H. H. & G. C. Markham and E. P. Smith, for respondents. Finches, Lynde & Miller, for appellants.

COLE, J. We are all clear in the opinion that this case must be decided upon the receipts offered in evidence, which constitute the contract, and fix the rights and liabilities of the parties. These receipts are plain and distinct in their language, and no good reason was suggested on the argument why they are not valid and binding upon the parties executing them. True, it was said by the learned counsel for the plaintiffs that the proof shows that Mr. Rockwell did not read the receipts, or know or understand that they contained a clause restricting the liability of the defendants. To this remark we answer in the words used by this and other courts when considering a similar question. It is not claimed that he was overreached or deceived otherwise than in the fact that he did not read or understand the contract which he signed; but that was his own negligence. It will not do for a man to enter into a contract, and, when called upon to abide by its conditions, say that he did not read it when he signed it, or did not know what it contained. Fuller v. Madison Mutual Insurance Co. 36 Wis. 599; Upton v. Tribilcock, 91 U. S. 45; Wheaton v. Fay, 62 N. Y. 275; Germania Fire Insurance Co. v. M. & C. Ry. 72 N. Y. 90; Hill v. Syr., Bing. & N. Y. Ry. 73 N. Y. 351.

Of course we are considering a case relieved from all pretence of fraud or imposition, for nothing of the kind was used in procuring the contract. The only reason for claiming that the plaintiffs are not bound by the restrictive clause in the receipts is that Rockwell did not read or understand that they contained such a restrictive clause when the papers were executed. But if he failed to read or understand the contract it was his own fault, and the plaintiffs alone are responsible for the omission. Therefore, under the circumstances, we all think that the contract is binding upon the parties, and it must be conclusively presumed that they understood its terms and assented to them. This being so, the question is, what was the extent or degree of responsibility assumed by the defendants in the transaction? A majority of the court are of the opinion that the defendants were only liable, under the contract, for gross negligence in the selection of the attorney to whom the plaintiffs' account was sent for collection.

On the delivery of the account to the defendants they gave

the plaintiffs a receipt to the effect that the account was to be transmitted by mail for collection or adjustment to an attorney, at the risk and on the account of the plaintiffs-the proceeds to be paid over or accounted for to the plaintiffs when received by defendants from the attorney. At the same time a receipt was signed by the plaintiffs, in the books of the defendants, stating the amount of the account, and that the claim was to be transmitted by mail to an attorney, at the risk and for the account of the plaintiffs. Such are the conditions of the receipts which constitute the contract between the parties, and the question, therefore, is, what liability did the defendants assume in the matter? On the part of the plaintiffs it is insisted that as the defendants held themselves out to the world as a collecting agency, when they received the account of the plaintiffs, they undertook either to collect it themselves, or remit the same to some suitable attorney in that part of the country where the debtors lived to make the collection, and that they became responsible for the negligence or misconduct of the attorney whom they employed for that purpose.

It well may be that such would be the responsibility of the defendants, were it not for the restrictive clause in the receipts. But that clause, if any effect is given to it, clearly limits that liability, for it provides that the account is to be transmitted to an attorney for collection at the risk of the plaintiffs. Such being the case, we 'hink the defendants are not liable for the acts or default of the attorney employed by them, unless in the selection of such attorney they were guilty of gross negligence; for it seems to us it was competent for the parties, by express contract, to limit the liability which the law would otherwise impose upon the defendants for the acts of the attorney employed by them to make the collection. We are not aware of any principle of law or public policy which condemns such a contract. In respect to the employment of sub-agents or substitutes, when provided for in the letter of attorney, Mr. Justice Story lays down the general rule to be: "In such cases it is clear that the original attorney or agent will not be liable for the acts or omissions of the substitute appointed or employed by him, unless, in the appointment or substitution, he is guilty of fraud or gross negligence, or improperly co-operates in the acts or omissions." Story on Agency, § 201. Notwithstanding the clause in the receipts, it is sought to render the defendants responsible for the loss of the money collected

by the attorney; in other words, virtually to make the defendants guarantors of the fidelity and integrity of such attorney, although there is not a particle of proof which tends to show that they were guilty of gross negligence in selecting him. We have not been referred to any case which carries the liability of an attorney or collecting agency to such an extent, under a contract like the one before us.

