell the plaintiff goods up- special damage must be proved as laid, and on the usual terms of credit heretofore al- if the special damage is alleged to consist in lowed, so that the plaintiff, who but for the the refusal of a third person to deal with publication of said libel would be in a better the plaintiff, or to give him credit, or in the condition financially than he has ever been, action of any third person in enforcing obis seriously injured in his business, and has ligations, evidence is not admissible of the suffered and will suffer a heavy loss and declarations of such third person as to his damage in the prosecution thereof; and that reason or motive for so acting, the third said business has been worth more than $10, person himself must be called to prove the 000 per annum to the plaintiff for a long motive." period."

The damages alleged in this case are that the publication "has entirely destroyed the credit which the plaintiff has heretofore en

The rule is that where the alleged libel is not actionable per se, but is made actionable by reason of some special damage suf-joyed, and has caused many of the persons, fered by the plaintiff in consequence of the publication, the special damage must be explicitly stated in the declaration and strictly proved at the trial.

is

firms, and corporations from whom the
plaintiff has been purchasing goods to de-
mand immediate payment of the balance due
them, and to refuse to sell the plaintiff goods
upon the usual terms of credit heretofore
allowed, so that the plaintiff
seriously injured in his business, and has
suffered and will suffer heavy loss and dam-
age in the prosecution thereof," and it is
apparent that they are only such damages
as may be recovered where the matter pub-
lished is libelous per se, and that the decla
ration does not contain such an explicit

It is said in Odgers on Libel and Slander, star pages 302, 303 (Text-Book series) that "to allege generally that in consequence of the defendant's words the plaintiff has lost a large sum of money, or that his practice or business has declined, is not a sufficiently precise allegation of special damage. The names of the persons who have ceased to employ the plaintiff, or who would have commenced to deal with him had not the defend-statement of special damage as is necessary ant dissuaded them, must be set out in the to support an action where the alleged libel statement of claim, and they must is not actionable per se. themselves be called as witnesses at the trial to state their reason for not dealing with the plaintiff. Else it will not be clear that their withholding their custom was in consequence of defendant's words; it might well be due to some other cause. If the plaintiff cannot give the names of those who have ceased to deal with him, or cannot prove that their so ceasing is due to the defendant's words, he must be nonsuited; although there has in fact been a falling off in his business."

This rule is distinctly recognized by Mr. Poe in his work on Pleading. §§ 174, 572, and was applied in Dicken v. Shepherd, 22 Md. 399, and in Newbold v. Bradstreet, 57 Md. 38, 40 Am. Rep. 426. In the latter case the 77 A.-18

The important question then is, Are the words set out in the declaration libelous per se? "To say or publish of a merchant anything that imputes insolvency, inability to pay his debts, the want of integrity in his business, or personal incapacity or pecuniary inability to conduct it with success, is slander or libelous per se, if without justification, and general damages may be recovered. Such publication necessarily, in legal contemplation, tends to injure the credit and standing of the party of whom it is made." Newbold v. Bradstreet, supra.

We are not required in this case to determine whether it would be libelous per se to publish of a merchant, whose integrity and ability to meet his obligations is entirely

satisfactory and should not be questioned, | and especially

that he had failed

for the purpose of injuring his credit and in business, or had made a general assignbusiness, in a list of ratings or book intended ment for the benefit of his creditors." The for circulation among those seeking informa- defendants replied denying that the words tion as to the financial standing and busi- conveyed or were intended to convey such ness integrity of persons with whom they meaning, and stating that at the bottom of may desire to deal, a blank rating, with the the circular was an explanation of what the explanation that "the absence of a rating, characters in question meant, in these words: whether of capital' or credit, indicates those "For explanation, please call at our office." whose business and investments render it The court, in sustaining a judgment for difficult to rate satisfactorily. We therefore the defendant, said: "The circular in quesprefer in justice to these to give the detailed tion, on its face, is not a libel on the plainreports on record, in our offices." It might tiff. When construed according to be questioned whether there words, giving their natural meaning they are innocent and them their ordinary meaning, even when in- harmless; and, as thus construed they are terpreted in the light of other ratings and not shown to be false. The use of characters explanations contained in the list or book, in the body of the page to direct the attenimpute to one of whom they are published tion of the reader to the margin or bottom the want of business integrity or financial thereof is common in many publications, and ability. But words may have another and of itself can excite neither suspicion nor different meaning, according to the connec- surprise. The plaintiff proved that such tion in which they are employed and the was the sole intention of the defendants in sense in which they are used, and will nat-making use of the double stars in the puburally be understood by those to whom they lications complained of. The only innuendo are published. They may have a local significance, or may, by usage, have acquired a peculiar meaning, and they should be given the meaning they are intended to and will naturally convey to those to whom they are addressed.

