The opinion
MATHEWS, Circuit Judge
(concurring in part, dissenting in part).
I concur in the result and, except as indicated below, agree with what is said in Judge NETERER’S opinion.
I agree with Judge NETERER that the basis of this action was the letter which appellee wrote to Young’s Market on June 2, 1931. I agree, also, that the other letters introduced by appellee were admissible in evidence, but I think they were admissible only for the purpose of showing malice. Testimony concerning any loss or damage which they, caused was, I think, inadmissible. The admission of such testimony cannot, in my opinion, be justified upon the ground suggested by Judge NETERER, namely, that all the letters were in furtherance of a plan and scheme which “culminated” in the letter of June 2, 1931. The only damages claimed or alleged to have” been suffered by appellee were those which resulted from that one letter. Nothing was claimed on account of previous letters, or on account of any plan or scheme. I therefore dissent from Judge NETERER’S holding that it was proper to admit the testimony of the vice president of the May Company and other witnesses to the effect that appellee’s product “was taken off sale in 1928 because of letters received by [the May Company] from appellant,” and that the May Company “had contemplated placing [appellee’s product] in other of its stores,” but did not, as it was “not wanting to' buy litigation.” I think that the admission of this and other similar testimony was error, but that the error was cured by the following instruction to the jury:
“Now, with reference to the various letters that were offered in evidence other than . . . the letter [of June 2, 1931} that is pleaded and upon which the damage is based. You cannot base your damages or verdict for damages, in the event you should find damages, on any of those letters. . . . They are offered and were offered for the purpose of showing malice. If they show or tend to show a continual desire or intention on the part of the de *207 fcndant to injure the plaintiff, then you may consider them. That is their purpose, and not for the purpose of showing damage, as is the letter [of June 2, 1931] which has been pleaded in the complaint. . . . ”
By this instruction recovery was limited to damages resulting from, or based upon, the letter of June 2, 1931. If a better or more specific instruction was desired, it should have been requested. There was no such request.
The judgment should be affirmed.