This is an action of slander, in which the words alleged to have been spoken by defendant of the plaintiff are the following: “He is a thief; he is a d — d thief.”
In his answer, defendant admitted the speaking of the words, but denied that they were spoken falsely and maliciously for the purpose of slandering the plaintiff,, but because he believed that plaintiff had been guilty of stealing his property. ■ For a more specific answer, he states that he purchased of plaintiff a farm, in Randolph ■county, and plaintiff delivered to him possession thereof, ■ and prior to the speaking of said words, “ the. plaintiff unlawfully, and without the knowledge or consent of *52defendant, entered upon said land, and, by force, took and carried away and converted to his own use, .fixtures belonging to said land, and the property of defendant and then in defendant’s possession, to-wit: one sidewalk, running from the dwelling house on said premises to the-privy; also, a brick mound, built up in the front yard’ of said premises for flowers ; also, two large grain bins or cribs, which were located in, and a part .of, the barn on said premises, used for holding grain raised upon said farm: also, a lot of manure and other things belonging, to defendant by reason of the purchase aforesaid and of great value.”
To this plaintiff filed a replication, denying the facts alleged. On trial of the caaise there was a verdict and judgment for defendant, from which plaintiff has appealed.
The answer is ingeniously framed, and it is difficult to say exactly what are the issues it presents. It is not a plea of justification. It admits the speaking of the-words, but does not allege their truth, but, as we construe it, admits that they were not true, and states, as an excuse for uttering them, certain facts which led defendant to believe that they were true when uttered. It. is not a plea of justification, but only in mitigation. If words spoken amount, of themselves, to a charge of larceny, yet if accompanied with a specification of acts upon which the charge is based, which show that no such crime was committed, the party of whom the words were spoken has no cause of action. As, if .the words relate to the taking of property not a subject of larceny,' they will not be actionable. Ogden v. Riley, 14 N. J. L. 186; Upham v. Dickinson, 50 Ill. 97; Carmichael v. Shiel, 21 Ind. 66; Allen v. Hillman, 12 Pick. (Mass.) 101; Hall v. Adkins, 59 Mo. 146. But if some of the1 property alleged to have been stolen was the subject off larceny the action may be maintained. As if A should *53say'of B that he stole an acre of land and a horse," the property of A.
. In his answer defendant alleges that certain fixtures were taken by plaintiff from his farm, “ and other things belonging to the defendant, by reason of the purchase aforesaid.” If the defendant meant to éxcüse and not merely to mitigate the damages for speaking the words, the answer should have" been specific,. and alleged with precision the facts which excused him. If the other things, which it is alleged plaintiff took, were fixtures, it should have been stated expressly, so that upon the face of the answer the facts stated would show that no larceny was Committed by plaintiff; ’ '■ The court erred in treating the answer‘as stating a complete defence .to the action. "
It was also error to refuse the instruction asked by plaintiff to the effect that in order to excuse the speaking of the words defendant should show that' to every one to whom- he uttered them he stated the facts upon which he based the charge. If he spoke the words to ten men, and only made the explanation to nine of them, the explanation to the nine did not excuse the utterance ■of the words to the tenth man. That .he explained to nine would be admissible in mitigation, but not as a defence to the action. Mitigating circumstances, under •our statute, section 3553, maybe pleaded, and are ‘^admissible in evidence to reduce the amount of damages,” but not to defeat the action. Hall v. Adkins, 59 Mo. 148,. is not in conflict with the views above expressed. There the property alleged to have been stolen by plaintiff was not the subject of larceny, and the court (Hough, J.), said: “But if the defendant honestly believed that the facts * * '* constituted larceny, and so believing, and without malice, uttered the words on Ly to those to whom he communicated the. facts, * * * ■ -thus sending an antidote along with the poison, and showing *54a mistaken, view of the law, rather than a malicious purpose, the plaintiff cannot recover.”
Evidence of defendant’s condition in life, and circumstances, was admissible. Buckley v. Knapp, 48 Mo. 162, and cases cited.
The judgment is reversed and the cause remanded.
All concur.