alleged by the plaintiff states simply what the defendants meant; not what its subscribers or public understood. There is no apparent ambiguity as to the meaning or the application of the words. Without proof of extrinsic facts the language of the publicaMr. Odgers says (Odgers on Libel and tion, including the characters used, is capable Slander, star p. 97): "The rule that has now of an innocent construction only. Standing prevailed is that words are to be taken in by themselves, they are incapable of defamthat sense that is most natural and obvious, atory meaning. If there was a latent injurland in which those to whom they are spoken ous meaning arising from facts, known both will be sure to understand them." It is said to the defendant and its subscribers, which in Newbold's Case, supra: "The general rule would reasonably lead the latter to underdoubtless is that the ordinary, popular mean- stand the words in a secondary and defamaing or sense of the language alleged to be tory sense, it was neither alleged nor proved. libelous is to be taken to be the meaning of Words not libelous per se may become so the publisher; but a foundation may be laid from the connection in which they are used, for showing another and different meaning, or the circumstances under which they are something may have passed or some published. The situation and surroundings habit or usage may have obtained, that gave of the most innocent expression may make a peculiar meaning or significance to the ex- it libelous, but they must be distinctly alpressions employed." In the case of Brins-leged and proved."

field v. Howeth, 107 Md. 285,1 Judge Burke In the case at bar, the declaration charges said: "If the defendant by the use of lan- "that the common acceptation of the trade guage attributed to him meant to impute and among the many thousands of subscribthe want of chastity to the plaintiff, an aver-ers to said book or list of commercial ratings ment may be introduced that by a local throughout the United States of such a or neighborhood understanding such words blank rating," accompanied by the explanamean or are understood to impute the mean- tion in the key, "is that the person rated ing ascribed to them in the innuendo. Under blank is worthless as to his financial condisuch a declaration the plaintiff could prove tion, untrustworthy as to his character, and 'any extraordinary or peculiar meaning ex- entirely unworthy of credit in any commerpressed by the words in question.'" In the cial transaction," and that the defendants, case of Kingsbury v. Bradstreet, 116 N. Y. knowing that such was the common accepta211, 22 N. E. 365, the plaintiff alleged that tion of the blank rating, etc., and in tending the defendant published a circular contain- to injure the plaintiff, caused the same to ing the following statement referring to be published of the plaintiff, "meaning and him: "Conandagua, Kingsbury, Sherman, intending to publish the plaintiff as a person Gro. and "that the defendant there who is worthless in his financial condition, by meant that its customers should under- unworthy as to his character," etc. stand that he in some way or manner had become financially embarassed in his business, and that his credit and good name as a merchant had become affected or impaired,

Now if, as alleged, the blank rating and accompanying explanation set out in the declaration have acquired the meaning and significance stated among those to whom the

account charging M. with $4,000 as the price of lots, and crediting him with $250, and containing a printed direction, signed by him, for the deed to be made to him, is not such, where the money was paid and such instrument given after the promise to M. that a contract of sale of a particular character containing the full terms of the proposed purchase was to be ex

[Ed. Note. For other cases, see Frauds, Statute of, Dec. Dig. § 113.*]

3. FRAUDS, STATUTE OF (§ 138*)-RIGHTS OF PURCHASER-RECOVERY OF MONEY PAIDGROUNDS.

Money paid by plaintiff on the purchase price of lots, there having been no sufficient memorandum of sale to satisfy the statute of frauds, may be recovered.