The case of Bradstreet v. Everson, 72 Pa. St. 124, was much commented on by counsel on both sides as sustaining their respective positions; but, as we understand that case, it does not sustain the views of plaintiffs' counsel. The court there decides in effect that a collecting agency which invites customers on the ground that it has facilities for making distant collections, and selects its agents to do its business, is liable for collections made by its agents, when it undertakes the collection, by the express terms of its receipt. But the court expressly say if the agency does not intend to assume such a liability it has it in its power to limit its responsibility by its receipt; and, as the receipt in that case contained no such restriction, the defendants were held liable for the collection made by one of its attorneys to whom it had sent a claim belonging to the plaintiff.

The majority rest the decision expressly upon the restrictive clause in the receipt. Perhaps a greater liability might arise in the absence of such clause; but this is a point we need not consider, as we all agree that the restriction is legal and effectual. The majority think that the defendants are only responsible for gross negligence in selecting the attorney to whom the claim was sent for collection. That view is so in conflict with portions of the charge of the court below, which were excepted to, in regard to the rule of diligence imposed by the contract upon the defendants, that it must work a reversal of the judgment.

Therefore, without considering any other point, the judgment of the county court is reversed, and a new trial ordered.

LYON and TAYLOR, JJ., dissent from the opinion of the court.

MARTIN J. EVISTON, Respondent, vs. WILLIAM E. CRAMER and others, Appellants.

Filed November 28, 1879.

1. A publication which charges that a person, while formerly holding the office of sealer of weights and measures and inspector of scales for a certain city, "tampered with" or "doctored" such weights, measures and scales, for the purpose of increasing the fees of his office, is prima facie libelous, as tending to bring the accused into public hatred or contempt.

2. On demurrer to a complaint in libel, which alleges that defendant made such charges against plaintiff "falsely, wickedly and maliciously,' the question whether the publication was privileged does not arise; as privilege does not extend to false charges made with improper motives or express malice.-[STATE REP.

Appeal from Milwaukee county court.

Cottrill, Cary & Hanson, for respondent.
J. J. Orton, for appellants.

ous.

COLE, J. In support of the demurrer it is insisted that the publication set out in the complaint is not upon its face libelIn that view we are unable to concur. It seems to us that the obvious tendency of the publication was to disparage the character of the plaintiff and bring him into public ridicule and contempt. Undoubtedly the whole article should be considered together, in order to determine its character. If we so consider it, it will be seen that it charges or states in substance that the plaintiff, while acting as the official sealer of weights and measures, and as inspector of scales in and for the city of Milwaukee, made a practice of "tampering" with such weights and scales, for the purpose of increasing the fees of his office. This is the meaning or sense which a person would naturally attach to the language used in the article upon reading it. There are particular instances given of what is called in the article "tampering" or "doctoring" the

weights and scales of individuals by the plaintiff, while in office, for the purpose of increasing his fees.

Now that such statements are prima facie prejudicial to the plaintiff, calculated to degrade him in public estimation, and bring him into public hatred and contempt, seems too plain for discussion. Nor are the injurious consequences of the publication neutralized or destroyed because the charges were made against the plaintiff after the expiration of his term of office as "ex-sealer of weights and measures;" for surely to charge a man who has held an office that he performed the duties of such office from corrupt and dishonest motives, in order to obtain unlawful fees, necessarily tends to expose him to the scorn and contempt of every right-thinking person.

But it is further insisted in support of the demurrer that the publication in question is privileged; that it was but a fair criticism by a public journal upon the conduct of a man while holding a public office, and that this was a matter of such public interest and concern as rendered the communication not actionable. Freedom of the press or exemption from censorship-the right to freely comment upon the character and official conduct of men holding public office-is a most valuable right, and one without which popular governments cannot be maintained.

Says Judge Cooley upon this subject: "The freedom of the press was undoubtedly intended to be secured on public grounds, and the general purpose may be said to be to preclude those in authority from making use of the machinery of the law to prevent full discussion of political and other matters in which the public are concerned. With this end in view not only must freedom of discussion be permitted, but there must be exemption afterwards from liability for any publication made in good faith, and in the belief in its truth, the making of which, if true, would be justified by the occasion. There should consequently be freedom in discussing, in good faith, the character, the habits, and mental and moral qualifications of any person presenting himself, or presented by his friends, as a candidate for a public office, either to the electors, or to a board or officers having powers of appointment. The same freedom of discussion should be allowed when the character and official conduct of one holding a public office is in question, and in all cases where the matter discussed is one of general public interest." Cooley on Torts, pp. 217, 218. In this case we are not called upon to determine how far a