property; where such act is done maliciously, therefore, the injured person should be entitled to exemplary damages, and it would be immaterial whether malice was implied from the nature of the act itself or inferred, as a fact, from all the circumstances under which it was committed. The question is whether the wrong was done willfully and without lawful justification or excuse.

Whatever the decisions of the other states may be, there seems no just ground for distinguishing between malice in fact and malice in law, in respect to the right to exemplary damages, in action for libel and slander, and the decisions. of this state make no such distinction. In Buckley v. Knapp, 48 Mo. 161, an instruction was approved which authorized the recovery of punitive damages, upon implied malice alone, and that decision was followed in the subsequent case of Clements v. Maloney, 55 Mo. 359, and the doctrine has, since these decisions, been regarded as settled.

372 It is said in Bergmann v. Jones, 94 N. Y. 62: "The falsity of the libel is sufficient proof of malice to uphold exemplary damages, and plaintiff's right to recover them is in the discretion of the jury. When the falseness of the libel is proved, as a general rule, it is sufficient to warrant the jury in giving exemplary damages." This ruling was approved by the same court in Warner v. Press Publishing Co., 132 N. Y. 183, and expressly followed in Hintz v. Graupner, 138 Ill. 158. To the same effect is the case of Blocker v. Schoff, 83 Iowa, 269.

4. Exemplary damages may always be given in suits for slander when the words are maliciously spoken, but whether such damages should be given, in any case, is a matter within the discretion of the jury. In order to show good faith and want of malice the defendant has the right to put in evidence all the circumstances under which the words were uttered, and if such circumstances tend to rebut malice, such damages could only be awarded in case the words were maliciously spoken, but may, in themselves, be sufficient proof if malice is implied therefrom.

Plaintiff, by innuendo, charged that defendant, by the slanderous words used, intended to impute to him corruption in office. Defendant, by answer, and in mitigation of damages, admitted that the words spoken had respect solely to plaintiff's official conduct. Defendant offered, as was his right to do, evidence tending to prove the circumstances

AM. ST. KEP., VOL. XLIII. — 38

under which the objectionable words were used in order to prove good faith and want of malicious intent. As has been said, defendant, as an interested citizen, had the right to make reasonable comment and fair criticism upon plaintiff's official conduct, but he had no right to go beyond that and slander him. It was, in view of all the circumstances, for the jury to say how far the evidence mitigated the malice, 873 if at all, and to award the damages accordingly. We think the effect of the instruction on the measure of damages was to ignore this defense, and, as the question of exemplary damages was a matter independent of the right to recover, the error was not cured by the first instruction, which required a finding that the words were maliciously spoken, in order to a recovery for any amount. Exemplary damages are given by way of punishment, and the jury should be so instructed thereon as to leave no doubt on the subject.

5. There was no error in refusing to permit defendant to testify as to the motives which actuated him in speaking the defamatory words, so far as the testimony affected the right to recover compensatory damages. The effect would be the same, though he meant to say one thing and said another. He is answerable for so inadequately expressing his meaning: Newell on Defamation, Slander, and Libel, sec. 22, p. 301; McGinnis v. Knapp, 109 Mo. 148.

But the motives or purposes with which the words were spoken lie at the very foundation of malice. They are the very conditions upon which exemplary or punitive damages are predicated, and no good reason appears why defendant should not be permitted to prove what his motives were.

Odgers says: "In all cases the absence of malice, though it may not be a bar to the action, may yet have a material effect in reducing the damages. The plaintiff is still entitled to reasonable compensation for the injury he has suffered; but, if the injury was unintentional, or was committed under a sense of duty, or through some honest mistake, clearly no vindictive damages should be given. In every case, therefore, the defendant may, in mitigation of damages, give evidence to show that he acted in good faith and with honesty 374 of purpose, and not maliciously": Odgers on Libel and Slander, 317.

"Upon principle the spirit and intention of the party publishing a libel are fit to be considered by a jury in estimating the injury done to the plaintiff; and evidence tending to

prove it cannot be excluded simply because it may disclose another and different cause of action": Starkie on Slander and Libel, sec. 639.

"The intent—meaning the intent to effect certain conse quences-with which an act is done is material on the question of the amount of damages; the absence of a bad intent will mitigate the damages; the presence of a bad intent will aggravate them": Townshend on Slander and Libel, sec. 91.

We think evidence of the intention and motive of defendant was admissible for the purpose of mitigating the punishment, by way of exemplary damages; but the jury should have been cautioned not to allow such evidence to operate as a defense to the action, or to mitigate the actual damages sustained.

6. It does not appear upon the face of the acceptance offered in evidence that it authorized any particular person to collect the amount due for putting in the curbing, yet delivery to, and possession by, one who had only done a small portion of the work was a circumstance which may have given the holder an advantage, and we think the certificate should have been admitted for what it was worth. The transaction, in which the certificate was issued by plaintiff, was commented upon by defendant, in the discussion in which the slanderous words were used, and defendant had the right to place the whole matter before the jury for the purpose of showing good faith and want of actual malice.

For the same reason defendant should have been permitted to show what he had been told by others in 375 reference to this acceptance: Blocker v. Schoff, 83 Iowa, 265; Orth v. Featherly, 87 Mich. 320.

7. There was no error in refusing to permit witness Lane to testify as to his understanding of the slanderous words used by defendant. A witness may testify to the speaking of the slanderous words "together with all the attendant circumstances and connections, the existing facts; and, after having done so, it is for the jury to determine from the evidence. . . . what was meant ": Newell on Defamation, Slander and Libel, 308, and cases cited in note.

For the errors noted the judgment is reversed and the cause remanded.

BARCLAY J., absent; the other judges concur.

