Clark v. Thompson

• Decision Date: 26 February 1901
• Citation: 160 Mo. 461,61 S.W. 194
• Parties: CLARK v. THOMPSON et al.
• Court: Missouri Supreme Court

61 S.W. 194

160 Mo. 461

CLARK v. THOMPSON et al.

Supreme Court of Missouri, Division No. 2.

February 26, 1901.

MALICIOUS PROSECUTION—ATTORNEY—ASSISTING IN PRELIMINARY EXAMINATION—GOOD FAITH—LIABILITY—PROBABLE CAUSE—SUBMISSION TO JURY—INSTRUCTION—REFUSAL —EVIDENCE TO SUPPORT.

1. Plaintiff purchased cattle of G., and the next day after their delivery one of them died. In negotiating for a second lot of cattle, G. made an allowance of $25 for the one that died. Plaintiff paid with a draft, but, after taking the cattle, stopped payment by telegram, and deposited a less sum than the agreed price to G.'s credit, which G. accepted on account. The defendant (G.'s attorney) wrote plaintiff, demanding the balance withheld, and on refusal laid the matter before the prosecuting attorney, who, on his own responsibility, brought a criminal prosecution against plaintiff, but defendant assisted in the preliminary examination, which resulted in plaintiff's discharge. Held, that it was proper, in an action for malicious prosecution, to direct a verdict for defendant, since he acted in good faith as G.'s attorney.

2. Where, in an action for malicious prosecution, the facts, if true, showed probable cause, it was proper to submit such question to the jury under instructions as to what constituted probable cause.

3. Where plaintiff obtained defendant's cattle by giving him a draft, on which plaintiff immediately stopped payment, and there was no evidence that a criminal prosecution against plaintiff was commenced for the purpose of collecting the debt, an instruction that, if the criminal charge was instituted for the purpose of collecting the debt, such action of itself constituted "probable cause," was properly refused.

Appeal from circuit court, Lewis county; E. R. McKee, Judge.

Action by Hugh M. Clark against B. F. Thompson and another. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

In January, 1895, defendant Graves sold the plaintiff some cattle, and plaintiff employed him to deliver them at Gosney's, near Labelle, Mo. Among the cattle was a bull, which died the next day after it reached Gosney's. On the 30th of the succeeding October plaintiff bought seven head of other cattle of defendant Graves. During the negotiations Graves priced the cattle at $200. For the first time plaintiff made the claim that defendant owed him $25 for the bull that died. While denying the claim, it seems that was considered, and defendant sold plaintiff the seven head for $170, for which plaintiff gave defendant a draft on the Farmers' & Merchants' Bank of Monroe City, Mo. Graves cashed the draft that same evening at the Lewistown Savings Bank. Plaintiff drove the cattle to Gosney's, and while there told Gosney he now had a chance to get even with Graves, and was going to stop payment on the draft. He proceeded to Labelle, and wired the bank at Monroe City to stop payment of the draft, and it was dishonored, and the protest fees, amounting to $2.50, collected of defendant. After reaching home, the plaintiff wrote to defendant he had placed $145 in the bank subject to his draft. After consulting the banker through whom he had drawn, defendant concluded to take the $145 on account, and it was paid. He then laid the matter of the balance before the defendant Thompson, who was a lawyer and business man. Thompson thereupon wrote plaintiff: "B. F. Thompson, Attorney at Law and Judge of Probate. Labelle, Mo., Nov. 12, 1895. H. M. Clark, Esq., Monroe City, Mo.— Dear Sir: In the matter of the purchase of the Graves cattle, will you kindly send me the $25.00 you attempted to take out of the purchase money for the cattle, together with the protest fees made by your action, in the sum of $2.50? We do not do business in that way in Lewis Co. If you are not fully informed as to the law applicable to such action as this, consult your Atty. at once, and greatly oblige yourself. I make it a rule in my business to give every man an opportunity to get right if he is wrong. Yours, truly, B. F. Thompson, Atty. for Graves." Receiving no reply, defendant Graves went to the prosecuting attorney of Lewis county, and stated all the facts of the transactions between himself and Clark, and the prosecuting attorney told him he would examine into the matter. Some days later he advised him that, in his opinion, Clark was guilty of obtaining the cattle by means of a trick and a deception, and prepared an affidavit for defendant to sign, and also an information based thereon. He sent the papers to Mr. Thompson, with request to have defendant Graves sign the affidavit and file the papers before the justice...