¶1(dissenting.) The plaintiff was in the employ of the Waterbury Watch Company as advertising agent, editor, and publisher of a monthly publication issued by that company. He gave the work of printing the paper to the firm of Fleming, Brewster & Alley, of which defendant was a member, from July to November, 1888, when, owing to their delay in doing the work, he took it away from them because his employers charged him with neglecting the business. The defendant called upon plaintiff about the matter, and when he left was very angry, and said that he would see that plaintiff regretted his action. After this, Mr. Merritt, the manager of the Waterbury Watch Company, called upon the defendant and told him that he was upon an investigating tour in relation to Mr. Bond, (the plaintiff;) asked if he knew why the work was taken away from his house. Defendant said he did not know, exactly; Bond had claimed the company was dissatified at his not getting the paper oút promptly, and had taken it away on that account. Merritt then said: “Have you ever paid Bond any commission?” Defendant said: “No.” Merritt then said: “Well, I have heard some things about Mr. Bond that are with regard to commissions that I was investigating. I thought I would come up, and see if you knew anything about why he took the work away,—whether he had any idea about it.” Merritt then told defendant a circumstance about a Mr. Thompson, who claimed that he used to *518do the company’s work, and afterwards there was a job that the company had done, which Merritt supposed Thompson was doing, but it was given to somebody else. Merritt told defendant that he spoke to Thompson, who said: “We don’t pay commissions to any of your employes is the reason we don’t get your work. ” That Merritt asked him what he meant by that, and Thompson said he had been compelled to pay the company’s advertising agent, and, as they had but one, and that was Mr. Bond, (the plaintiff,') Mr. Merritt supposed it was Mr. Bond. Upon hearing this, the defendant said to Merritt: “We have done a little work for Mr. Bond, and loaned him some money which he has never paid.” Also, that “he did not expect to be paid for the work done, and money loaned to Mr. Bond. ” Merritt went away, consulted with his “folks” in relation to it, and, as he was about going to Europe in a short time, “made pretty short work of it,” and discharged Mr. Bond. The defendant was perfectly calm during this interview. Merritt was asked on cross-examination, by defendant’s counsel, whether Mr. Brewster did not speak of the work done for Mr. Bond as one of the ordinary courtesies of business, but Merritt’s answer was: “It is difficult for me to say that he did.” Subsequently to the plaintiff’s discharge from the employment of the company, he called upon defendant, and said: “Brewster, I don’t understand how you could permit yourself to induce Mr. Merritt, the manager of the Waterbury Company, to believe that I had withdrawn work from you because you declined to pay a commission, or give me some consideration for it; nor can I understand that you induced him to believe that you ever gave me a eonsidation. I understand that you told Mr. Merritt that I had exacted a commission from you; and you know it is false, and I don’t understand why you should make it.” The defendant was confused for a moment, and did some figuring on the desk with his pencil, and then turned to the plaintiff, and said: “Well, Bond, I did wrong, I admit. I don’t know why I should have said that you received a commission from me, or why I should have induced Mr. Merritt to believe it, when there was no truth in it.” Plaintiff then said: “Mr. Brewster, I think you don’t, or didn’t then, appreciate the injury you were doing me. Not only was that the cause of my losing my position, but it has also seriously injured my reputation.” To which defendant answered: “I regret it very much. I was angry at the time I said it, and there was no truth in it.”
¶2The jury, the sole judges of the fact, have by their verdict established the truth of the evidence given on plaintiff’s behalf where it conflicts with defendant’s testimony; and from the facts, as detailed above by the plaintiff and Merritt, they were justified in finding that the defendant, out of a feeling of resentment towards plaintiff for having taken his work away, seized upon the opportunity offered by Merritt’s inquiries to do the plaintiff an injury, by insinuating, if not openly charging, that he had exacted a commission, in the shape of gratuitous services and pretended loans, contrary to the duty he owed his employers. The words begin with a denial that commissions were exacted, but they were immediately followed by a statement of fact calculated to convey an exactly opposite impression; and spoken, as they were, to plaintiff’s employer, with the knowledge that he was investigating alleged offenses of that character on the part of plaintiff, the words were certain to give the impression that the offense had been committed, and, being spoken of plaintiff in his capacity of employe, and with reference to his duties, they were actionable per se. Fowles v. Bowen, 30 N. Y. 20.
¶3The evidence of Merritt substantially sustains the allegations of the complaint as to the words alleged to have been spoken. The words as set forth in the complaint are: “We have not paid him any commissions. We have lent him money which he has not repaid. We have done printing for him for which no charge has been made.” No question can arise as to the proof substantiating the charge in the complaint. The appellant’s objection on *519this ground was not well taken. Nor can it be, with any show of reason, urged that the words were, considered in connection with the circumstances under which they were uttered, innocent, or tlfat they did not impeach the integrity of plaintiff in his vocation, or were not defamatory in their nature. All appellant’s arguments on this point are based upon the theory that the defendant expressly stated that plaintiff did not exact a commission, and that what was further said was the mere statement of a harmless fact; but the plain intent of the words was to accuse plaintiff of taking what was equivalent to a commission. It was as if defendant had said: “We have not paid him a commission directly, by way of a percentage upon the work, but we have done so indirectly, by making pretended loans which we do not expect to be repaid, and by doing work for which we do not expect any payment.” The jury so understood the language, and no one could misunderstand it. As the words were actionable per se, it was not necessary to prove special damage. If it had been, however, the discharge of plaintiff from his employment seems to have been the direct consequence of the defendant’s slander. He was charged with having caused plaintiff to lose his situation, and he did not deny it.
¶4The exceptions were not well taken. There was no error in admitting evidence of plaintiff’s business relations with his employers. As the alleged slander was with respect to his business and duties, how could he prove his case without such evidence? The language of the court, “I think it may be important to show that, as showing a motive which led to the utterance of the slander, ” in admitting the evidence, was not the subject of exception on the ground that the jury might regard it as an adjudication that a slander had been uttered. No evidence of slander had been then given, and the jury could not have construed it as referring to anything but the slander as alleged, but not yet proved.
¶5Appellant argues an “exception at folio 21,” but no such exception is in the case. There is an exception to the allowance by the court of evidence to show that the charges which Merritt told defendant one Thompson had made against plaintiff did not refer to the latter. Without this proof the jury might have regarded the plaintiff as actually guilty of the offense charged by Thompson, and I think it was proper to permit him to show that that charge was not true. The argument of defendant, however, is that the jury were influenced by it, as it tended to shift onto him the results of the words uttered by Thompson. But the judge, in allowing the testimony, expressly stated that defendant was in no way responsible for the truth or falsity of that statement, and that he should so charge the jury. But the evidence itself would not have the effect suggested by the appellant. It was merely the statement by Merritt that he had since learned that the charge of Thompson did not refer to plaintiff. The jury, therefore, might still consider that the discharge of plaintiff by Merritt was as much due to Thompson’s charges as to defendant’s, since it was only after the occurrence in question that he learned of plaintiff’s innocence. Error is alleged with respect to a refusal to charge, to which defendant excepted, but the error is not pointed out on the brief, and upon reading the case I do not find any. The other exceptions in the case are disposed of by the conclusions arrived at above in respect to the main questions in the case. The judgment should be affirmed, with costs.