--

HARMLESS ERROR ERRORS FAVORABLE TO
PARTY COMPLAINING.

lists or books are sent, and the defendants, | paper purporting merely to be a statement of as alleged, knowing that they were so understood, caused the name of the plaintiff to be published in the lists or books with a blank rating, etc., for the purpose of injuring him, the words must be taken in the sense in which they were used, and in which those to whom they were published must have un-ecuted. derstood them. Judged in that sense, giving them that meaning, the publication, if without justification, was clearly libelous per se. It may or may not be difficult to prove that blank ratings and the explanation contained in the key, have acquired the meaning alleged, but if they have, then they amount to a publication that the person so rated is, in [Ed. Note.-For other cases, see Frauds, Statthe language of the declaration, "worthless ute of, Cent. Dig. § 328; Dec. Dig. § 138.*] as to his financial condition, untrustworthy 4. APPEAL AND ERROR_(§ 1033*). REVIEW as to his character, and wholly unworthy of credit in any commercial transactions." It can make no difference in principle what may be the words or characters employed. If they have acquired, among those to whom they are published, a definite significance, and the publisher is aware of the construction that will be placed upon them, their actionable character must be determined accordingly. On the other hand, words cannot be given any other than their natural and ordinary meaning, unless it be alleged and proved that they were used and understood in a different sense. The one who publishes them, or causes them to be published, cannot complain if his words are judged by the sense in which they were used and in which he knew they would be understood, and it must be presumed that he intended them to mean what he knew those to whom they were published would understand them to

mean.

We have examined the cases cited by counsel for the appellee; but do not regard them as in conflict with the views we have expressed. The matters alleged in colloquium warrant the meaning ascribed to the publication in the innuendo, and, for the reasons stated, we must reverse the judgment of the court below and remand the case. Judgment reversed, with costs, and new trial awarded.

(112 Md. 648)

COLONIAL PARK ESTATES v. MASSART. (Court of Appeals of Maryland. Feb. 25, 1910.) 1. EVIDENCE (§ 462*) -PAROL EVIDENCEWRITTEN CONTRACTS.

Parol evidence, while inadmissible to vary or contradict the terms of a written instrument, is admissible to show that a writing was not intended as a contract or as the binding record of a contract.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2134-2139; Dec. Dig. § 462.*] 2. FRAUDS, STATUTE OF (§ 113*)-MEMORANDUM OF SALE-SUFFICIENCY.

However sufficient as a memorandum of a

One may not complain that his prayer is modified to be more favorable to him than he is entitled.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4053; Dec. Dig. § 1033.*] 5. APPEAL AND ERROR (§ 1048*) · REVIEWHARMLESS ERROR-EVIDENCE.

Defendant may not complain of the overruling of objections to questions; they, being of a preliminary character, having no direct bearing on the issue in the case, and the answers being of such character as to do it no injury.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. 88 4140-4160; Dec. Dig. 1048.*]

6. EVIDENCE (§ 121*)-RES GESTÆ.

There being evidence, in an action to recover $250 paid by plaintiff on the purchase price of lots, that the money was paid after the promise to him that a contract of sale of a particular character containing the full terms of the proposed purchase was to be executed, and that the next morning a written contract was tendered him for execution, his testimony that he took the paper, handed to him at the time of payment as a receipt for $250 is admissible as part of the res gestæ, and as tending to show that such paper, purporting on its face to be only a statement of account charging him with $4,000 as the price of the lots, and crediting him with the $250, and signed by him, only as to a printed direction therein as to who should be grantee in the deed, was not intended as a contract of sale or as a memorandum thereof.

[Ed. Note. For other cases, see Evidence, Dec. Dig. § 121.*]

7. APPEAL AND ERROR (§ 280*)-EXCEPTIONS WAIVED BY ADMISSIONS.

Exceptions as to the admission of evidence of a certain fact are rendered immaterial by the admission of counsel, in open court on the hearing of the appeal, of the existence of such fact.

[Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 280.*]

Appeal from Superior Court of Baltimore City; Alfred S. Niles, Judge.

Action by Henry Massart against the Colonial Park Estates. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, THOM

sale to satisfy the statute of frauds might be, a AS, PATTISON, and URNER, JJ.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

J. Royall Tippett and Richard B. Tippett, | day to sign, he expressed himself as satisfied for appellant. R. Howard Bland and J. Kemp Bartlett, for appellee.

