Ewe v. Angland

• Decision Date: 01 May 1945
• Docket Number: Gen. No. 43034.
• Citation: 60 N.E.2d 774,325 Ill.App. 677
• Parties: EWE v. ANGLAND.
• Court: United States Appellate Court of Illinois

325 Ill.App. 677

60 N.E.2d 774

EWE

v.ANGLAND.

Gen. No. 43034.

Appellate Court of Illinois, First District, Second Division.

April 19, 1945.

Rehearing Denied May 1, 1945.

Appeal from Superior Court, Cook County; John P. McGoorty, Judge.

Action by William F. Ewe against Maurice P. Angland to recover on certain promissory notes, wherein defendant filed separate counterclaims seeking recovery for malicious prosecution and for malicious abuse of process. Judgment for defendant on the original cause of action, and for plaintiff on the counterclaim for malicious abuse of process, and in favor of counterclaimant on the counterclaim for malicious prosecution, and plaintiff appeals and defendant cross-appeals.

Reversed in part and in part affirmed.Cariepy & Gariepy, of Chicago (Fred A. Gariepy and John Spalding, both of Chicago, of counsel), for appellant and cross-appellee.

Bruce S. Parkhill, of Chicago, for appellee and cross-appellant.

SCANLAN, Justice.

A complaint filed by William F. Ewe alleges that he was the holder of five promissory notes, payable to his order, the total sum of the notes being $2,700; that they were executed by Maurice P. Angland and were overdue and unpaid. The amended verified answer of Angland interposes the defense of lack of consideration and the further defense that he was coerced into signing the notes in consequence of the institution by plaintiff of criminal proceedings against him, in which he was charged with embezzling certain securities of plaintiff; that after his arrest in said proceedings he executed and delivered the notes ‘against his will and solely by reason of such duress, coercion and threats,’ and he ‘was induced to make and sign said notes by the plaintiff through threats of criminal prosecution and imprisonment.’ Angland filed a counterclaim, in which he alleges that said criminal proceedings were instituted by Ewe maliciously and without probable cause, Ewe knowing that defendant had not converted any securities belonging to plaintiff, and damages are alleged in the amount of $50,000. Angland also filed a second counterclaim alleging that Ewe was guilty of a malicious abuse of process in said criminal proceedings, and prays for damages in the sum of $5,000.

After a trial by the court without a jury, the following judgment order was entered:

‘This matter coming on to be heard upon the respective motions of the parties for judgment, the Court having fully considered the evidence introduced at the trial and the arguments and briefs of the respective attorneys and being fully advised in the premises,

[A] ‘It is hereby ordered, adjudged and decreed that judgment be and hereby is entered for the defendant, Maurice P. Angland, upon the complaint and amendments thereto and additional counts of the plaintiff, William F. Ewe, for recovery on several notes sued on.

[B] ‘It is further ordered, adjudged and decreed that judgment be and is hereby entered for the counterdefendant, William F. Ewe, and against the counterclaimant, Maurice P. Angland, upon the counter claim for malicious abuse of process.

[C] ‘It is further ordered, adjudged and decreed that judgment be and is hereby entered for the counterclaimant, Maurice P. Angland, against the counterdefendant, William F. Ewe, upon the counterclaim for malicious prosecution for the sum of Five Thousand Dollars ($5,000.00) and costs of suit; to all of which plaintiff, William F. Ewe, hereby duly objects and excepts, except as to the finding and judgment on malicious abuse of process herein made.’

William F. Ewe, plaintiff and counterdefendant, appeals from that part of the judgment order designated [A] and also from that part designated [C]. Maurice P. Angland, defendant and counterclaimant, appeals from that part of the judgment order designated [B] and also appeals from the amount of damages awarded him in that part of the judgment order designated [C] upon the ground that the amount awarded him was grossly inadequate, and he asks that this court, without remanding the cause, increase the amount of the damages.

