Opinion,
Mu. Justice Williams :This case appears to have been tried with care by the learned judge of the court below. The charge to the jury was a careful summary of the evidence and the general rules of law applicable to actions of this class; but in one particular the court failed to present the case adequately to the jury.
We find in the stenographer’s notes of the trial this entry: “ By agreement of counsel the defendant is permitted to introduce evidence under the plea of not guilty with the same force and effect as if introduced under the plea of justification, upon condition that he calls and examines A. J. Maloney” and other persons named. We also find that the plaintiff’s counsel in their third point requested the court to instruct the jury that “ The defendant having attempted to establish a justification, the proof must be as broad as the charge.” The answer of the court was: “ Affirmed under the agreement of counsel.” It would seem to be very clear, therefore, that one of the most important questions for the jury was whether the words, if spoken, were true. This seems also to have been the view of the plaintiff’s counsel, for in their fourth point they asked the court to instruct the jury that the plea of justification, if unsupported, should go in aggravation of the damages; and in their fifth point they asked the further instruction upon this branch of the case, that the “ defendant, in order to sustain the plea of justification, must prove the same character and weight of evidence as would convict the plaintiff if criminally indicted for larceny and embezzlement.” The answer of the court was: “ Affirmed, with the qualification that this is a correct general statement of the law applicable thereto; but *352there is no plea of justification filed in this case.” This would naturally be understood by the jury as equivalent to an instruction that while in other cases, in order to make a successful justification, it was necessary for the jury to be satisfied that the words spoken were true and the crime imputed to the plaintiff had actually been committed, yet this case was one to which the rule was not applicable, because there was no plea of justification filed.
The agreement of the parties entered upon the minutes of the trial was certainly as effective to open the door to this line of defence as a formal plea filed could have been, and the jury should have been distinctly told that, if satisfied that the words spoken were true, the plaintiff could not recover.
The learned judge had just called the attention of the jury to the evidence tending to show (we quote from the charge) that “ Mr. Thacher admitted the accusations were true; said at first that the amount was only a few hundred dollars, and he would return it......After a brief negotiation a settlement was effected whereby Mr. Thacher assigned his interest in the firm of Thacher & Woddrop to the legal representatives of Dr. Woddrop......After leaving the bank Mr. Thacher returned to the store and, after taking his personal effects, left, but before going he requested Mr. C. W. Woddrop to walk with him to the ferry, a few blocks away; as they walked along Mr. Thacher said he had admitted doing what he was accused of, but said he was no hardened villain or ordinary thief. He had done these things, as he had an expensive place to keep up, and he knew Dr. Woddrop was going to die, and he supposed the boys would want their money out of the firm, and if so, he could not carry on the business; so he had been sending goods to auction and selling goods, and had laid away the money to go into business for himself when Woddrop should go out of the firm.” Here was evidence upon which, if believed, the jury would have been justified in finding in favor of defendant, but this question was substantially taken from them by the answer to the plaintiff’s fifth point; and there is reason for fear that the jury understood that they were to inquire as to the speaking of the words, their effect upon the plaintiff in his business, and the damages to which he was entitled, but that they were not to inquire if the words *353spoken were true. Indeed it is difficult to see wbat other conclusion they could have drawn from the answer complained of. The other errors assigned are not sustained.
Judgment reversed, and venire facias de novo awarded.