stated that they did not keep "Acme or common plate," it was held that the action could be maintained.1

A distinction has been drawn between direct statements of fact respecting the goods of another and mere "puffs," or statements made in the form of a comparison favorable to one's own goods and incidentally disparaging the goods of a competitor. Although statements of either description may result in damage, the former only are actionable. In the language of Lord Watson in a leading case, "Every extravagant phrase used by a tradesman in commendation of his own goods may be an implied disparagement of the goods of all others in the same trade; it may attract customers to him and diminish the business of others who sell as good and even better articles at the same price; but that is a disparagement of which the law takes no cognizance." In an early case it appeared that the defendant published the report of a professor of chemistry in which the defendant's oil was compared with that sold by the plaintiff, and the opinion was expressed that the latter was inferior. As it was not shown in what particular the report was untrue, and it appeared that the only false statement might have been the representation that the defendant's oil was of a superior quality, the court held that the action could not be maintained. Likewise, where the proprietor of "Dr. Vance's prepared food for infants and invalids" sold "Mellin's Infants' Food" after affixing thereto labels recommending a trial of the former, which was stated to be "far more nutritious and healthful than any other preparation yet offered," it was held that no action would lie and that no injunction should be granted. The trial court, being of opinion that the label was merely the puff of a rival trader, dismissed the action, and this judgment was affirmed by the House of Lords. So it was held not actionable

1 Acme Silver Co. v. Stacey Hardware and Manufacturing Co., 21 Ontario Reps., 261 (1891), and see Hamilton r. Walters, 4 Upper Canada Q. B., 24 (1834). See also Du Toit v. Robinsky & Gotz, 2 South Africa Reps., Cape Provincial Div., 307, 311 (1911), in which the court said: "I take it that where a person, with the malicious intention of injuring another, and to prevent his selling his goods, falsely depreciates the goods and by so doing actually causes damage to such other person, he would be liable in damages for such wrongful act, but in my opinion none of the necessary elements of such action exist in this case."

White . Mellin, L. R. (1895), A. C., 154, 167, 171. Per Lord Shand: "When all that is done is making a comparison between the plaintiff's goods and the goods of the person issuing the advertisement, and the statement made is that the plaintiff's goods are inferior in quality or inferior, it may be, in some special qualities, I think this cannot be regarded as a disparagement of which the law will take cognizance."

Young r. Macrae, 3 B. & S., 264 (1862). Per Wightman, J.: "What is here complained of was a comparison between the oil manufactured by the plaintiffs and that sold by the defendant. There is no statement in the alleged libel that the article sold or manufactured by the plaintiffs is a bad article; it is only said that it is inferior to that of some one else; and that is consistent with the plaintiff's article being in itself a very good article."

White v. Mellin, L. R. (1895), A. C., 154, 165. Per Herschell, L. C.: "If an action will not lie because a man says that his goods are better than his neighbour's, it seems to me impossible to say that it will lie because he says that they are better in this or that or the other respect. Just consider what a door would be opened if this were per

to publish a circular concluding with the words, "Judging the finished work, it is quite evident that W. H. & Co.'s zinc has a slight advantage over Hubbuck's, but for all practical purposes they can be regarded as being in every respect equal." On the other hand, where a newspaper published false statements to the effect that its circulation was 20 to 1 of any other weekly paper in a specified district, and that "where others count by the dozen we count by the hundred," it was held that the statements were more than mere puffs, but were definite statements of fact, and being wholly untrue, were actionable on proof of special damage. As the plaintiffs failed to prove any actual damage, the action was dismissed.2

FALSELY REPRESENTING THAT A COMPETITOR HAS CEASED TO CARRY ON BUSINESS.-False representations to the effect that a firm is about to retire from business, or is no longer in existence, are not defamatory, and are actionable only when actual damage has resulted. Thus, where an engineer and boilermaker brought an action against a newspaper, grounded on a statement to the effect that he had ceased to carry on business and that the firm no longer existed, the jury found that the words did not reflect upon the plaintiff's character and were not libelous, but that the statement was not published bona fide, and that the plaintiff's business had suffered injury to the extent of £120. A judgment for that sum was accordingly entered. So, where the agent of a publishing company knowingly made false statemitted. That this sort of puffing advertisement is in use is notorious; and we see rival cures advertised for particular ailments. The court would then be bound to inquire, in an action brought, whether this ointment or this pill better cured the disease which it was alleged to cure whether a particular article of food was in this respect or that better than another. Indeed, the courts of law would be turned into a machinery for advertising rival productions by obtaining a judicial determination which of the two was the better."

1 Hubbuck & Sons v. Wilkinson, Heywood & Clark, L. R. (1899), 1 Q. B., 86, 92, 94. Per Lindley, M. R.: "Even if each particular charge of falsehood is established, it will only come to this-that it is untrue that the defendants' paint is better than or equal to that of the plaintiffs, for saying which no action lies. It is not necessary to

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consider how the case would have stood, if the defendants had not been rival traders simply puffing their own goods and comparing theirs with those of the plaintiffs." Lyne v. Nicholls, 23 Times Law Reps., 86 (1906).

