¶1Opinion by
¶2The appellants issued notices to the plaintiff and to some of the latter’s customers that plaintiff was infringing appellants’ patent in certain goods, and threatening suit if plaintiff con*510tinued to make or Ms customers to buy such goods. It is admitted that the statement was false, the appellants’ patent having expired at that time; and the jury have found that the /notices were malicious, at least in the legal sense, that the appellants had no reasonable ground to believe them to be true at the time they issued them. Under these circumstances they were clearly liable to punitive damages” if the jury should find, as under the evidence they might, that there was not only legal malice, but an actual malicious intent to injure.
¶3But the plaintiff having disclaimed any demand for damages unless for .malicious issue of the notices, and even in such case limited his demand to damages actually or specially suffered, the learned judge practically withdrew the preceding part of his charge, and restated the case to the jury in the following words: “ Therefore, it comes to this: I wish this had been presented to me earlier. It would have saved a great deal of what I have said, but the position now is, if you find Mr. Smith made an honest mistake about this, give a verdict for defendant. If you find Mr. Smith did not make an honest mistake, but did it maliciously, then give a verdict for the plaintiff for the amount of the actual damages.” This was the close of the charge, and if there was any error in the preceding part, which however is not apparent, it was cured by this positive and explicit direction with which the jury were sent out to consider the case, and the law so laid down was in exact accord with what the appellants contend for here.
¶4The assignments of error cannot be sustained. Such of the appellants’ points as were not practically affirmed by the part of the charge above quoted, were based on the view that the court should declare as matter of law that if plaintiff and his customers knew or were informed that appellants’ patent had expired, their cessation of the sales and purchases could not be legally attributed to the notices sent by appellants. But, as said by the learned judge, the customers might not choose to stand lawsuits though convinced that they could win.. The question here was whether the notices had a tendency to deter customers from buying, and whether the latter were in fact so deterred. This was not for the court, but for the jury.
¶5_ The assignments in regard to the measure of damages are to the “theory of the court,” and fail to point out any specific *511error which the court is alleged to have committed. The rule laid down in the concluding and effective part of the charge was that, if the appellants’ action was malicious, the jury should give “ a verdict for the plaintiff for the amount of actual damages. ” To this rule the appellants can make no valid objection, and if the jury misapplied it under the evidence, the remedy was for the court below on rule for new trial.
¶6Judgment affirmed.