Mowry

This appeal is from an order granting defendants a new trial.

Plaintiff was a retail butcher, doing business at the comer of Grove and Laguna streets, San Francisco. The defendants constitute the “ Butchers’ Protective Union.”

In July, 1886, they printed and circulated a great number of circulars, or dodgers, which read as follows:—

It was alleged in the complaint that by this circular defendants intended to, and did, charge that plaintiff *608 was engaged in selling his customers Chinese pork and lard, which contained the seeds of disease, and spread pestilence and death.

The defendants admitted the publication, but denied that it was malicious, and averred that it was true. On the trial, they offered evidence tending to prove that plaintiff purchased some pork from Chinese, which he sold to his customers, and also that the Chinese often sold diseased pork; but none which proved or tended to prove that the pork plaintiff sold was diseased, or would spread the seeds of disease and death. On the contrary, defendants’ own witness testified that the particular pork sold by the plaintiff was sound, wholesome food.

The learned judge held, and we think correctly, that the…