Call v. Hayes
| Decision Date | 24 November 1897 |
| Parties | CALL v. HAYES. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
William H. Niles and George J. Carr, for plaintiff.
James H. Sisk, for defendant.
The complaint on which the count for malicious prosecution is founded charged the embezzlement of money. It was material for the present plaintiff to show, in support of the count that he had a right to collect the money from the complainant's customers, and to retain it until the time of the settlement between the complainant and the plaintiff which the former had appointed for Tuesday, the next day after the collection of the money. The plaintiff's testimony that the complainant, in discharging the plaintiff told him that he should hold him responsible for every cent there was on the books, and that he would settle with him on Tuesday afternoon, tended to show the plaintiff's right to collect the money. That he communicated to the complainant on Monday the information that he would make a settlement with him on Monday evening was a circumstance material to the question whether, when, on Tuesday morning, the complainant instituted the prosecution, he had reasonable cause to believe the plaintiff guilty of embezzlement. As the communication was through a third person, who testified that he delivered it on Monday to the complainant, the plaintiff's testimony that he instructed the third person to make the communication was competent, and was properly admitted.
2. The other exception relating to this count is to the refusal to instruct the jury that, upon the evidence offered by the plaintiff, he had failed to prove want of probable cause, and to return a verdict for the defendant upon the first count. Assuming that the defendant introduced no evidence, and that the evidence offered by the plaintiff was not in dispute, it was sufficient to show want of probable cause for the institution of the prosecution. The complainant discharged the plaintiff from his service on Sunday, informing him at the time that he should hold him responsible for every cent there was on his books, which implied that, if not already collected from the customers, it must be got in, and that he would settle with him on Tuesday afternoon. On being informed on Monday that the plaintiff would settle with him on that evening, the complainant declined, and caused the plaintiff to be arrested on Tuesday...
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