Cohn v. Saidel

• Decision Date: 04 December 1902
• Citation: 71 N.H. 558,53 A. 800
• Parties: COHN v. SAIDEL et al. (two cases).
• Court: New Hampshire Supreme Court

53 A. 800

71 N.H. 558

COHN

v. SAIDEL et al. (two cases).

Supreme Court of New Hampshire. Merrimack.

Dec. 4, 1902.

Exceptions from superior court.

Actions by Isador Cohn against Leon Saidel and another. Verdict for plaintiff, and defendants bring exceptions. Verdict set aside.

The declarations alleged a conspiracy between the defendants and one Clark to injure the plaintiff in his business. For some time prior to April 17, 1899, the plaintiff and the defendants were partners in the tailoring business in Concord; the plaintiff having charge of the shop and business. On that day the defendants sold their interest therein to the plaintiff for $250. On July 11, 1899, the defendants brought two suits against the plaintiff, and his stock was attached and sold under the statute by the officer. One of the actions so brought by the defendants against the plaintiff was for deceit in the purchase of the defendants' interest in the partnership business. The other was assumpsit, upon the common counts. On the same day Clark brought suit against the plaintiff for breach of contract, and attached his stock in trade. The three suits were entered at the October term, 1899, and continued. At the April term, 1900, they were marked for the jury by the present plaintiff, but the plaintiffs in the actions became voluntarily nonsuit, and thereafter paid the costs. The defendants excepted to evidence that after they brought their suits they attempted to induce one Spaulding, a wholesale dealer in Boston, not to furnish goods to the plaintiff, and that, soon after the defendants became nonsuit, Leon Saidel, one of the defendants, told another witness he had made it cost the plaintiff quite a sum, and he did not want to carry the cases into court, and risk having to pay costs. Davis, a deponent was asked (interrogatory 4) whether prior to July 11, 1899, he heard conversations between Clark and Leon Saidel, or any one else, regarding the bringing of suits against Colin. He replied that he had heard several conversations between Clark and one Clifford regarding a suit by the former, and that on some of these occasions Leon Saldel was present The conversations testified to tended to prove that Clark and Saidel were influenced by malice, and that their suits against Conn were to be joined for the purpose of making the claim as large as possible, and driving him out of business. The question and answer were read subject to the defendants' exception to the admission of evidence of conversations which took place in the absence of Saidel. The following questions and answers contained in Davis' deposition were admitted in evidence, subject to the defendants' exception: "Int 6. What reason did Clark and Saidel give for desiring to put you in as keeper? Ans. Well, the idea was that, after suit was brought and goods were removed, they could use the place to do business in. Int. 7. And how was your acting as keeper to assist them in doing business in that place? What did they purpose to have you do, as they stated to you? Ans. I was to be the keeper, and the same time do business for them; cutting; do tailoring business there. Int. 8. You may state who was present and took part in the convesation or conversations in which the intention was expressed of making the claim against Coha so heavy that it would drive him out of business, and Clark and Saidel could get his place of business? Ans. Mr. Clark, Mr. Clifford, Mr. Saidel, and myself were present. Mr. Clark exclaimed in his emphatic manner that he would have such £n amount that; he could not get any bond: he could do nothing; he would have to go out of business; then we could take the store, and do what business we wanted in the stare; and that he would drive that fellow out of this town. Int. 10. You may state whether Clark and Saidel came to an agreement as to the proposition of combining their claims in one suit, and, if so, whether they decided to try to do it, or not to make the attempt? Ans. I know one time when Mr. Clark was up there, the first of my being in the store, one morning he came over, and Mr. Clark said, 'Mr. Saidel, we will go down and see the lawyers, and have the thing fixed right up, and go right at it both together.' Int. 46. You may state whether the conversations about bringing suit for the purpose of driving Cohn out of business ceased or continued after Clark and Saidel had abandoned the idea of joining their claims in a single suit? Ans. They did not cease until after they found out they were powerless to obtain Mr. Conn's place of business. They found that out. Mr. Clark could not get hold of the business as he thought he could. He thought he could go in and remove Mr. Cohn, and get his place of business." The defendants alleged that the plaintiff had brought the present suits maliciously and without probable cause, and, in support of this contention, offered in evidence the fact that he had bought of one Foster a claim against the defendants amounting to $20, had brought suit thereon, and had made an attachment in the suit. The evidence was excluded, and the defendants excepted. They also excepted to the ruling of the court permitting the plaintiff to send to the jury room the deposition of Leon Saidel in the suits complained of, and to the denial of their motion that a verdict be directed for Isaac Saidel, one of the defendants. Leon Saidel testified that, before the defendants brought their suits, Clark told them that the plaintiff said that prior to buying the defendants out he had taken out of the stock the heavy-weight goods and black goods, so that the stock would appear small; that he had collected and had not accounted for a large sum of the firm's money; that he had told Saidel there was $500 or $600 in stock, when in fact it was worth a great deal more; and that he had said the accounts due were not good, when in fact they were collectible. Saidel further testified that upon receiving this information he consulted counsel, and told him all he knew about the matter and all that Clark had told him; that his counsel advised the defendants that they had good causes of action against the plaintiff; and that they acted upon that advice in bringing their actions. This testimony was not directly contradicted. Evidence of conversations between Clark and Saidel in the absence of the plaintiff was admitted, subject to the hitter's exception. At the close of all the evidence, the defendants' motion that a verdict be directed for them was denied, subject to exception.