SLANDER-PRIVILEGED COMMUNICATIONS.-DISCUSSION OF OFFICIAL CON. DUCT: See the extended note to Shurtliff v. Stevens, 31 Ám. Rep. 709, and the notes to Vanderzee v. McGregor, 27 Am. Dec. 158, and Bodwell v. Osgood, 15 Am. Dec. 232.

SLANDER-PRIVILEGED COMMUNICATION A QUESTION FOR THE COURT.— Whether a communication is privileged is a question of law: Jones v. Forehand, 89 Ga. 520; 32 Am. St. Rep. 81; Fresh v. Cutter, 73 Md. 87; 25 Am. St. Rep. 575, and note; Jellison v. Goodwin, 43 Me. 287; 69 Am. Dec. 62. SLANDER-OFFICE OF THE INNUENDO.-The office of the innuendo is merely to explain the words spoken: Patterson v. Wilkinson, 55 Me. 42; 92 Am. Dec. 568; Coburn v. Harwood, Minor, 93; 12 Am. Dec. 37, and note at page 45; McLaughlin v. Fisher, 136 Ill. 111; Powell v. Crawford, 107 Mo. 595. See, also, the extended note to Van Vechten v. Hopkins, 4 Am. Dec. 349.

SLANDER-IMPLIED MALICE-DAMAGES.-Malice is implied from the use of opprobrious epithets which are slanderous per se; and proof of special injury is not necessary to a recovery of damages: Savoie v. Scanlan, 43 La. Ann. 967; 26 Am. St. Rep. 200, and note. Where the proof shows that actionable words were spoken by the defendant, and that a slanderous charge contained in them was untrue, the law will imply malice, and the jury may award exemplary damages: Hintz v. Graupner, 138 Ill. 158.

SLANDER.-EXEMPLARY DAMAGES IS A QUESTION FOR THE JURY: Wimer ▼. Allbaugh, 78 Iowa, 79; 16 Am. St. Rep. 422. The measure of damages in an action for slander is a question for the jury to consider relatively with that of malice: Davis v. Ruff, Cheves, 17; 34 Am. Dec. 584. In actions for libel and slander questions of damages and malice are mixed questions of law and fact, of which courts are more competent to judge than juries are: Savoie. Scanlan, 43 La. Ann. 967; 26 Am. St. Rep. 200. See, also, the extended note to Terwilliger v. Wands, 72 Am. Dec. 429.

SLANDER EVIDENCE IN MITIGATION OF DAMAGES.-Facts tending to show that there was no actual malice may be proven in mitigation of dam. ages: Hintz v. Graupner, 138 Ill. 158. See, also, the extended notes to Ter williger v. Wands, 72 Am. Dec. 430, and Alderman v. French, 11 Am. Dec. 130.

EGGER V NESBITT.

[122 MISSOURI, 667.]

VENDOR AND PURCHASER-CONTRACT FOR SALE OF LAND-OFFER AND ACCEPTANCE.-An offer by a vendor by letter to execute a quitclaim deed to land upon the payment of a certain sum, accepted by the vendee by letter on condition that other deeds and conveyances of the title to the land are turned over to him, does not constitute a contract which can be specifically enforced. In order to constitute such transaction a valid contract, the acceptance must be unconditional, and in strict accordance with the offer.

VENDOR AND PURCHASER-OFFER TO SELL LAND.-CONDITIONAL ACCEPTANCE of an offer to sell land amounts to a rejection of the offer, and a subsequent unconditional acceptance made before the offer is withdrawn does not constitute a valid contract which can be specifically enforced.

VENDOR AND PURCHASER-CONTRACTS FOR SALE OF LAND-Offer to SELL --CONDITIONAL ACCEPTANCE-PLACE OF PAYMENT. -In case of an offer by a person in one state to sell land in another state at a certain price,. an acceptance of the offer, directing the deed to be sent to a bank in the latter state, to be delivered on payment of the purchase money, does not create a binding contract, as such offer, not mentioning the place of payment, entitles the vendor to payment at the place of his residence.

G. A. Neal and Cole & Ditty, for the appellant.

Johnson & Lucas, for the respondent.

670 BURGESS, J. This is an action for specific performance of a contract of sale, by defendant to plaintiff, of eighty acres of land, to wit: East half of the northeast quarter of section 36, in township 38, range 28, in St. Clair county, Missouri. Plaintiff bought the land at a sale of it for taxes, and subsequently sold it to one Larkins, who took possession of and improved it.

The petition avers that defendant owns the patent title to the land, which he, for and in consideration of the sum of four hundred dollars, to be paid to him by plaintiff, agreed and promised in writing to convey to him, plaintiff, and that he is ready and willing to pay said purchase money, here offers to do so, and prays that defendant be required to comply with the terms of his contract, and for all proper relief. The answer is a general denial. Defendant had acquired the patent title to the land, and plaintiff began negotiating with him for its purchase, and wrote to him in regard to the matter. To this letter defendant replied from Washington City, where he then resided, as follows:

671 "WASHINGTON, D. C., Feb. 26, 1890. "F. Egger, Esq., Appleton City, Mo.,

"DEAR SIR: Your letter of December 30 was addressed to me at Osceola, Missouri, and, although I was in Osceola about that time, I received all my mail at Lowry City, and the letter laid at Osceola for some time, and, when forwarded to me here, went wrong in some way, and I only received it a short time ago.

"Your letter was a very kind one under the circumstances, and I will try to act in the same spirit; and, although we are somewhat apart in our views of this matter, I hope we can adjust it now and in good feeling. When I first purchased these titles I assure you that I did not know that it would in any way bring me in conflict with you or your interests,