Opinion of the Court, per MILLER, J. mination of the question whether exemplary damages should be given. We have examined the authorities cited by the defendant to sustain his position, and we think that none of them are in conflict with the rule laid down in that portion of the charge which has been discussed. Some other questions are made as to the rulings of the court in reference to the admission of evidence. The question put to the plaintiff as follows: "State what efforts you made to regain your business, and what opposition or hindrance you met with on account of this libelous article," was properly admitted. The plaintiff having proved that the amount of his receipts had largely diminished since the publication of the alleged libel, he had the right to show that he had endeavored to counteract its effect, and in doing this he met with opposition which was attributable to the publication of the libelous article in question. We think that the motion to dismiss the complaint was properly denied. It was made upon the grounds that the article did not bear the construction placed upon it by the innuendo in the complaint, that is, that the defendant intended to charge the plaintiff with murder, etc., and second that there is no proof that the defendant intended to so charge the plaintiff. The article reflected severely upon the character and conduct of the plaintiff, and the complaint, after setting forth the libel, contained the allegation that he thereby meant to accuse the plaintiff of the crime of murder, or being accessory thereto, and meant and intended to have it understood that the plaintiff had been guilty of the crime of murder, and had murdered and concealed a man in his cellar, or that he was the accessory of such crime. These allegations sufficiently state that the alleged libelous matter charged the plaintiff with murder, and it is difficult to see upon what ground it can be claimed that, upon a motion to dismiss the complaint, they were not sufficient. It is no answer to say that they were ambiguous and uncertain, for even if such was the case any question as to their meaning might be submitted, upon proper requests, to the consideration of the jury. This not being done we think that the defendant is not in a position to claim that there was 94 64 119 395 Statement of case. the error in denying the motion to dismiss the complaint upon first ground stated. Neither can it be said, as the case stands, that there was no proof that the defendant did intend to charge the plaintiff as alleged in the complaint. In the cases cited by the appellant's counsel to sustain the point last urged, the distinct question was raised and left to the jury as to the meaning of the alleged libelous publication. (See Sanderson v. Caldwell, 45 N. Y. 398; 6 Am. Rep. 105, and Maguire v. Knox, 5 Irish R. Com. L. 408.) In the case at bar the judge left it to the jury to determine whether the charge of murder was imputable to the defendant, and in this respect the charge was favorable to him. The subsequent portion of the charge, that any thing which held the plaintiff up to scorn or ridicule, any thing that degrades or disgraces him in the eyes of men is libelous, and that the article was libelous per se, was not inconsistent with the portion last referred to, and it cannot be said on that ground that the judge took away from the jury the right to consider the article and to determine whether that charged the plaintiff with murder. It might well be that the jury found that murder was not charged and still that the article in question was libelous per se in other respects. We have examined all the other questions raised and in none of them do we find any ground for reversing the judgment. The judgment should be affirmed. All concur. HENRY HENTZ et al., Respondents, v. HENRY A. MILLER, AP pellant. The real owner of personal property is only estopped from asserting his title to it when and so far as he has allowed another to have the appearance of ownership. H. M. Cutter & Co., cotton brokers, falsely and fraudulently represented to plaintiffs that they had orders from the F. M. Co. to purchase for it one Statement of case. hundred bales of cotton, and relying thereon, plaintiffs contracted to sell that quantity to the corporation named. Bought and sold notes in the usual form were delivered by plaintiff's brokers, in which the sale was stated to have been made to said corporation. The notes contained the following: "Payment guaranteed by H. M. Cutter & Co. Bill to H. M. Cutter & Co." No bill, warehouse receipt or other muniment of title was in fact delivered to Cutter & Co. The cotton was delivered to that firm to be delivered to the supposed purchaser; they placed it in a warehouse, obtained advances upon the warehouse receipts, and it was subsequently sold to bona fide purchasers. In an action to recover possession of a portion of the cotton, held, that the transaction, by means of which Cutter & Co. obtained possession, was a larceny; that the words "Bill to H. M. Cutter & Co." amounted merely to a memorandum, and taken with the rest of the contract imported that when the bill was made out to the purchaser named, it was to be sent to Cutter & Co.; and that as plaintiffs had delivered to that firm no symbol of property, or indicium of title giving an appearance of ownership, they were not estopped from asserting their title and were entitled to