Page:North Dakota Reports (vol. 48).pdf/665

 “This matter came before the court on an objection to any evidence being introduced on the ground that the complaint did not state facts sufficient to constitute a cause of action, and more particularly on the grounds that the article charged as libelous was not actionable or libelous per se, and no special damages were claimed in the complaint, being really a demurrer to evidence. The court, while being of the opinion that the article in question was not on its face actionable per se, decided io overrule the objection and let the case go to trial, so that all the facts could come out on the trial and would then be in a better position to decide the question, and so informed counsel, but plaintiff’s counsel stated to the court that if the court later in the trial of the case, after hearing the matter, would finally decide that the article was not actionable per se, that he would prefer that the court pass upon the question on the merits now rather than go to trial and eventually do so. The counsel for plaintiff therefore in open court conceded and stipulated that the first publication was not libelous or actionable per se, and that the second article which he claimed was actionable per se was written by defendant in answer or reply to an aritclearticle [sic] written and published by plaintiff himself, and that the article set forth in the answer was a correct copy of the article written and published by plaintiff, and which the second article was an answer to, and further conceded in open court that, under those circumstances, if the court would later on the merits hold the second article not to be actionable per se, he was out of court, as he had not alleged any special damages and could not prove any, and asked the court that, if he would, under all the facts in the case, hold that the second article was not actionable per se, he would prefer the court to so decide the case without taking up the time of a trial, and the court took plaintiff’s counsel at his word, and at his request decided the matter without taking the time to try the case. Therefore the decision was based, not on a demurrer to evidence on the pleadings, but on certain stipulations and conceded facts, and was really a decision on the merits on stipulation and conceded facts.”

Hence, for the purpose of testing the sufficiency of the complaint, the statement charged to be libelous must be considered in light of the existing circumstances. In other words, the complaint must be construed as though it averred that the plaintiff had caused to be published of and concerning the defendant the statement set forth in the answer (and hereinabove set forth), and that the last statement published by the