(100 So.) with the action for libel against the insur- [4] Our conclusion is that the exception ance companies. [2] With respect to the several insurance companies and their agents and solicitors the allegations of conspiracy made in the petition, when taken in connection with the resolutions of the Underwriters' Association and the publication headed "Parasites and Pirates," show a sufficient community of interest and singleness of purpose as to authorize the joinder of all of said companies and their agents in one suit. As said by the author in Newell on Slander and Libel (3d Ed.) p. 467: "But with libel it is different; the publication of a libel may be the joint act of two or more persons, who may in such case be sued either jointly or separately at the election of the plaintiff." [3] But, while this is true as regards the published libel which may be the joint act of two or more individuals or corporations, it is not so with respect to an action for slanderous words, for the reason that the words. of one person are not the words of the others. The words of each constitute an entire and distinct offense. of misjoinder is well founded in law and in reason. Having reached this conclusion, we might well end this discussion here by dismissing the suit as to all the defendants, since "Where an exception of misjoinder of defendants is sustained, the court cannot discriminate by dismissing the suit as to one defendant, rather than another, but must, ordinarily, dismiss it as to all." Davidson v. Frost-Johnson Lumber Co. et al., 126 La. 542, 52 South. 759. However, as the question of whether the plaintiff has a cause of action is directly presented by the petition and the exception of no cause of action, and as it is to the interest of all parties that the issue should be settled, at this time and in this suit, we shall proceed to do so. [5] The argument, oral and on brief by the counsel on both sides, presents an able and exhaustive review and discussion of the law and jurisprudence bearing on practically every phase of libel and slander. But, after a careful consideration of the authorities and a study of plaintiff's petition in connection with the alleged libelous matter, we self into the simple question as to whether the resolutions adopted by the Life Underwriters' Association and the publication under the caption "Parasites and Pirates" constitute in law and in fact actionable libel. In Duquesne Distributing Co. v. Green-are of the opinion that the case resolves itbaum, 135 Ky. 182, 121 S. W. 1026, 24 L. R. A. (N. S.) 955, 21 Ann. Cas. 481, it was said: "All the authorities are agreed that slander, which is an oral utterance of defamatory matter, must necessarily be committed by an individual. Two or more persons cannot in the very nature of things jointly utter the same words. Each must and does speak for himself, and each is liable for his own language. A dozen persons might repeat identically the same slanderous words at one and the same time or at different times, and each would be liable in an action against the individual; but two or more of them could not be jointly sued." In the above case a further reason was pointed out why two or more persons could not be joined in an action for personal slander by words, and it is this, that the same words spoken by one may occasion greater injury than those spoken by another, and that each should be responsible only for the injury inflicted by his own independent act. The author cites Cooley on Torts, p. 124. The application of the rule to the instant case is apparent. The three individuals could not be held, jointly or separately, for the alleged libel of the insurance companies, nor could the insurance companies, separately or collectively, be held liable for the slanderous words of the three individuals. It will be recalled that, although the plaintiff had obtained contracts from three insurance companies as agent and solicitor for life insurance, his principal and doubtless most lucrative field of endeavor was among those who were already insured with the defendant companies. His declared business was to advise such policy holders to surrender and cancel their policies on the representation that he could, on account of his long experience and superior knowledge, get for them an advantageous adjustment and settlement and an equal amount of insurance at less cost to them, or a greater amount of insurance at the same cost. To this end and in support of his scheme he accused the insurance companies of having, in their own interest and to protect the interest of their agents and solicitors, made use of such technical language in the policy contracts that an ordinary individual was not able to understand and comprehend his rights under the option and privilege supposed to be granted in the policy. In other words, the plain imputation, according to the plaintiff's own judicial confession, was that the insurance companies had deliberately, purposely, and advisedly so concealed the option and privilege that none but an ex Admittedly, the libel (if it is a libel) charged against the insurance companies in the very nature of the case would cause the plaintiff to suffer much greater damage than would the mere defamatory words attribut-pert like the plaintiff, with a ripe experience ed to the individuals. and study of such matters, could advise the 100 SO.