Appellant, Ewe, contends that there was a valid consideration for the notes and that the trial court erred in finding for defendant upon plaintiff's complaint. After a careful review of the evidence we are satisfied that there are certain salient facts that show clearly that there was no consideration for the notes and that Angland executed and delivered them to Ewe under duress. Angland was president and treasurer of Angland & Company, Inc., a corporation engaged in the securities business in Minneapolis, and he owned 490 shares out of 1,000 shares issued. Ewe, a customer of the corporation, had about thirty transactions with it during 1936 and 1937. While all of his transactions were handled by Angland, it is clear that his dealings were with the corporation. Ewe testified that all of his business dealings were with Angland & Company and that when that company purchased securities for him he paid for them by his personal check to that company; that any checks he received on account of the transactions were checks of the company. He wrote letters to the company in reference to the securities and received from it receipts and confirmations of orders. He had no trouble with Angland & Company until the last transaction. He testifies that on March 15, 1937, he turned over to Angland & Company two bonds, each for $1,000, and one $2,000 bond, with instructions to sell them, and that they were sold; that he received a receipt from Angland & Company for the securities; that he instructed the company to purchase a $1,000 Continental Roll and Steel Foundry bond out of the proceeds, which was purchased by the company and turned over to him in August 1937; that there was then due him from Angland & Company $3,597.85; that when he deposited the two bonds he gave instructions to remit to him the balance after sale; that he called up Angland about ten times for the purpose of getting a check for the balance due him; that Angland was never in when he called and never called Ewe back. Angland introduced testimony to the effect that there was a standing agreement with Ewe that balances in his favor were to be kept on deposit with the company to be used for future purchases by Ewe; that about the middle of September, 1937, Ewe was in the office of Angland & Company and in a talk he had with Paul Semple, an employee of the company, Semple told Ewe to wait and they would give him a check for the balance due him and that Ewe replied, ‘No, never mind. I will be buying something else here. Just let it stay.’ The Dodd-Jones industrial averages for stocks reached a peak of about 190 near the end of August, 1937, and then in the course of two months the averages fell to 113. On October 25, 1937, Angland & Company went into receivership and a receiver was appointed on that day. Between July 28, 1937, and the date of the receivership it paid out to customers a total of approximately $850,000. Ewe testified that maybe a month before he swore to the complaint against Angland he consulted with his attorney, Maag, about filing a claim in the receivership proceedings, and that later, after the criminal case had been dismissed, he filed a verified proof of claim against Angland & Company in the receivership matter, in which he stated:

‘I. That on or about the 28th day of July, 1937, your Petitioner delivered to the defendant [Angland & Company, Inc.] the following bonds: $2,000, State of South Dakota Soldier's Bonus, sixes, 9/1/41, and $2,000 Canadian National Railway, fives, due 69, for the purpose of having said bonds sold and the proceeds thereof turned over to your Petitioner, and that said bonds were sold for a total amount of $4,617.68.

‘II. That no part thereof has been paid by the Defendant to your Petitioner, except the sum of $1,019.83, leaving a balance due of $3,597.85.

‘Wherefore, Your Petitioner, W. F. Ewe, prays that his claim in the sum of $3,597.85, with interest thereon from and after the 28th day of July, 1937, be allowed herein as a claim against the above-named receivership estate.’

On January 3, 1938, Ewe swore to a complaint in the Municipal Court of the City of Minneapolis, in which he charged ‘that on or about the 28th day of July, A. D. 1937, within the corporate limits of the City of Minneapolis, Hennepin County, Minnesota, Maurice P. Angland, then and there being and then and there having in his possession, custody and control as agent, servant and bailee of one William F. Ewe, two (2) one thousand dollar Canadian National Railway bonds 5 per cent payable 10-1-1969, bearing certificate numbers M 19994 and M 19987, respectively, and of the total value of Two Thousand Three Hundred Eighty-eight and 1/100 Dollars, a more particular description of said property being to the complainant unknown, the property of, and belonging to, the said William F. Ewe, as aforesaid; that the said Canadian National Railway bonds were then and there delivered to the said Maurice P. Angland by the said William F. Ewe, for the following purposes, to-wit: That he, the said Maurice P. Angland, should forthwith sell the said bonds for the sum of Two Thousand Three Hundred Eighty-either and 1/100 Dollars in cash money, and that he, the said Maurice P. Angland, shall forthwith and immediately then and there turn over said Two Thousand Three Hundred Eighty-eight and 1/100 Dollars to the said William F. Ewe, and that in case said Maurice P. Angland should fail to sell said bonds as herein stated, then he, the said Maurice P. Angland, should then and there and without delay return said bonds to the said William F. Ewe, and for no other purpose; that the said Maurice P. Angland completely failed to carry out the purposes for which said bonds were so entrusted to the said Maurice P. Angland, as herein stated, but did then and there, wilfully, unlawfully, wrongfully, knowingly and feloniously appropriate said property to his own use and...