officer, except at the peril of paying it a second time, if the title of the contestant should subsequently be established, it is easy to see that the public service would be greatly embarrassed and its efficiency impaired. Disbursing officers would not pay the salary until the contest was determined, and this, in many cases, would interfere with the discharge of official functions": See, also, State v. Milne, 36 Neb. 301, 38 Am. St. Rep. 724, 54 N. W. 521, 19 L. R. A. 689; Commissioners of Saline County v. Anderson, 20 Kan. 298, 27 Am. Rep. 171; Auditors of Wayne County v. Benoit, 20 Mich. 176, 4 Am. Rep. 382; Demarest v. New York, 147 N. Y. 203, 41 N. E. 405; People v. Nolan, 101 N. Y. 539, 5 N. E. 446; 8 Am. & Eng., Ency. of Law, 2d ed., 814.

On the principal question, therefore, we think the judg ment should be reversed. But if it were otherwise, there is another reason why recovery from the town cannot be had in this case. By statute the officer de jure may recover of the officer de facto the salary or fees of an office paid to the latter: Ballinger's Code, secs. 5785, 5788 (P. C., secs. 1439, 1442); State 607 v. Van Brocklin, 8 Wash. 557, 36 Pac. 495. In this case, as we have stated, the respondent did so recover. This was an election of remedies, and he cannot now have judgment against the town, merely because he failed in execution against his judgment debtor.

The judgment is reversed and the cause remanded, with instructions to enter a judgment for the appellant town of Harrington.

Mount, C. J., Hadley, Rudkin, Dnubar and Crow, JJ.,

concur.

Root, J., concurs in the result.

The Payment of a Salary to an Officer De Facto is usually regarded as a defense to an action therefor by the officer de jure: Brown v. Tama County, 122 Iowa, 745, 101 Am. St. Rep. 296; Coughlin v. MeElroy, 74 Conn. 397, 92 Am. St. Rep. 224, and cases cited in the cross-reference note thereto; note to Andrews v. Portland, 10 Am. St. Rep. 284.

WOODHOUSE v. POWLES.

[43 Wash. 617, 86 Pac. 1063.]

LIBEL-Report by Credit Association-Damages.-A retail grocer, by mistake reported delinquent to a wholesale dealers' association and refused credit, is not entitled to recover more than nominal damages for libel, it appearing that the mistake was corrected and his credit restored at the earliest possible moment, and it not appearing that he suffered from injury to his feelings or to his credit. (p. 1080.)

LIBEL-Report by Credit Association-Damages.-An agreement between the members of a wholesale dealer's association to report delinquent retailers and refuse them credit until their debt is paid, with notice to all retailers in advance of such agreement, is valid. A mistaken report of such association of the delinquency of a retailer does not render such false report libelous per se, from which malice is presumed, entitling such retailer, in itself, to recover substantial damages without proof of any other facts. (p. 1081.)

LIBEL-Report by Credit Association-Damages.-If a wholesaler's association reports one of its retail customers as delinquent when in fact he is not, it is liable for the actual or compensatory damages suffered by him, but in determining the amount of damages the question of malice is of no moment in a jurisdiction where punitive or exemplary damages cannot be recovered. (p. 1082.)

LIBEL-Actionable por Se-Damages-Evidence.-It is not necessary, to enable a person to recover general damages for a libel actionable per se, that he show some actual pecuniary loss, or that his injury be capable of some definite money valuation. Injury to feelings, mental suffering, injury to character and reputation, and similar injuries, incapable of definite money valuation, can be recovered for when proven in actions for libel. (p. 1083.)

DAMAGES-Nonsuit.-If the sole object of an action is the recovery of damages, a failure to prove substantial damages is a failure to prove the substance of the issue, and entitles the defendant to a nonsuit, although the plaintiff may be entitled to nominal damages. (p. 1083.)

F. A. Gilman, for the appellant.

J. Kiefer, for the respondents.

619 FULLERTON, J. The appellant, at the time of the transactions hereinafter mentioned, was a groceryman in the city of Seattle engaged in the business of conducting a retail grocery store. The respondents were wholesale fruit and produce dealers in the same city, and were members of a voluntary association, composed of some fourteen other dealers engaged in the same business, known as the Seattle Produce Association. The object of the association was to establish a uniform credit system. The members drew up articles

of agreement, fixing the terms on which credit would be granted to the retail dealers, in which, among other things, they provided that bills for produce sold to retail dealers should become due and payable on a day certain following the sale, and if not paid on that day the dealer should be declared delinquent, and thereafter the members of the association would not extend credit to him until he was reported clear upon the books of the dealer who had sold him the produce. Copies of this agreement with a circular letter calling attention to it was sent to all the retail dealers in Seattle and vicinity, one of such copies being received by the appellant.

