dissenting:
I am able to agree with the opinion and judgment of the court. The court below, at the request of counsel for plaintiff, instructed the jury that, as matter of law, the advertisement was “a libel on the plaintiff, and that the verdict must be for the *241plaintiff/’ leaving only the measure of damage for the consideration of the jury.
An instructed verdict was clearly erroneous. The witness Cron, the advertising solicitor of the Tost, to whom this advertisement came in the due course of business, was also the agent of the Post with whom plaintiff had dealt and negotiated when advertising in that paper. Cron testified that, before the advertisement was published, he went into plaintiff’s place of business, where the following occurred, “I walked in his store, and he said, 'Hello, sonny, I was just down at your boss’s office. Tie said there is a pretty good piece of advertising he has down there for me.’ I said, 'Well, are we going to run it?’ He said, 'Sure you are going to run it. I want it in.’ That was about all that was said. There were a few other remarks; we talked business or something like that.” This conversation was denied by plaintiff, hut it raised an issue of fact for the jury, going directly to the right of plaintiff to recover.
It is elementary that, if a person authorizes the publication of that which he considers libelous, ho waives all right to complain, and estops himself to claim damages for its publication. In Schoeplin v. Coffey, 162 N. Y. 12, 56 N. E. 502, the court said: “Proof was given upon the trial which tended to show that the articles printed and published in the several newspapers were sent out by the manager of the Associated Press, with the consent and by the authority of the plaintiff. After this evidence had been received without objection, it was stricken out by the court, and the defendant excepted. If the plaintiff consented to or authorized the publication complained of, he cannot recover for any injury sustained by reason of the publication be authorized. We think the defendant was entitled to have this evidence retained in the case and considered by the jury, and that his exception to the action of the court in striking it out was well taken.”
It would he absurd to hold that the statement made to Cron was not notice to the Post. He was the agent of the paper in charge of the advertising matter, and the agent with whom plaintiff was accustomed to deal. Had Cron, instead of taking *242the advertisement to Marks, the manager, taken it to plaintiff, and been notified by plaintiff and his attorney that it was libelous, and, if published, the Post would be sued for damages, can it bo conceived that my associates would have hesitated to hold that it was notice to the Post on the question of malice, as affecting the measure of damages ? Common justice demands that the rule should woi*k both ways. It, however, has not been seriously contended anywhere in this proceeding that Cron’s agency was not such as to make this statement, if made, notice to the Post. No objection was made by plaintiff’s counsel to the admission of this evidence, and, indeed, none could be made; hence it is too late now to assail it in order to avoid reversible error. It was the keystone of the defense, and failure to object at the proper stage of the trial, or to appreciate its fatal bearing upon plaintiff’s prayer for a directed verdict, cannot be corrected here. It was, therefore, for the jury to say whether the statement was, in fact, made by plaintiff. If Cron testified to the truth, it was the end of the case. It was certainly for the jury to pass upon the truth of this testimony.
While counsel for plaintiff, in their brief, try to brush aside this evidence by several pages of argument as to the improbability of plaintiff’s having made such a statement, the argument would have been more appropriate in presenting the case to the jury had it been permitted to pass upon the truth or falsity of the testimony regarding the making of. such statement. The truth of Cron’s testimony is strongly confirmed, both by plaintiff’s subsequent conduct and the testimony of Cron and the witness Fitzpatrick as to similar statements made by plaintiff after the publication was made, to the effect that the publication had been highly advantageous to him in a business way.
Error is assigned in the admission in evidence of advertisements or posters issued by the Durham Duplex Kazor Company from one to two yeárs after the publication of the. alleged libel. These posters were wholly irrelevant. It is true that they showed that the company was putting on the market a Demonstrator razor, but the advertisement complained of contains that statement. The startling claim is made by counsel for plaintiff, *243and apparently accepted by tlie court, that the evidence was proper to rebut tlie defense of justification. But this defense was taken from the jury by the court. If this evidence was proper on the question of justification, there must have been an issue of fact on that point, which should have been submitted to the jury.