SCHMUCKER, J. The appellee sued the appellant in the superior court of Baltimore City on the common counts in assumpsit. The trial of the case upon the general issue pleas resulted in a judgment for the plaintiff from which this appeal was taken.

and paid the company the $250 cash payment. When he had made the payment McCoy filled up and handed to him what he says he supposed was a receipt for the money, at the foot of which he without reading the paper signed, at McCoy's suggestion, the direction for making out the deed. The paper so handed to him at that time is as follows:

"No lots reserved or held. No verbal agreement recognized by the company. All sales are subject to the rules and acceptance of the company. "Baltimore, July 3, 1908. "M. Henry Massart. W. P. McCoy. "To Colonial Park Estates of Baltimore City, Dr. "C. & P. Phone, St. Paul 3119. Offices: 763-769 Calvert Building.

Price

3 Lots No. 3-4-5 Sec. Q. $4,000.00.......
First payment two hundred fifty dollars...

Balance due......

$4,000 00 250 00 $3,750.00

"To the General Manager of Colonial Park Estates: "Please make deed for above lot

in the name of

and

"Signed by payer:

Term $30 per month

The record discloses the fact that the purpose of the suit was to recover from the defendant company the sum of $250 which the plaintiff, Henry Massart, had paid to it on account of a proposed purchase of three lots of ground, which he contends was never consummated. It appears from the evidence that Massart, having seen an advertisement by the company offering for sale lots in a tract of land on the outskirts of Baltimore City which it was engaged in developing under the name of the "Colonial Park Estates," visited the property on July 4, 1908, where he met Mr. McCoy, the selling agent of the company. Mr. McCoy took him over the property, explaining its attractions and gave him a sales plat of it, indicating to him the various lots which had already been disposed of and those remaining unsold. Massart became much interested in the property and on the next day he called up McCoy by phone to ascertain whether he could buy the lots designated on the plat as Nos. 3, 4, and 12. He was informed that lot 12 had been sold, whereupon he expressed his willingness to pay $4,000 for lots 3, 4, and 5. McCoy re- The account given by McCoy in his testiplied that he could not accept that price, but mony of what transpired between him and invited Massart to come out to the property Massart on the two visits of the latter to the again and see him, at the same time express-property on July 4th and 5th respectively ing the hope that they would be able to come substantially agreed in most of its details to mutually satisfactory terms.

"H. Massart.

Address of Payer:

"Offer accepted July 6, 1908.

"617 St. Paul St.

"John J. Watson, President."

It appears from the record that this memorandum was in fact signed by Massart on July 5th, although bearing date as of the 3d, and that the memorandum of acceptance was signed by Watson on the 6th, as therein stated.

with that of Massart, but he said, in referOn the next day, July 5th, Massart again ence to what occurred at the time of making visited the property and after examining the the cash payment, "I communicated the acsales plat which showed the dimensions and ceptance of the offer to Mr. Massart and a location of the several lots, and looking over memorandum of the agreement was drawn the land and making some calculations as to up on a paper and Mr. Massart gave me a the area contained in lots 3, 4, and 5, he check for two hundred and fifty dollars ($250) made a verbal offer for them of $4,000, to be to bind it. I went over the restrictions with payable $250 in cash, and the balance in Mr. Massart, and he asked if they were reweekly installments of $30 each. McCoy, aft-duced to writing and I said they were. He er consulting the president of the company, accepted the offer and asked for the cash payment of $250, but Massart, according to his testimony declined to make any payment until he was shown a sample of the contract the company would make with him for the lots.

McCoy at first said he had no sample with him, but upon the insistence by Massart on seeing the kind of contract he would have to sign before he would make any payment, McCoy produced and gave to him a printed blank form of contract containing quite a number of provisions and restrictions such as are usual in suburban real estate developments. Massart went over the contract, and, after discussing some of its provisions with

asked for a form of contract, a form of paper that had all of these provisions in. Of course each particular lot required a special set of papers, but there was a general form used." McCoy further testified that he had fully explained to Massart all of the restrictions, and that the latter knew all about it.