On January 5, 1904, the appellant's employé applied for certain green groceries of one of the dealers belonging to the association, and was informed by him that the appellant had been reported delinquent, and that any goods sold him would have to be paid for in cash. The employé reported to the appellant what the dealer had said, and was directed to return without the goods. On the next morning the employé again appeared and inquired which of the dealers had returned the appellant as delinquent. On being informed that the respondents had so reported, he went to their place of business, when the matter was inquired into. It was then ascertained that the respondents had returned the appellant as delinquent by mistake, as he was not then indebted to them in any sum whatsoever-the mistake arising from the fact that a salesman 620 of the respondents had failed to report to their bookkeeper that the appellant had countermanded an order for a case of lettuce which had been set apart for him and charged to his account earlier in the day. Immediately on discovering the mistake the appellant's credit was restored, and he was permitted to purchase produce on the usual terms.

The appellant conceived that he was damaged in the sum of five thousand dollars by the act of the respondents, and brought this action to recover that sum. On the trial, at the conclusion of his evidence, the trial judge sustained a motion for a nonsuit, and afterward entered judgment dismissing the action, from which judgment this appeal is taken.

The ruling of the trial judge was based on the finding that the evidence on behalf of the appellant failed to show that he had suffered any actual pecuniary loss other than would be covered by mere nominal damages. Our perusal of the evidence leads us to the same conclusion. Nowhere in his

evidence does the appellant claim that he had suffered from feelings of disgrace, shame, humiliation, mortified pride, or mental anguish of any kind, because of the act of the respondents, or that his credit or reputation for honesty as a merchant had been in any manner impaired by that act. On the contrary, his evidence shows that it was no new experience for him to be on the association's delinquent list; and that he regarded the position as nothing more than a mere inconvenience, since its effect was to require him to pay cash for his green groceries on delivery, instead of settling for them at the end of the week. He did testify, however, that because he could not fill certain orders given on the day he procured no produce he lost some trade, and possibly some customers, but he was not able to give even an estimate as to the amount of his losses in this respect. This, as we say, might justify a recovery of nominal damages, but clearly no recovery for substantial damages could be sustained under 621 such proofs, if the appellant is to recover only compensatory damages for his injury.

Counsel for the appellant, however, as we understand his argument, takes the position that the association was in itself unlawful, and that the act of the respondents in notifying their fellow-members that the appellant was delinquent on one of his purchases when he was not so delinquent was an act libelous per se from which malice is presumed, and entitles him in itself to recover substantial damages without proofs of any other fact. As to the first position, we do not think it tenable. Courts, it is true, uniformly hold it libelous for a person or association of persons to attempt to coerce the payment of debts by holding the debtors out to the world as being dishonest and unworthy of credit, or to publish their names in circulars, pamphlets and books for distribution among dealers, as persons who have contracted debts and failed to pay them; but no court, so far as we are advised, has held it unlawful for dealers in a common line of goods to agree among themselves not to extend credit to a person who had defaulted in a payment to some one of them. The right that each one has to protect his legitimate interests justifies such an agreement. And it being lawful to enter into such an agreement, it is, of course, lawful, and hence not libelous, for one party to the agreement to report to the others the names of such of his customers as have become delinquent; and especially is this so where, as in this case, the purchaser is

informed in advance of his purchases that a denial of further credit will be the consequence of his failure to pay at the required time.

An illustrative case of the class holding it unlawful to attempt the collection of debts by advertisements tending to bring the debtor into public contempt is Muetze v. Tuteur, 77 Wis. 236, 20 Am. St. Rep. 115, 46 N. W. 123, 9 L. R. A. 86. There an association having for its expressed objects "the collection of bad debts" undertook to coerce the payment of a 622 disputed claim in favor of one of its subscribers by sending to the debtor letters contained in envelopes of a conspicuous character, indorsed with the name and object of the association together with the words "Main Office Notice," and afterward printing and circulating a book containing the name of the debtor, with others, as being a person unworthy of credit. These acts were held libelous and the debtor allowed to recover. But the principle upon which the case rests differs from that involved in the case before us. Public policy forbids the resort to this method for the purpose of collecting debts, but no rule of public policy forbids a wholesaler to refuse to credit a retail dealer who has made default in his payments to another wholesaler, and it follows, as of course, that he may resort to any legitimate method for ascertaining who is in default. As we hold that the method pursued in this case was a legitimate one, no action can be founded on that act alone. For cases illustrating the general question, see White v. Parks, 93 Ga. 633, 20 S. E. 78; Traynor v. Sielaff, 62 Minn. 420, 64 N. W. 915; MeIntyre v. Weinert, 195 Pa. 52, 45 Atl. 666; Ulery v. Chicago Livestock Exchange, 54 Ill. App. 233; Hartnett v. Plumbers' Supply Assn., 169 Mass. 229, 47 N. E. 1002, 38 L. R. A. 194.

But, while it was lawful for the respondents to enter into the agreement shown, and to report the appellant as delinquent if in fact he was delinquent, they are liable for an abuse of the right, and are liable to the appellant for all actual damages suffered by him if they reported him as delinquent when he was not in fact delinquent. In determining the amount of damages, however, the question of malice is of no moment. In this jurisdiction punitive or exemplary damages cannot be recovered, unless their recovery is espeeially provided for by statute: Spokane Truck & Dray Co. v. Hoefer, 2 Wash. 45, 26 Am. St. Rep. 842, 25 Pac. 1072, 11 L. R. A. 689; Wilson v. Northern Pac. R. Co., 5 Wash. 621,