-28 policy holders of the true intent and meaning of the contract. This was unquestionably a grave and serious charge against the insurance companies. A charge which affected the integrity and fair dealing of the companies with their patrons and customers, and coming from an insurance solicitor licensed by the state, was obviously calculated to affect their standing and to destroy the confidence, not only of the policy holders themselves, but of the insurable public generally, in life insurance. It is not going too far to say that such conduct and practice on the part of the plaintiff placed him beyond and outside of the place of a fair and legitimate rival and competitor in the life insurance business. Instead of becoming a competitor whom the life insurance companies could welcome, he assumed the attitude of a menacing antagonist, and his success avowedly depended upon and was measured by his ability, through the methods we have outlined, to destroy the business of the defendants by inducing the holders of policies to surrender and have them canceled. It was in defense against this assault on their business and to counteract the effect of plaintiff's practices, which was regarded as prejudicial to the interest of holders of seasoned and long-standing policies, that brought about the adoption of the resolutions. Let us analyze the resolutions, and see whether they went beyond a legitimate defense of the attack made upon the companies. First. The resolutions announced that the attention of the Life Underwriters' Association had been called to the fact that the plaintiff, styling himself an actuary, was suggesting and urging the holders of policies in companies whose representatives were members of the association to surrender such policies and rewrite in such companies as the plaintiff might propose, representing that such a course could be pursued with profit to the insured. There was nothing false and malicious or vindictive in this announcement; on the contrary it was but a statement of a fact admitted by the plaintiff in his petition. Second. "As life underwriters, knowing that the promises on which such conclusion is based is unprofitable to the insured, we deem it a duty to our clients to put a stop to this practice." This was but a denial of the assertions made by the plaintiff, and it was a duty which the companies owed their clients to protect them against the actions of the plaintiff which the companies deemed prejudicial to the clients' interests. Third. 46 # That we condemn the practice of conceling old policies in any solvent established life insurance company, to surance company, as we know that it is against the interests of the policy holder." We can discover nothing wrong or injurious to the plaintiff in this declaration. The plaintiff had made the issue, and the companies had the undoubted right to meet it by condemning the practice of canceling poliices in well-established companies and to advise their policy holders against accepting the advice of the plaintiff. Fourth. The practice of the plaintiff was called to the attention of the executive officers of all life insurance companies and the general agents, to the end that all business submitted by the plaintiff might be scrutinized to determine whether it involved the surrender of the old policy in any wellestablished legal reserve life insurance company, and, if it did, that the acceptance of the business be declined. There is to be found nothing libelous lurking in this resolution. The insurance companies collectively or separately were interested in preserving the integrity of their contracts, and had the legal right, when they found what they be lieved to be an unjustifiable and an unfounded attack made upon them, to call upon all companies engaged in writing life insurance to decline such business, if it was the fruits of canceled and surrendered policies. There is certainly nothing in the resolution to indicate malice or bad faith on the part of the insurance companies, and they had a common interest in protecting their own interest and what they conceived to be the rights of their policy holders against a common antagonist who sought to destroy their business and to injure their clients. [6] Moreover, the resolution under the circumstances must be regarded as a privileged communication. Mr. Newell in his work on Slander and Libel (3d Ed.) p. 475, says: "A communication made in good faith, upon any subject-matter in which the party has an interest, or in reference to which he has a duty, either legal, moral or social, if made to a person having a corresponding interest or duty, is qualifiedly privileged." And in Richardson v. Cooke, 129 La. 365, 56 South. 