Ratcliffe . Evans, L. R. (1892), 2 Q. B., 524. Per Bowen, L. J.: "That an action will lie for written or oral falsehoods, not actionable per se nor even defamatory, where they are maliciously published, where they are calculated in the ordinary course of things to produce, and where they do produce, actual damage, is established law. Such an action is not one of libel or of slander, but an action on the case for damage wilfully and intentionally done without just occasion or excuse, analogous to an action for slander of title. To support it, actual damage must be shewn, for it is an action which only lies in respect of such damage as has actually occurred."

See also Jarrahdale Timber Co. (Ltd.) v. Temperley & Co., 11 Times Law Reps., 119 (Q. B. Div., 1894), where the plaintiff firm imported Australian jarrah timber, and a competitor dealing in karri as well as jarrah was restrained from advertising that they were 'the only importers of both timbers in the United Kingdom," or from stating directly or indirectly that they were the only importers of jarrah timber. Although it does not appear from the report of this case whether or not special damage was alleged, counsel for plaintiff relied upon Western Counties Manure Co. v. Lawes Chemical Manure Co. (see p. 383), and Ratcliffe v. Evans (above), in both of which cases the court pointed out the necessity of such an allegation.

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ments, some to the effect that the business of a competitor had been taken over by his employers, and others to the effect that it was going out of one branch of its business, a judgment for damages and an injunction was entered by a Canadian court against the agent and the company he represented. It may be noted that the statements had been acted upon by the persons to whom they were made and resulted in actual damage to the plaintiff.1 On the other hand, where a proceeding was instituted in the form of an action for slander against a lawyer who circulated a report to the effect that an insurance company was about to be taken over by a rival, a Scottish court refused to submit the case to the jury, being of opinion that the statement would not amount to slander, although it might be injurious to the business. And, where the evidence of damage was not sufficient, the court declined to restrain a company from falsely representing by circulars that a certain partnership was retiring from business, notwithstanding the fact that the circulars were issued maliciously and were calculated to keep customers away.3

Section 8. Misrepresentation by means other than words.

AMERICAN DECISIONS.

There may be acts which do not constitute libel or slander in the ordinary sense, but which have substantially the same effect upon the business of another. Thus where such conduct resulted in the loss of patronage it was held actionable to loosen a horseshoe recently put on by a blacksmith and to drive a nail into the horse's foot for the purpose of injuring the reputation of the workman.*

1 Sheppard Publishing Co. v. Press Publishing Co., 10 Ontario Law Reps., 243 (1905). Cf. Dudley v. Briggs, 141 Mass., 582 (1886).

2 General Accident Assurance Corporation (Ltd.) v. Miller, 9 Scots Law Times, 510 (1902). Per Lord Low: "No doubt the statement that one insurance company is to be taken over by another is likely to give rise to speculation as to the reason, but I do not see why it should induce the 'belief' in the public mind that the company to be amalgamated was in a weak condition financially."

Cf. Continental Insurance Co. v. Board of Underwriters of the Pacific, p. 377n; Baltimore Life Insurance Co. v. Gleisner, 202 Pa. St., 386 (1902); and American Insurance Co. v. France, 111 Ill. App., 382 (1903).

Concaris v. Duncan & Co. (1909), Weekly Notes, 51.

Hughes . McDonough, 43 N. J. Law, 459, 463, 464 (1881). Per Beasley, C. J.: "What, in point of substance, was done by the defendant, was this: He defamed, by the medium of a fraudulent device, the plaintiff in his trade, and by means of which defamation, the latter sustained special detriment. If this defamation had been accomplished by words spoken or written, or by signs or pictures, it is plain the wrong could have been remedied, in the usual form, by an acfion on the case for the slander; and, plainly, no reason exists why the law should not afford a similar redress when the same injury has been inflicted by disreputable craft." (N. B.-It does not appear whether the defendant was a competitor or not.)

Cf. United States r. Patterson et al., 205 Fed., 203, 300 (1913), where there was evidence tending to show that one of the agents of the National Cash Register Co. “ distributed small wires to other agents in his territory for the purpose of their surreptitious introduction into competitors' cash registers, if the customer gave opportunity to the National's agents for close examination of the competitors' cash register in the customer s "ossession." See also Attorney General v. National Cash Register Co., 148 N. W., 420

Likewise the omission of the name of a company may be actionable where it amounts to a statement that no such company exists. Where, for example, the owner of an express business in Boston brought suit against two competitors and a corporation publishing what purported to be a complete list of all reputable express companies doing business in that city, alleging that the defendant competitors induced the corporation to exclude the complainant from its publications by falsely stating that complainant's business was not conducted in a proper and reliable manner and by threatening, in case of a refusal, that they would not furnish data for such publication, that they would diminish the advertising obtainable by it and otherwise injure its business, the court expressed the opinion that the desire of the defendants to advance their own interests in competition was not a justification and held that upon proof of the facts alleged the complainant would be entitled to an injunction to protect him from the wrongful publication and to prevent the defendant competitors from attempting to procure this kind of publication in the future.1

Section 9. False claims to testimonials, medals, and other distinctions.