The defendants requested the court to give the jury the following instructions, among others; "The mere failure of the prosecution (that is, the suits brought by these defendants against this plaintiff) does not establish a want of probable cause. To maintain the present actions, the plaintiff must satisfy the jury by a preponderance of evidence of the existence of the two essential elements of his case, viz.: (1) That the defendants acted maliciously in bringing the suits against the plaintiff; (2) that the defendants acted, in bringing the suits against the plaintiff, without probable cause. The question of probable cause does not depend upon whether the plaintiff was guilty of the offense charged in the defendants' writs, but depends wholly upon the defendants' honest belief of the plaintiff's guilt, based upon reasonable ground The defendants were at liberty to act upon, the appearances; and, if the apparent facts were such that a discreet and prudent person would be led to the belief that the plaintiff had done the acts complained of, the defendants are not liable in this action, and your verdict will be for the defendants, although upon the whole evidence you may believe that the plaintiff did not do the acts complained of, and that the defendants were mistaken in their belief that he did. If there was probable cause for the actions brought by the defendants, of which cause the defendants were informed at the time they brought the actions, the Justification is complete, and it is immaterial whether the defendants were actuated by malice or not" The court refused to give the particular instructions requested, and the defendants excepted.

So far as it is material, the charge to the jury was as follows: "Now we come to the gist of this case. The plaintiff here brings this suit against the Saidels because he says they brought those two suits maliciously,— that they conspired with Clark and brought those suits maliciously against him to injure him, to drive him out of business, and to hurt his feelings, without reasonable cause. * * * This is the question for you to determine. * * * Regarding the real question in issue, did these Saidels, on the 11th day of July, as set forth by the plaintiff in this suit, conspire with Clark to bring these suits against Cohn for the purpose of injuring him, breaking him up in business, and otherwise injuring him, and did they do it falsely and maliciously? That is the question. * * * In determining whether they brought these suits maliciously, you will recall the evidence that the plaintiff has offered. * * * You will recall the witnesses who have appeared here on the one side or the other, and recall their testimonies, and ascertain whether the Saidels at that time entertained malicious feelings, and, if they did, whether such feelings actuated them in bringing these suits. If they brought the suits maliciously, intending to oppress and injure this man, then they must be liable; and that would bring you to the question of damages, which I will speak of later. Now, the plaintiff has introduced his own testimony, the deposition of Davis, the record evidence, and the full record of all their business. That is the evidence that the plaintiff puts in and relies upon to show that the Saidels had malice in their hearts toward him, and that on account of such malice they brought their suits, maliciously intending to injure him. * * * I wish to illustrate to you a...