318, it was held that there is a qualified privilege where the person making the communication complained of has an interest in the subject-matter, and the person to whom it is made has a corresponding interest. Fifth. This involves the request that the companies employing the plaintiff cancel his license to do business in Louisiana, if it should be found that he was guilty of the practice charged against him. That the employers of plaintiff had the legal right to take such action is not disputed, and it would seem that it makes but little difference from what source they got the informa (100 So.) The said companies are not liable to the Pirates." That article merely called attenplaintiff for any loss he may have sustained tion to the consensus of opinion of bankers as a result of the withdrawal of his con- and others in favor of life insurance; that tracts, nor can the other insurance compa- policies are rated at the age of issue and nies be held liable, and this is true, even could not be replaced to the insured's adthough the three companies acted on the sug-vantage at the higher rate applicable to atgestion of the other companies. "A person has an absolute right himself to refuse to have business relations with others, whether the refusal is based upon reasons, or is the result of whim, caprice, prejudice, or malice." Lewis v. Huie-Hodge Lbr. Co., 121 La. 658, 46 South. 685. [7] All of the companies made defendants in this suit had the right to refuse to have business dealings with the plaintiff, and what they could do in this respect separately they could do conjointly, in view of the conduct of the plaintiff towards all of the insurance companies, and of their common interest in the subject-matter which severed the business relations with the plaintiff. "Insurance companies cannot be made liable in an action for damages, for having conspired and agreed with each other that they would not insure any boat in which a particular person should be employed, in order to prevent that person from obtaining employment." Orr v. Home Mutual Insurance Co., 12 La. Ann. 255, 68 Am. Dec. 770. The rule may have been too broadly stated in the foregoing quotation, and perhaps should be so modified as not to apply to conspiracies and combinations put into execution from wanton or malicious motives without justification of competition, and without interest or lawful purpose. case. The instant case, however, is not such a All of the insurance companies were acting in furtherance of a common interest for their own protection and in defense of an attack of a common adversary, and there was an entire absence of any improper or malicious motive. The case is clearly distinguishable from Webb v. Drake, 52 La. Ann. 290, 26 South. 791. In that case, as the court said in Lewis v. Huie-Hodge Lbr. Co., supra tained age; that any attempt by so-called audit and adjustment to change life insurance contracts in force is solely for the profit of the individual attempting the change. Free advice is proffered by the insurance companies, and policy holders are warned to beware of others. [8] There was certainly nothing objectionable in this warning and advice. If the plaintiff was in the class to whom the article was directed, he has no just complaint. He has no cause to reproach the insurance companies, much less a right to inflict a damage upon the companies for an act which he had provoked. Moreover, the plaintiff's name was not mentioned in the article. "Where defamatory words reflect upon a class of persons impartially, and there is nothing to show which one is meant, no action lies at the suit of any member of the class." Newell on Slander and Libel (3d Ed.) p. 468; Mielly v. Soule, 49 La. Ann. 800, 21 South. 593. [9] Aside from all that has been said, however, the plaintiff, in his attempt to recover damages from the defendants for the causes set out in his petition, is met with an insurmountable legal obstacle appearing upon the face of the papers, and that is the doctrine of provoked libel. It is a universal rule of law and jurisprudence that one who is at fault himself cannot recover civil damages from another who has retaliated in kind. We shall not attempt citation of the many adjudications adhering to and applying this rule. In Burt & Co. v. Casey Mfg. Co., 107 La. 231, 31 South. 667, it was said: "The law lends its protection to every person, natural or juridical, to shield its good name, not to the extent, however, of protecting one and condemning the other when the complainant has itself been at times * intemperate in its seeking to maintain the vantage ground it had perhaps gained in its business." The defendants were not acting singly, each controlling his own conduct; but they had joined together in order to destroy The judgment appealed from is affirmed, plaintiff's business. That business was one at appellant's cost. which did not enter into competition with that of any of the defendants, but was entirely distinct from it." The other libelous act charged against the defendants is the publication "Parasites and ST. PAUL, J., concurs in the decree. Rehearing refused by Division A, composed of O'NIELL, C. J., and ROGERS and BRUNOT, JJ. (156 La.) No. 24590. FASSBENDER v. GHERGICH. (Supreme Court of Louisiana. May 5, 1924.) (Syllabus by Editorial Staff.) 