recover. (Argued October 13, 1883; decided November 20, 1883.) APPEAL from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made January 19, 1881, which affirmed a judgment in favor of plaintiff, entered upon the report of a referee. This was an action of replevin to recover certain bales of cotton. The facts were stipulated and are substantially as follows: Plaintiffs, being the owners of some two hundred bales of cotton, sent samples thereof to Weld & Co., their brokers, to obtain purchasers. On January 4 and 5, 1878, Henry M. Cutter, of the firm of H. M. Cutter & Co., cotton brokers in said city, falsely represented to Weld & Co. that his firm had orders from the Freeman Manufacturing Company, of North Adams, Mass., and the Renfrew Manufacturing Company, of South Adams, Mass., to buy cotton for them, one hundred bales each, and proposed to buy plaintiffs' cotton to fill said orders. This offer was communicated to plaintiffs, who accepted it. Bought and sold notes containing the names of plaintiffs as sellers, and of said manufacturing companies respectively as SICKELS VOL. XLIX. 9 Statement of case. buyers were made out and delivered by Weld & Co., in the usual manner, the terms being "cash in ten days." In these notes appeared the words "payment guaranteed by H. M. Cutter & Co.," "bill to H. M. Cutter & Co." In pursuance of said supposed sales plaintiffs delivered the cotton, including the bales in suit, to Weld & Co., by whom it was delivered to H. M. Cutter & Co., "for the purpose of being by them shipped to the supposed purchasers, respectively." No muniment or indicium of title of any kind was delivered to Cutter & Co., or any document whatever except said bought notes, and the said delivery of the cotton by sellers' brokers to buyers' brokers was made in "the usual course of business in such cases." Cutter & Co., instead of shipping the cotton, stored it in a warehouse in the city of New York, and took negotiable warehouse receipts for it, at first in their said firm name, but afterward, at Cutter's request, and "in order to facilitate Cutter & Co. in raising money on said cotton," the warehouseman, issued new warehouse receipts in the name of G. H. Price & Co., who thereupon, at Cutter's request, by hypothecating the said receipts, raised money on them and paid it over to Cutter & Co., and then sold the cotton to Ralli Brothers, who, upon delivery to them of the warehouse receipts indorsed by Price & Co., and by the intermediate holders who had advanced the money thereon, and after they had received the cotton itself, paid for it at market rates, and had the same removed and stored in defendant's warehouse. On January 10, 1878, Cutter & Co. absconded, and it was then first discovered by plaintiffs and defendant that said firm had no orders from either of said manufacturing companies to buy any cotton, and that Cutter's statements in that behalf were utterly false. Neither of said manufacturing companies ever assumed, adopted or ratified said pretended purchases, or received any of said cotton, or any of the proceeds thereof. Plaintiffs had no knowledge of the fraudulent acts of Cutter or his firm, until after they had absconded. Thereupon, the bales in suit being found in defendant's warehouse, possession was demanded and was refused. Statement of case. Frederic R. Coudert for appellants. Cutter was not guilty of larceny. (Zinc v. People, 77 N. Y. 126; People v. Call, 1 Denio, 123; 2 Bishop's Crim. Law, 817; Regina v. Barnes, 2 Den. C. C. 59; 1 Eng. L. & Eq. 579; Ross v. People, 5 Hill, 294; Mowrey v. Walsh, 8 Cow. 238; People v. McDonald, 43 N. Y. 61; Smith v. People, 53 id. 111) Any one who obtains goods under false pretenses can by estoppel create a valid title to a bona fide purchaser as against the person defranded. (Paddon v. Taylor, 44 N. Y. 375; Saltus v. Everett, 20 Wend. 268-270; Mowrey v. Walsh, 8 Cow. 238-245; Parker v. Patrick, 5 Term R. 175; Armour v. Mich. C. R. Co., 65 N. Y. 116; Bassett v. Spofford, 45 id. 392; Weyman v. People, 4 Hun, 515; Zink v. People, 6 Abb. N. C. 429; Loomis v. People, 67 N. Y. 322-325; Smith v. People, 53 id. 111; Barnard v. Campbell, 55 id. 465; Covill v. Hill, 4 Denio, 323; McNeil v. Tenth Nat. B'k, 55 N. Y. 325; Ballard v. Burgett, 40 id. 314; Marine B'k v. Fiske, 71 id. 358; Craig v. Marsh, 2 Daly, 61; Babcock v. Lawson, 20 Alb. L. J. 407; People v. Johnson, 12 Johns. 291; Regina v. Barnes, 2 Den. C. C. 59; Ross v. People, 5 Hill, 294; People v. McDonald, 43 N. Y. 61; Parker v. Patrick, 5 Term R. 175; Peer v. Humphrey, 1 H. & W. 28; Root v. French, 13 Wend. 570; Watson v. People, 33 Hun, 81.) One obtaining goods by fraudulent representations of agency is guilty, not of larceny, but of obtaining goods under false pretenses. (Craig v. Marsh, 2 Daly, 61; People v. Johnson, 12 Johns. 291; Rex v. Atkinson, 2 East's P. C. 669; 8 Cow. 243; 2 Bishop on Crim. Law, § 441; Commonwealth v. Hulbert, 12 Metc. 416; Reg. v. Davis, 11 Cox's C. C. 181; McCorkle v. State, 1 Coldw. 333; Reg. v. Robinson, 9 L. Canada, 278; Higgins v. Moore, 34 N. Y. 422; French Penal Code, art. 405; Italian Penal Code, art. 626; Cass 18 Nov. 1837; S. V. 88, 1366.) M. A. Prentiss for respondents. Cutter's offense was grand larceny. (4 R. S., chap. 1,tit. 3, art. 5, § 78; Collins v. Ralli et al., 20 Hun, 246, 251; Loomis v. People, 67 N. Y. 322; Zink v. People, 6 Abb. N. C. 424, 413-14; Ward v. People, 3 Hill, |