The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1890-12-20
THERE WAS NO LIBEL.
The Montana Lumber and Manufac-
turing Company Beats
Often.
His Reputation Not Injured by
Publishing Him as q
Deadbaat.
Judge Fleiscllcr Decides tho Controversy
in Which the Jury Could Not
Agree on Verdict.

Judge Fleiscllcr Decides tho Controversy
in Which the Jury Could Not
Agree on q Verdict.
Justice Fleischer yesterday rendered his
decision in the case of the Montana lum-
Der and Manufacturing company against
Joseph Often. The Jury which tried the
suit disagreed and both sides consented to
allow Judge Flelscher to decide. This he did
yesterday, finding that Often was in
debted to the company for $3.50; that tho
company had committed no libel in pub
fishing Often in the list of bad debtors;
and assessing the costs, amounting to about
S25, to Often The decision in full i6 us
follows:
'tThis action is brought to recover the
sum of $3.50. The defendant having an
swered to the complaint, sets up by way OF
n counter claim damages to the amount of
$685. based upon the allegation that the
plaintiff had injured his reputation and
business by publishing or causing to be
published his name OH dead beat list and
BY notifying him through the agency OF a
threatening letter that unless he paid this
bill Of $3.50 he would be published ms
dead beat and would thereby lose his credit
among the merchants of Helena. And 1t IS
further set up that he was 80 published and
that the injury done him was prompted by
malice.
"A Jury trial was had. The jury dis
agreed: an agreement by attorneys there
after having been filed that the decision OF
the above action upon all questions at issue
shall be submitted to Chas. W. Fleischer,
the Justice before whom the same was tried.
upon the evidence introduced before the
Jury which disagreed
Joseph Often, the defendant, in his
testimony, does not deny the debt, but
claims that said amount 80 owed was to be
paid by work. He relates conversation
had with Gabauer, the manager Of the
Montana Lumber and Manufacturing COM
pany, and states that in the conversation
Gabauer had told him that he had some
work for him to do. No contract that said
debt should be paid in work has been PROV,
en-. The court is of the opinion that said
no reason existed why said debt should not
be paid. ....- 49,. son4 ~
the Montana Lumber and Manufacturing
company to Jos. Often threatening that
they would publish him in the dead beat
ISOLATION. This letter has not been pro
duced. 1t is claimed that the wife of Dit
ten received the letter and burned 1t. Dit
ten never saw it or read it, and tried to
prove the contents of it by what his wife
had told him. As far as the receiving OF
the letter and the contents are concerned,
the court has to disregard it wholly as hear
say testimony, no other testimony of the
identity or contents of said letter having
been introduced. It is, however, proven
that circular had been issued to the mem
bers of the Andrews and Olds Protection
association. Southmayed testified to that,
also Turner, making it known to the mem
beers, or at least to those who testified. that
Often owed the Montana Lumber and
Manufacturing company $3.50. which after
a space of three or four months had not
been paid, although frequent demands were
made for the same. -.
"Ditten therefore could not obtain credit
from either Southmayed or Turner. Turner,
however offered Often the money to pay
the bill. Turner said that it would be
against the rules of the association of
which he is a member to give Often credit
for goods before said bill had been paid.
Often, however, obtained credit IN his
wife's name.
"As to the claim for damages, Often in
his testimony stated that he suffered no
damage except that Southmayed, the mana
ger of the Paynter drug store, refused him
credit. At the time Often was indebted to
the firm $65. Mr.. Turner testified that he
would have still credited Often if he was
not bound by his pledge to the Andrews and
Odds Protective association. In the opin-
ion of the court there did not accrue any
damages to Often. The Montana Lumber
and Manufacturing company reporting
D,ttsn to the Andrews and Odds Merchants
Protection association IS being indebted to
them in the sum of $3.50 could hardly be
taken as SANDER or libel. In the first place
there has been no evidence introduced
which would indicate SANDER or libel. Dit
ten owed the amount according to his owu
admission, and had not paid the same,
l IL do nRf
made. Consequently the Mountains
Lumber and Manufacturing Company
, only told the truth. The court can see nc
malice in the com pany's action by letting
tho merchants know the fact that Otter
was indebted to them, and that on accoun
! Of such debt Often could not obtain oredi
I for goods. / do not think the company hat
committed u libel. If & servant had WORKED
: for q company and for such work the COM
pany was indebted to him, and after de
, mand refused to pay him, ana such servan
should notify others OF this fact and on &C
T hire another servant. do not think there
any Islander or libel. The same, think
would be the case if one owes II merchan
for bill of goods, and after demand ha'
!. been made he refused to pay. If tn
merchant is SO disposed to inform othe
! merchants of the fact that he could not e
: his money from this person. and IL on sue
; information credit is refused to the debtor
!. do not think that an action for libel woul
u lie provided the facts so stated are true.
: 1.-The case of Muetze vs. Tutceur, in the 81
preme court of Wisconsin has been cited j
support of this action for libel. i do nc
think that it applies to this case at al
They sent and caused the association I
send by mail, demands for payment {
debt. which were enclosed in an envelop<
: and the business card of the associatio
q was printed on the same, also that it VIZ
+ for the collection of bad debts. The letts
= WAS one which threatened him that in cas-
} he refused to pay the bill his name woUl
n be published in book in a list OF person
:, not worthy of credit, which book would /
= distributed to all members in tho Unite
l. States and Canada. and that suoh public,
IL tion was made. They sent through Il
mails letters. and on the envelopes wei
printed clause 'for collecting bad debts
5. and distributed books with the plaintiff
n name upon the list of bad debtors. In tn
case it is held that there was sufficient pull
> location for libel.
le mo such fact has been shown in til
y case at issue here no letter of such natu
having been introduced, OF q list with Il
y name of Jos. Often placed among ba
a. debtors. think malice can only exist
"a an act is done without just cause and e
- cuse. It has not been shown in the tri
II that it was q wicked and mischievous intel
ton of the Montana Lumber and Manufa
turing company to do a wrongful act Will
. | ont inst cause and eXcnae