1. Brokers 94-Power held to authorize broker's acceptance for principal of offer to purchase. Power of attorney to realty agent held to expressly authorize him to accept, on behalf of principal, offer to purchase made in conformity with terms specified. 2. Brokers 94-That offer to purchase made subject to lease held not to affect vendor's liability after acceptance. The mere fact that offer to purchase property was made subject to existing lease held not to affect vendor's liability to convey after acceptance by authorized agent. 3. Brokers 94-Stipulation as to notary public before whom sale to be passed held not to affect vendor's liability to convey. Stipulation by vendor's agent, accepting offer to purchase property, that act conveying same should be passed before "owner's notary public," whereas nothing was specified in conditions imposed by vendor as to what officer sale should be passed before, held not to affect vendor's liability to convey. 4. Vendor and purchaser 44-Sales; fraud of broker releasing agency and subsequently purchasing property held not shown. Coupled bers 3801 and 3803 Ulloa street. with this demand is one for an accounting for the fruits and revenues of the property involved. On June 16, 1919, defendant executed and delivered to Ernest A. Carrere, a real estate agent of New Orleans, the following instrument, to wit: "I hereby authorize you, your successors, or your heirs, to sell for me property No. 3801lot 32 feet by 111.8 feet, more or less, descrip03 Ulloa street, corner Cortez street, size of tion of improvements * $ rented for per month, same to be sold for not less than ($3,750) thirty-seven hundred and fifty 00/100 dollars. "Terms and conditions: Cash purchaser to assume 1919 taxes. "I agree to give you sole control for six months and I further agree not to interfere in the sale of the property during the term of this contract and further agree to refer all applicants for the sale of this property to the said Ernest A. Carrere. "At the expiration of six months I will notify you in writing, whether or not I desire this contract to continue, and my failure to do so. shall operate as a renewal of this contract for a term of six months more. It is further understood and agreed that there are to be no charges if above described property is not sold. "If sold I agree to pay you a commission of 3 per cent. If sold by you or any one else I still agree to pay you a commission of 3 per cent. It is distinctly understood that your purchase price is put up, and that your comlabor ceases when the deposit on account of mission is earned whether the title to said property is accepted or rejected by the pur The fact that purchasers of property from a broker authorized by defendant to sell it had previously represented defendant, and that he had declined to sell to them for fear of liability of double commissions and that such purchaser. chasers released their agency before making the purchase, held not to indicate fraud or ill practice. 5. Specific performance 127(1)-One enforcing specific performance entitled to accounting for fruits and revenues received by defendant. One suing for specific performance of contract to sell realty is entitled to accounting for fruits and revenues. Appeal from Civil District Court, Parish of Orleans; Hugh C. Cage, Judge. Suit by John P. Fassbender against Matthew Ghergich. Decree for plaintiff, and defendant appeals. Annulled in part, and affirmed in part. L. H. Gosserand, of Gretna, and David Sessler, of New Orleans, for appellant. Martin H. Manion and Herbert W. Kaiser, both of New Orleans, for appellee. OVERTON, J. This is a suit demanding specific performance of an alleged promise of sale. The property involved consists of certain improved real estate, situated in the city of New Orleans, and bearing municipal num "I further authorize you to accept 10 per cent. of the purchase price on account of sale, which is not to be considered earnest money; and is to be deposited in the City Bank & Trust Company of this city to the credit of Ernest A. Carrere and to remain there until the sale of the property is completed. "In case of suit to recover any part of the commission or any other amount that may be due, 25 per cent. will be added for attorney's fees." On the same day that the foregoing instrument was executed, Poer & Seixas, agents, made a written offer, on behalf of plaintiff, to purchase the property for $3,750 cash, to assume the taxes for the year 1919, and to take the property subject to an existing lease, to deposit 10 per cent. of the purchase price, in