.But the posters in question had no relevancy to the defense of justification. It was not denied by defendant that it was putting out a Demonstrator Kazor which -was retailed at 35 cents. This statement was contained in the alleged libel. The defense of justification w’as based upon the charge that plaintiff was advertising a Durham Duplex standard razor, when he was, in fact, selling a Demonstrator razor; and in support of that charge, they point to the inscription on. the handle of the razor illustrated in plaintiff’s advertisement bearing the trademark of defendant, “Durham Duplex,” when, in fact, it appears that those words alone have never appeared on the handle of any razor put out by the defendant company, and were not on the handles of the Demonstrator razors plaintiff was retailing to his customers at the time his advertisement appeared.
It is apparent that these posters, -which contained in large colored type defendant’s trademark “Durham Duplex,” and which defendant’s agents testified were issued for the purpose of advertising the trademark, were introduced for the purpose of directing attention from plaintiff’s unwarranted and deceptive perversion of the use of defendant’s trademark and to impress upon the jury, as was earnestly attempted at the bar of this court, that defendant was putting on the market a Durham Duplex razor of the exact description of the one sold by plaintiff; but nowhere do they connect these posters with a razor bearing 1 he wnrds “Durham Duplex” on the handle.
The vice president of the Duplex Itazor Company gave the only testimony hearing upon the policy of the company in selling the Demonstrator razor during the period covered by the posters and at the time of the publication of plaintiff’s advertisement and the publication of the alleged libel. He testified as follow’s: “The witness was thereupon asked if there was any essential *244difference in the present Durham Demonstrator razor and the one that was put on the market in 1912, to which he replied that the only change made was in the material in the construction of the razor, and also the handle was changed hy taking the printed matter off at Christmas, 1912, but the article itself was not essentially changed, it is made in the same dies; the handle is essentially changed in that the advertising matter was taken off of it. The witness thereupon identified a black handle razor, on the handle of which appears the words ‘Durham Demonstrator not to be sold,’ as among the first manufactured by his company and put out in 1912, and also identified another black handle razor as representing one of the kind put out hy his company up until the 1st of September, 1913.” It will be remembered that the alleged libel was published on the 9th of February, 1912.
The same witness, testifying as to the reason for publishing the alleged libel after having received a copy of the advertisement of plaintiff, said: “We had a conversation as to what was best to do; several ads were run by O’Donnell, and this last ad, the one in question, a copy of which came to my (J.esk, I saw that O’Donnell had put ‘Durham Duplex’ on the handle of our Demonstrator razor, not ‘Durham Duplex style,’ not a model of the Durham Duplex razor, not to be used with Durham Duplex blades, but he had taken a license with our trademarks that we had spent up to that time something like $750,000 to establish, and had placed it on the handle of a cheap model that we were getting out to demonstrate the character of the Durham Duplex blade. We immediately called the attention of the public to the fact that it was a fraud, in the advertisement that we ran.”
It will be observed that the razor sold by the company at the time the posters were put out was only of the same general type as, but of different appearance and of different “material in the construction of the razor” from, the one sold by plaintiff at the time of the publication of the alleged libel. This is important, since, regardless of any contention of counsel, it was the illustration appearing on the handle of the illustrated razor in plaintiff’s advertisement which it was sought to verify by these posters. They not only disagree with the illustration, but it *245appears that the policy of the company as to the sale of this type of razor had entirely changed. Hence the posters did not properly describe the razor actually sold by plaintiff, and cannot, therefore, be distorted into a confirmation of the truth of plaintiff’s illustration, which was the evident purpose sought by their introduction.
This evidence was most prejudicial to defendant. The record discloses that these large advertisements were posted on the blackboard in the trial court-room for impressive exhibition to the jury. If they were exhibited and described to the jury with one half the energy and plausibility which counsel employed in displaying them to this court at the argument, it is not difficult to conjecture the effect they had on the jury in passing upon the sole question left to it by the court, — the fixing of damages. Spectacular methods before a jury usually invite error.
The libel charged on its face shades closely to the line of justification. Plaintiff’s own testimony so largely consists of denials of facts testified to by reputable and disinterested witnesses as to approach self-impeachment, and the verdict returned, when viewed calmly in the light of the record, seems exorbitant. Confronted by these irresistible conclusions, I am convinced that • errors were committed which have resulted in the perpetration of a great injustice, which should be corrected by a new trial.
A petition for a writ of error to the Supreme Court of the United States was denied March 20, 1915.