Clement v. Major
| Decision Date | 08 February 1892 |
| Parties | CLEMENT v. MAJOR. |
| Court | Colorado Court of Appeals |
Appeal from district court, Arapahoe county; J.A. BENTLEY, Judge.
Action by Charles F. Clement against James S. Major for malicious prosecution. The court granted a nonsuit, and plaintiff appeals. Reversed.
F.A. Williams, for appellant.
Wm. T Rogers, for appellee.
This was an action brought by the appellant in February, 1890, to recover damages for his arrest and imprisonment on criminal proceedings alleged to have been instigated against him by Major. They were initiated by a complaint sworn to by the defendant, and filed with a justice. It was contended that in instituting and carrying on this proceeding the defendant acted maliciously and without probable cause. The cause came on for trial before a jury, and upon the conclusion of the plaintiff's testimony he was nonsuited. It is this error which furnishes the basis of the present appeal. The nature of the action, and the ruling of the court upon the motion for a nonsuit, raised but one question entitled to consideration, and that was as to the existence of probable cause. A statement of the evidence in this respect is essential to a clear understanding of the case. It appeared that in the spring of 1889 one Betts and the defendant Major were occupants of the same office in Denver, and in some way had learned that Clement was the owner of certain property located in the city of Denver. It would appear that Major was desirous of obtaining an option on this property, and that at his request Betts wrote a letter to Clement, which substantially stated that he had a purchaser for the two lots at a price named, payable partly in cash and the balance in one and two years, at 8% interest, secured by a trust-deed on the property. The vendor was to give a good title and to furnish an abstract. The letter directed Clement to telegraph Betts at once if he would accept the proposition, and concluded: This letter was signed by Betts. Clement telegraphed, "Accept, if $50 forfeiture is paid." It is clear from the testimony that of this letter and dispatch Major had full knowledge, the letter being probably written at his suggestion. The dispatch was shown him, and on the day of its receipt Betts, as the agent of Clement, undertook to enter into a written contract with Major to sell him the property at the price named in his original letter, with payments according to its specification, save that there was no provision in the contract that the deferred payments were to be secured by a trust-deed upon the property. It provided for a warranty deed by the 1st day of June, 1889, and made provision that the $300 might be tendered or paid at that date. It likewise contained a provision that the contract should be void, and both parties released, and the $50 held as liquidated damages, if the $300 was not paid at the date named. This contract was signed, "Charles W. Betts, Agent for C.F Clement." Subsequently, and in the execution of this option, Betts prepared a deed for the lots to one Innman, and sent it to Clement for execution. It was executed and acknowledged by Clement at Aspen on the 30th of May, and returned to Betts, with instructions not to deliver it until some arrangement was made whereby the parties purchasing should either take up a matured and outstanding incumbrance on the property, or provide for it in this deal. This condition led to a failure to complete the sale on the day named in the agreement. Afterwards Clement came to Denver, and entered into somewhat extended negotiations with the parties. Major refused to carry out the deal on those terms, unless Clement would submit to a very considerable discount from the money to be paid. This he declined to do. So far as can be gathered from the record, the dispute developed a good deal of bad blood between the parties. Major insisted upon his deed, regardless of the incumbrance, put his option upon record on the 22d of June, and evidently impressed Clement with the idea that he intended, in any event, to enforce that contract as against him. Clement, apparently being unfamiliar with business ways and methods, and fearing lest he should lose his property, made a voluntary deed to F.M. Binney, of Amesbury, Mass., and put it on record himself, thinking, evidently, that if the property was thus deeded he could not lose it through any action which might be taken by Major. It appeared in testimony that this deed was without any consideration, and that its execution and record were unknown to the grantee, who was a lady and a friend of Clement, residing in Amesbury. Shortly after this deed got upon record, Major filed a complaint, under the statute, charging Clement with having conveyed to another person, for a valuable...
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