the event of the acceptance of the offer, and, in the event of failure to comply with the offer, if accepted, to pay 25 per cent. attorney's fees, and 3 per cent. commission on the amount offered, and all costs incurred, the act of sale to be passed before notary public, at the expense of the purchaser. The offer was accepted by Ernest A. Carrere, and on the same day Poer & Seixas La.) FASSBENDER v. GHERGICH (100 So.) paid to the firm of Ernest A. Carrere's Sons, as agents-of which firm Carrere was a member-$375, to be credited on the price to be paid for the property, this sum being the 10 per cent, of the price referred to in the mandate given by plaintiff to Carrere. The firm issued its receipt for the amount. Defendant refused to complete the sale by executing a deed to the property, whereupon plaintiff brought this suit. Defendant filed an exception of no cause of action which was overruled. He then filed his answer. The case was tried, and judgment was rendered in favor of plaintiff, requiring defendant to convey said property to plaintiff by clear and unincumbered title, and directing plaintiff to pay to defendant, at the time of the execution of the deed, $3,750, the price agreed to be paid for the property, less the $375 already deposited on account of that price, and condemning defendant to pay plaintiff $40 a month, as the revenues of said property from July 1, 1919, until he complies with the judgment rendered. Opinion [1] The power of attorney, granted by defendant to Carrere, in our view, was sufficient to authorize him to offer the property in controversy for sale and to accept an offer to purchase it, and thereby bind defendant to convey the property to the one making the offer. The expressions, found in the instrument, reading: "I hereby authorize you, your successors, or your heirs to sell for me [the] property No. 3801-03 Ulloa street," and "I further authorize you to accept 10 per cent. of the purchase price on account of [the] sale, which amount is not to be considered earnest money"-clearly and necessarily include the power to accept an offer made agreeably to the terms and conditions specified in the power of attorney. As the power to accept the offer made is necessarily included in the express powers granted, we unhesitatingly hold that Carrere had the power to accept an offer, made as aforesaid, and thereby bind defendant to convey the property. ceipt given for the 10 per cent. of the pur- [2, 3] We infer from the record that the [4] Defendant also contends that specific performance should not be required of him, because Poer & Seixas also represented him, and because the offer and its acceptance are characterized by fraud and ill practice. Shortly before the offer was made to Carrere, Poer & Seixas represented defendant. At the time they represented him, plaintiff offered them, as the agents of defendant, $3,800 for the property, $50 more than the price offered Carrere. The offer was communicated to defendant, but he did not accept it, assigning as the reason for not accepting, that he had the property listed also with Carrere's firm, and was afraid that if he did accept he would have two commissions to pay. It was because of this reason that Poer & Seixas, as we appreciate the Later, evidence, surrendered the agency. when Poer & Seixas no longer represented defendant, they made for plaintiff the offer in question. The record does not disclose why there was a difference between the first and the second It does, however, disclose that deoffer. fendant, with knowledge of the fact that he had been offered, only two weeks before, $3,800 for the property, authorized Carrere to effect a sale for $3,750, thus showing that he was later willing to sell for the latter amount. There must have been a legitimate reason, therefore, for the difference between the two offers. Under the circumstances, we would not be justified in drawing the conclusion that the offer and its acceptance were Defendant, however, contends that the of fer made by plaintiff through Poer & Seixas and accepted by Carrere is not in accord with all the terms and conditions of sale, specified in the power of attorney, and, hence, that he is not bound by Carrere's action, and, therefore, cannot be required to convey title. As the basis for the position here taken, he points out that the offer to purchase is made "subject to existing lease" that is to say, that plaintiff, in making his offer through Poer & Seixas, offered to take the property subject to the lease existing thereon, when, [5] Plaintiff, as we have seen, has also as a matter of fact, nothing is said in the terms and conditions specified by him rela- sued for an accounting for fruits and revenues. He is entitled to such an accounting, tive to the sale of the property subject to a lease and he also points out that, in the re- but there is nothing in the record upon which characterized by fraud or ill practice. Our conclusion is that defendant should execute the deed demanded. |