On the morning after the payment of the $250 McCoy took to Massart's office, for signature by him, a formal contract for the purchase of the lots. That contract was drawn upon a form of the kind shown to Massart on the previous day when he paid the money, but there had been inserted into the blank spaces of the printed form several very material provisions imposing additional burdens

Although parol evidence is inadmissible to vary or contradict the terms of a written agreement, it is well settled that such evidence is admissible to show that a particular written paper "was never intended as a contract or as the binding record of a contract between the parties." And this has been held to be true, even though the paper writing in question be in the form of a contract and bear the signatures of those named in it as the contracting parties. We distinctly held this to be the law upon the authority of many cases, both English and American, cited by us in the Southern Advertising Co. v. Metropole Co., 91 Md. 61-68, 46 Atl. 513.

provisions made the lots liable in perpetuity | ed as a binding memorandum of a contract for a proportionate share, not exceeding six of sale of the lots. dollars per annum on every dwelling to be erected on them, of maintaining a sewerage system; another reserved to the company the right to lay sewer and water pipes, erect and maintain poles for electric lighting and heating purposes on the rear line of the lots; still another contained minute and stringent conditions prohibiting the construction or maintenance of privies or vaults or cesspools for the storage of any kind of liquid waste on any portion of the lots. When this contract was tendered to Massart fór signature he, according to his testimony, asked Mr. McCoy to leave it with him so that he could study it. A few days thereafter he notified the company that he had decided not to buy the lots and requested the return of the $250 which he had paid to it. Not receiving the money he brought the present suit and recovered a verdict for the full amount with interest.

It appears from the record that Massart, when refusing to sign the contract for the purchase of the lots, assigned as his reason for so doing only that as he lived in France he thought it unwise to bind himself up here in such an engagement. When he was on the witness stand he also assigned as reasons for not making the purchase that the lots tendered him contained smaller areas than those shown on the plat exhibited and given him at the time of the alleged purchase, as well as that the contract tendered him for signature was materially different in its provisions from the one shown him when he paid the deposit. We do not discuss those features of the case because in the view which we take of it they are not material to the issue, except in so far as the plaintiff's statements in that respect might influence a Jury in passing upon the credibility of his testimony.

The Supreme Court of the United States in Burke v. Dulaney, 153 U. S. 234, 14 Sup. Ct. 816, 38 L. Ed. 698, upon a review of the cases upon this subject, reached the conclusion there stated in its opinion that "the rule that excludes parol evidence in contradiction of a written agreement presupposes the existence in fact of such an agreement at the time the suit is brought. But the rule has no application if the writing was not delivered as a present contract, and parol evidence was admissible to show that there never was any concluded binding contract entitling the party who claimed the benefit of it to enforce its stipulations."

The Southern Advertising Co.'s Case has recently been affirmed by us in Birely & Sons v. Dodson, 107 Md. 233, 68 Atl. 488, and the principal upon which it rests has been recognized and relied on in many cases in other jurisdictions, among which are Ware v. Allen, 128 U. S. 590, 9 Sup. Ct. 174, 32 L. Ed. 563; Adams v. Morgan, 150 Mass. 143, 22 N. E. 708; Nutting v. Minnesota Ins. Co., 98 Wis. 32, 73 N. W. 432; Reynolds v. Robinson, 110 N. Y. 654, 18 N. E. 127; Pollock on Contracts, 236; Clark on Contracts, 62.

If, therefore, the jury in the present case believed Massart's testimony as to the circumstances and understanding under which the $250 were paid by him to the company, and the memorandum or receipt handed to him by its agent McCoy was signed, that writing did not constitute a sufficient memorandum of a sale under the statute of frauds, and there was no binding contract of sale between the parties, and the plaintiff was entitled to recover back the money so paid by him.

The substantial contention of the appellant is that the paper handed by McCoy to Massart when the $250 were paid constituted a sufficient note or memorandum of the sale within the statute of frauds, and that the signing by Massart at its foot of the direction to make the deed in his name made the purchase binding upon him, and that he is therefore not entitled to maintain the present action for the recovery of the money. Without pausing to consider whether that paper would have constituted a sufficient memorandum of the sale to bind Massart as purchaser Examining now, in the light of what we if it had been signed by him with the pur- have said, the rulings of the court below, pose and intention that it should constitute which the appellee brings up for review, we such a memorandum, we think that if the find 13 bills of exceptions, in the record. Of money was paid by him as he testified that these 12 were to rulings on evidence and one it was, under the distinct understanding that to the court's action on the prayers. At the the sale was to be made upon the terms set close of the case the plaintiff offered seven out in the printed form of contract then giv- prayers, all of which were rejected as ofen to him, and further, that a contract there- fered; but the seventh was granted with for upon those terms was to be furnished certain modifications. The defendant offered him for execution on the following day, the five prayers, all of which were rejected as paper which he signed should not be regard-offered; but its second prayer was granted