The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1870-12-16
HE COUR T S.
UNITED STATES SUPREME COURT.
Tho Tappan Mercantile Agency Case-Privileged
Communications Of Aaencies-In :. :
What Cases Libellous. ! @S-

r.
WASHINGTON, Dec. 10, 1870
No 81. Le,ots Tappan rs. John ana Horace
Beardsley Error 10 the circuit Court J0r the
southern District or Nelo YorE.-The defendants In
error constituted the firm OF IL. BeardsIey Co.,
merchants, at Norwalk Huron county. Ohio. The
plaintiff In error carried on, In New York, the
business OF mercantile agency, and in the course
M his business published concerning the firm, that
heir store would probably be soon CLOSED, as the
wife OF one OF the brothers had applied for divorce
ana alimony and he had In consequence put his
property out OF his hands, 1t also said the firm
had been sued. Subsequently the report was con-
nrmed, ana II was added that there was
no doubt OF the firm being able to do prosper
Dus business so long as they were honest, whic h
would be 80 long as suited their INTEREST,"
The 1rm sued TO recover damages for the libel and
defendant pleaded that the statements published
were confidential communications made In good
faith In the course OF business ON proper occasion
and without malice On the trial the Court excluded
evidence offered by Tappan to show the usefulness
Of mercantile agencies In the conduct of internal
trade and commerce, ON the ground that evidence
had been given part OF the Beardsleys tending
to impeach to bring into doubt the general legality
or usefulness or the business. The Court charged
the jury that the agency conducted by Tappan was
In its general purpose and features both lawful and
useful, and that information, however defamatory,
communicated by him In good faith, he believ-
ing 1t to be true, to merchants applying to him
for information to guide them In their
business was IN law o privileged communication.
for which no action could be maintained by the
party DETAINED by 1t except on proof Of express
malice. was, however, further charged that Tap.
pans mode Of doing business deprived him Of any
nifv rulp nf nriUi
legged communications. The employment by him Of
a clerk or agent to make the communication, and
the employment Of a clerk or agent by his merchant
subscriber TO obtain or receive 1t, were each alike
charged to be incompatible with the secrecy or
privacy enjoyed by those rules. The instruction on
this head in full was as follows, it having been
shown that subscriber Of Tappan had asked for the
Information given:-
That the merchant to whom such information given.
aefendant acting good faith being lawfully authorized
70 se ~ there was N ,ne sense o. me aw IN ancn case
tie DEFENDANT in this suit y communicated by HIM
ssarsss !ss ssians'as sssd psaSs
me reports OF the case would have come within
S GIVEN
Defendants book BY person other
ns ener other. Of his and IN
the hearing of CLERKS and that they also read by
.srts their inquiries
the actually and personally
interested In obtaining information conccrnng the plaintiffs
se asking for Information had in law hear
only BY defendant himself ana that the reading Of said
words by person IN defendants employ with bis pers
= employ IL
Ys g
the rue Of law as % Rryiedsed ana that
S.. IL the
had been made the trial to prove them be true.
Tappans counsel excepted to this instruction
save as to Its first sentence and requested the Court
to instruct the jury on the law OF privileged CON-
muncations thus
F ,S,s the privilege .ppe:to made
read S Q, n the hearing Of the clerks employed him
such clerks necessary the
sne Of the ana employed
me words 4e 70 OF SsP % as that
sabserbeT' provided such clerk.
were conhdentialy employed therein.
But the Court refused to charge or instruct the
bury in this manner and the verdict was Tor the
plaintiffs $4,000. The case was commenced in 1s49
and tried in the District Court in 1851. In 1864
motion for new trial was make before Judge Nelson
rhe Circuit Court having overrued exceptions
taken In the District COurt), which was denied.
The case then came here, where it was now argued,
counsel for plaintiff in error, after stating the con-
cations, maintainln that the term .'duty as used
therein is not confined TO duties which are binding
In lay, and, therefore OF perfect obligation; but on
the contrary, includes 'moral or social duties
OF imperfect obligation" No extreme or
m,,p pa,an mi nicely has marked the ap.
Df special pleader nor the carriage of
stole Is required in making privileged communl-
cation. fairly warranted by any reasonable occa-
sion or exlgency, and honestly made, such commu-
ncatlons are protected for the common convenience
and welfare Of society, and the law has not re-
tn ma Ea with
limits. The presence OF o third person not inter-
ested In or connected with the subject matter has
not been deemed Objectionable, when 1t was not
sought or permitted wantonly but from necessity
or even from motives OF prudence or reasonable ex-
pediency Where the nature OF the case has re-
CURED It and important interests would be
promoted thereby very considerable degree of pub
lclty has been allowed in privileged communica-
be allowed or OF secrecy that must be
observed In making privileged communications, all
the reported judicial determination hold on uniform
doctrine Liberty Of speech or publication is not
permitted beyond the actual eXigencies Of society,"
But within That range It is permitted in social inter-
course and all lawful business. AS to the business
IN question, it Is said that the procuring and COM
municatin0 such information. though not done gra-
lawful and useful by every tribunal before which It
has been arraigned, and by every judicial mind
Including the learned Judge 1.-THE late Judge
Betts) who presided at the trial OF this
s,es o tS as eminent and
son, VINO heard the motion for a new trial. The
common sentiment OF the mercantile class has sus.
tanned the business, and, In consequence, 1t has
grown up along with the rapidly expanding wealth
and commerce of the country. Proper precautions
and safeguards IN its management are not less i'm
perativey dictated by self-lnterest than by morality
Tne practical efficacy OF those which have been de-
vsea and employed is vindicated by theInfrequency
oil complaints or law suits; that, at most, fourteen
suits Tor defamation have occurred In so wide-
spread business during the thirty years OF its ex-
istence, only this one having attained 10 any sue
cess Is pregnant evidence that its action is nnocu
GUS: All Ihe Judges ana private persons
whose concurring opinions thus testify TO the
value and utility OF this business knew that
by no possibility could 1t be conducted without the
aid and cooperation OF agents employees and the
judgc who tried tabs cause was the FIRST to discover
In that indispensable Ingredient the means OF its
Inevitable destruction. Perhaps the refusal Of q
new trial has added another and powerful voice In
favor OF this idea; but II So IL hoped that fuller
consideration will lead to It's being recalled.
The counsel Tor the defendants In error maintain
the position assumed by the Court below In respect