The reports of a number of cases disclose the fraudulent use by manufacturers, of testimonials, medals, or other distinctions awarded competitors. Under such circumstances, however, and in the absence of any attempt to pass off the goods of one manufacturer as those of another, the courts have refused to interfere."

(Mich. Sup. Ct., 1914), and petition and decree in United States v. Burroughs Adding Machine Co. et al.

In United States v. Standard Oil Co. of New Jersey et al. the Government contended that "the plan of pretending to the trade that competitors were overgauging barrels was one that was adopted and put into force by the Standard Oil Co. itself. It has cropped out here and there in this testimony that Standard Oil agents would go to the dealers and after gauging their cans or their barrels invariably found them incorrect and invariably found that the dealer was cheating his patrons, and sought in that way to get the business away from the independents." (C. C., E. D. Mo., Brief of Facts and Argument for Petitioner, vol. 2, pp. 529, 536-537.)

1 Davis v. New England Railway Publishing Co. et al., 203 Mass., 470, 478, 479 (1909). Per Knowlton, C. J.: "The defendant corporation professes to give the public a full list of all the reputable express companies doing business in Boston. While it does not say in express words that the list is complete, that is the meaning which the publication is intended to convey and does convey. Its list is false and misleading, to the plaintiff's injury. The direct effect of the false statement is to point those who want the services of an express company to other companies, and to divert them from the plaintiff. They are told, in substance, that there is no such person as the plaintiff, and no such company as the Northern Express Co. (plaintiff's company), engaged in this kind of busiAn intentional act of this kind, without excuse, is a violation of his legal rights. It is the publication of a falsehood concerning him, the direct and natural effect of which is to injure him in his business. The public is misled by the intentional publication of an incorrect list. But the gist of the plaintiff's action is the wrong done him by intentionally turning away from him those who otherwise would do business with him. He is entitled to a remedy for this wrong. The injury is to property, and it is not technically a libel upon the plaintiff." * This practice has been prohibited by statute in a number of States.

ness.

*

See p. 517.

AMERICAN DECISIONS.

The best known, if not the only case of this description in this country was decided by the Supreme Court of Georgia, which denied an injunction to restrain the Domestic Sewing Machine Co. from publishing statements to the effect that the exhibition committee of the State agricultural society had reported that the Domestic was the best family machine, notwithstanding the fact that the Singer Co. had been awarded a diploma for exhibiting the best family machine and the best machine for manufacturing purposes.1

ENGLISH DECISIONS.

A somewhat similar case had previously been decided in England when a manufacturer who had been awarded a prize medal at an exposition complained of the action of a competitor in selling pickles under labels bearing the words, "Prize medal, 1862." The court concluded that there had been no attempt to pass off the defendant's goods as those of the plaintiff, and refused an injunction.2

In a more recent case it appeared that extracts from an article in a medical journal commenting favorably on a certain patented system of treating disease had been reprinted in a manner calculated to lead readers to believe that they referred to a rival system of treatment. Urging that this was an attempt to appropriate the reputation acquired by the system thus favorably mentioned, and a species of unfair competition, the patentee sought an injunction. It was

1 Singer Manufacturing Co. v. Domestic Sewing Machine Co. et al., 49 Ga., 70 (1872). 2 Batty r. Hill, 1 H. & M. Ch. Cas., 264 (1863). After this judgment was rendered. and partly in consequence thereof, Parliament passed "The Exhibition Medals Act, 1863" 26, 27 Vict., ch. 119 (July 28, 1863), providing for the summary prosecution of any trader who (1) falsely represents that he has obtained a medal or certificate from the exhibition commissioners in respect of any article or process for which a medal or certificate has been awarded by the commissioners; (2) falsely represents (knowing such representation to be false) that any other trader has obtained a medal or certificate from the exhibition commissioners; or (3) falsely represents (knowing such representation to be false) that any article sold or exposed for sale has been made by, or by any process invented by, a person who has obtained in respect of such article or process a medal of certificate from the exhibition commissioners.

During the debate on this measure it was stated that "a monstrous system of fraud prevailed in regard to these medals, which ought to be checked without delay." (Great Britain, Parliamentary Debates, July 27, 1863, pp. 1483-1486.)

See also Green r. Archer, 7 Times Law Reps., 542 (Q. B. Div., 1891), where it appeared that the parties, who were architects, had, while conducting their business as partners, jointly designed and supervised the construction of many important buildings in London. Immediately after a dissolution of the partnership Archer circulated photographs of these buildings, bearing in large letters at the foot of each copy the words "Designed by Thomas Archer, R. R. I. B. A., 14 Sackville Street, Piccadilly," omitting all reference to the former partner. Green brought an action for libel and sought an injunction. Mr. Justice Denman gave judgment for the defendant, holding that the words conveyed no imputation upon the character of the plaintiff and did not allude to him as an architect, and, further, that there was no slander of title.