Barnett v. Loud

Braley, J.

The action is tort for libel, and the demurrer admits all the essential allegations of the declaration, from which it appears that at the time of publication the plaintiff was and has since continued to be an attorney at law engaged in the active practice of his profession in this Commonwealth. It cannot be doubted that the accusations, that he invited and allowed a vile and disreputable woman to frequent his office or place of business, and so conducted himself as to bring disgrace upon his office, and that he gambled “for money with cards in his said office during business hours,” were, if false and without justification, defamatory and actionable. The publication obviously tended to subject the plaintiff to public contempt and to injure seriously his reputation for integrity and moral worth not only as an individual, but as a member of the bar entitled to the confidence of the community. Atwill v. Mackintosh, 120 Mass. 177 . Morasse v. Brochu, 151 Mass. 567 . Dow v. Long, 190 Mass. 138 . Merrill v. Post Publishing Co. 197 Mass. 185 . Wynne v. Parsons, 57 Conn. 73 . May v. Brown, 3 B. & C. 113, 138.

But as the publication consisted of a general answer and claim in recoupment filed in an action brought in the name of the plaintiff’s assignee to recover for use and occupation of a room let -to the defendant as the plaintiff’s tenant, the demurrant contends that the publication is privileged.

It is settled by McLaughlin v. Cowley, 127 Mass. 316, 319 , that parties are absolutely exempted from liability for defamatory words published in the course of judicial proceedings, provided the statements are pertinent and material to the controversy. Wright v. Lothrop, 149 Mass. 385, 389, 390 . The alleged libel is contained in so much of the answer as related to recoupment, and while under the statute governing assignments any defence, counter claim or set off available against the assignor may be asserted against his assignee, a cross demand unless arising from *450 the contract sued on cannot be maintained. R. L. c. 173, § 4. Knitted Mattress Co. v. Griggs, 154 Mass. 5 . The right to recoup is the right to have unliquidated damages ascertained and applied in reduction of the plaintiff’s demand, although the defendant cannot have judgment for any excess. Bryne v. Dorey, 221 Mass. 399, 405 . Merchants Heat & Light Co. v. J. B. Clow & Sons, 204 U. S. 286 . The claim however must be a valid cause of action. Taylor v. Finnigan, 189 Mass. 568 . Eddy v. Coffin, 149 Mass. 463 . Whatever personal discomfort may have been caused by the acts alleged, they did not interrupt nor tend to interrupt the tenant’s possession. It is plain that he had no ground of complaint sounding in damages because of the failure of the plaintiff to discharge some obligation, or of his neglect of some duty, imposed upon him in the making or performance of the contract. Rogers v. Coy, 164 Mass. 391 . Bradley v. Rea, 14 Allen, 20 . Bennett v. Kupfer Brothers Co. 213 Mass. 218, 221 , and cases cited. Dushane v. Benedict, 120 U. S. 630 .

And the defendant having admitted by the demurrer that with express malice he prepared and published the defamatory words, which were wholly irrelevant to the issue, the justification on which he now relies is not a defence. McLaughlin v. Cowley, 127 Mass. 316 ; S. C. 131 Mass. 70 . See R. L. c. 173, §§ 90, 93.

The judgment for the defendant must be reversed and the demurrer overruled.

So ordered.